This article discusses international agreements such as the Declaration on the Elimination of Violence Against Women (DEVAW) and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), while examining efforts undertaken in certain precedents to include the specific rights of women within the international framework. The article explores the issues of identifying and punishing sexual violence when it comes to international obligations and state responsibility. It also discusses sexual violence as a human rights issue, the public-private divide in international law that affects women’s agency, and the understanding of their citizenship.
Introduction
The critique of international human rights law in the past decade has centred around its ‘gender myopia’ and the ‘operational ghettoization’ of the authorities who regulate such rights.[1] The critiques take the view that human rights law doesn’t see oppressive practices against women (such as domestic violence) as human rights violations because it is overly-focused on the public-private divide, ie the subversion of narratives of domestic violence as they are considered to fall in the private familial domain of society. Violence against women as a human rights issue was only formally recognised in 1993 by the international regime at the Vienna World Conference.[2] Subsequently, this recognition was instilled in DEVAW[3] and the 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women.[4]
Although these initiatives show progress towards realising women’s rights as human rights under international law, more recent initiatives focus on better implementation of these rights and strengthening the mechanisms that can aid women in specific instances, as can been seen in the Beijing Declaration, which mentions actions and initiatives to overcome obstacles and to achieve the full and accelerated implementation of the Beijing Platform for Action.[5] Some developments in the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW), such as the reporting procedure[6] under the Women’s Convention that aims to increase the effectiveness of the Convention by monitoring its implementation, can be revamped by CEDAW. However, in my opinion, the option of opting out of the simplified procedure has the potential to maintain the status quo, instead of speedy redressal as aimed for by the organisation. There have been positive outcomes from developments such as instilling the individual complaints mechanism, however, the UDHR proposition that ‘all human beings are born free and equal in dignity and rights’[7] is still not properly realised. Several international treaties and declarations have regarded all humans to be equal, such as the UN Charter[8] and the International Covenant on Civil and Political Rights.[9] However, Professor Steven Poe’s analysis demonstrates how women in almost half of the countries are in political situations where they’re unequal compared to men—either explicitly under law, or because of a lack of resources leading to a lack of representation in government.[10] This article explores the efforts made to incorporate women’s human rights as mainstream rights while pointing out laxities in the system created by the public-private divide and stereotyping of women’s citizenship.
Violence Against Women as Human Rights Abuse
In writing about how the governance of women under international law is different than that of men, MacKinnon states that ‘Human rights principles are not based on the experience of women; it is not that women’s human rights have not been violated. When women are violated like men who but for sex are like them—when women’s arms and legs bleed when severed, when women are shot in pits and gassed in vans, when women’s bodies are salted away at the bottom of abandoned mines or dropped from planes into the ocean—this is not recorded as the history of atrocities to women’.[11]
MacKinnon’s observations resonate with certain precedents and treaties. Rape, forced prostitution, pregnancy, and sterilisation via coercion, among others, are considered crimes against humanity under Article 7, and war crimes under Article 8 of the Rome Statute of the International Criminal Court. Also, international criminal tribunals have recognised the vulnerability of women during armed conflict.[12]
There have also been attempts to understand how sexual violence goes beyond physical harm. In Prosecutor v. Jean-Paul Akayesu, the International Criminal Tribunal for Rwanda highlighted that rape meant not only a sexual invasion but the existence of coercive circumstances that might not be proven due to the absence of physical or visible harm. Hence, the judgment mentions that: ‘The Tribunal notes in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal’. Sexual violence falls within the scope of ‘other inhumane acts’, set forth in Article 3(i) of the Tribunal's Statute, ‘outrages upon personal dignity’, set forth in Article 4(e) of the Statute, and ‘serious bodily or mental harm’, set forth in Article 2(2)(b) of the Statute’.[13] Even ‘threats, intimidation, extortion and other forms of duress’ would fall within the ambit of coercion, and sexual violence could be considered genocide if the intent behind it is the eradication of a group.[14]
Prosecutor v. Dusko Tadić[15] held that sexual violence could be considered ‘a widespread and systematic campaign of terror against a civilian population, even if rape itself was not widespread or systematic but was one of many types of crimes committed on a widespread or systematic basis’.[16] However, there also needs to be an emphasis on issues unaddressed by national criminal systems, such as protection against arbitrary detention, the realisation of economic rights, protection against racism, and ensuring sexual and reproductive health rights.[17] Even though organisations such as Amnesty International have worked on narratives around sexual violence, they have approached it through the lens of ‘torture’, bringing the focus to harm done to the physical body.[18] This narrative around sexual violence being referred as torture was furthered due to the reporting style of the 1980s, where claims of sexual violence were decontextualised for political reasons, which further enhanced the pain inflicted on survivors of sexual violence.[19]
While understanding that each individual needs to be treated as equal, the context surrounding their gender and sexuality cannot be avoided as it becomes important for victims of sexual violence to get exclusive remedies. The subordination of the female subject detaches them from their identity as a citizen who deserves mental health services amongst others, not just as a remedy but as instruments of transformation. This can only occur when the state views these subjects as state actors rather than vessels or ‘rape victims in need of services.[20] This transformation must incorporate aspects of sexuality as well, where outdated ideas that equate sexual health with the absence of disease are eradicated.[21]
The Private-Public Divide in International Law
The linkage of women with nation and race,[22] and the inscription of sexuality within the reproductive domain, has deemed women’s bodies powerless and untrustworthy, and pathologised sexually active non-reproductive bodies.[23] Despite measures such as DEVAW, Professor Petchesky notes that work still needs to be done to shift the economic and structural paradigm to make these rights real in their essence globally.[24] This process of making rights ‘real’ is not just about legislative action, but must include provisions for recording and recognising all violations, realising positive obligations for providing resources for effective representation, and upholding state responsibility for meeting such obligations.
DEVAW presents gender-based violence as discrimination against women,[25] and this conception is also seen in the Inter-American Convention.[26] Even though DEVAW states that women are entitled to all human rights protection, equal enjoyment, and freedom from inhuman treatment,[27] it does not establish the link between violence and these rights,[28] and fails to lay down violence against women as a human rights violation.
However, DEVAW does address the public-private divide by disallowing state parties from invoking any ‘custom, tradition or religious consideration to avoid their obligations with respect to [the] elimination [of violence against women]’.[29] This is significant because the existence of the public-private distinction has historically given states the liberty to socio-economically and culturally oppress women.[30] However, unlike the Women’s Convention, DEVAW makes states undertake due diligence to punish acts of violence against women, and these punishments only need to be in accordance with national law.[31] This ambiguity also exists in the context of effective remedies under state obligations for victims of gender-based violence.[32] Such loopholes save these nations from serious international scrutiny of domestic laws.[33]
Bodies such as CEDAW[34] and the Human Rights Council (HRC), via general comment no. 31, have spelt out that ‘States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights…’.[35] However, women subjected to sexual violence are still seen as suffering individuals in need of protection by law, rather than citizens worthy of being granted equal participation and resources.[36] These international organisations must understand that gender-based violence needs to be prevented through ex ante laws as well, by respecting their agency and not restricting them to the private domain of motherhood and sexed bodies that cannot possess socio-economic agency.
Inclusion of Specific Rights
The manner in which sexual harm has been reported by human rights groups has marginalised interrelated rights such as health-based protections, a safe environment for labour, and political equality for women. While there is a strong need to relay the stories of sexual harm, [37] I believe that idealising the aspect of chastity through stereotypes and reinforcement of private boundaries furthers violence against women. Initiatives such as changes in inheritance and land-reform laws in Rwanda have helped the social fabric move beyond viewing sexual violence as something that happens to all women. These reforms helped contextualise causes and consequences, and tried to instil remedies.
The Vienna World Conference aimed to inculcate women’s issues within the framework of human rights and bring these rights into the mainstream by emphasising the increasing cooperation between CEDAW and the Commission on the Status of Women.[38]
Similarly, cases such as Velasquez-Rodriguez v. Honduras[39] have addressed the state’s responsibility to ensure certain rights, such as the right against the systematic practice of disappearances done by military personnel or public officials.[40] The state was held responsible even when the disappearances occurred due to non-state actors.[41] The Court noted that ‘An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to the international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention’.[42]
The Court emphasised the critical nature of how the state had furthered the disappearance of the individual and not played any role by ignoring preventive measures to avoid and punish the perpetrators.[43] Hence, the judgment made the state internationally responsible if it failed to conduct its due diligence and curb systemic abuse. It is the state’s duty to protect the rights under the Convention—ensuring both the negative and positive obligations not to violate women’s rights, and prevent, investigate, and provide a remedy for violations.[44] Further, duty to prevent includes all means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal.[45] Therefore, affirmative action needs to be undertaken to change the sociocultural patterns and remove stereotypes. Conventions such as CEDAW focus on rights with respect to marriage, family planning and health care, encouraging protective legislation and inherently dealing with only heterosexual individuals. This reinforces the position of women as wives and mothers and ignores issues such as pornography, abortion, domestic violence, and the violation of rights of women that are not related to their gender.[46]
The European Convention on Human Rights has created a negative obligation to not violate individual human rights and has included the state’s responsibility to ensure that human rights are enjoyed.[47] For example, in Airey v. Ireland,[48] the European Court of Human Rights stated that failure to provide financial help to a woman who required judicial separation from an abusive partner would violate her right to respect for family life.[49] This is because the negative obligation of non-interference in family life is not sufficient, in the Court’s opinion, and the positive obligations need to be upheld to preserve private family life.[50] Hence, even though the recognition of women’s specific rights is not widespread, there have been instances where the need for them has been highlighted by recognising the importance of ex ante laws and positive obligations.
Similarly, in X and Y v. The Netherlands,[51] the Court imposed positive obligations on states even when it concerns matters between individuals.[52] This case concerned a mentally handicapped minor who was sexually abused. Even though the case referred this instance under the broad ambit of the right to respect for private life, as per Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and the right to respect for their private life guaranteed by Article 8, it recognised the lack of criminal sanctions punishing such instances.[53] The absence of an explicit right against such abuse and the availability of only civil sanctions does not deter such infringement and does not ensure effective protection of rights.[54]
Therefore, despite attempts at enshrining sufficient sanctions for violations, the lack of clear indications of such abuse in international human rights treaties is still a deterrent to progress.
Conclusion
One would have to go further to see a female victim of sexual violence as a reconstituted citizen/subjective holder of rights, as compared to the distance that one would need to travel to see a reconstituted male torture victim. This distance is a metaphor for barriers that exist, not just in law but also in society. These barriers include stereotypes around gender, sexuality, ethnicity and age. Even for men, the distance travelled will be far less if the victim is not a Roma, homosexual, sex worker, felon, or the ‘right ethnicity’. However, for females, their citizenship is covered with socio-political and cultural notions around women’s livelihood, creating a strict public-private divide. Gayle Rubin argues that the disproportionate power that works on the female object in the sexual domain operates in such a way that women’s incomplete claim on citizenship, which is already weak due to racism, neo-colonialism and state conflict, is further weakened because any sexual harm is considered to be total harm.[55] This creates a lengthy distance between sexual slavery and citizenship.
The state’s responsibility to prevent, investigate and punish is important, and failure to uphold positive obligations constitute a breach of state obligations.[56] The UN Centre For Social Development and Humanitarian Affairs, in their study on Violence Against Women in the Family, highlighted some of the responses to intimate violence—such as therapy, criminal sanctions, and inappropriate police response—where intimate violence is criminalised.[57] The police agencies’ view that enforcement of violence laws will affect family values,[58] and the reduction of state funding for women refuge centres, can be challenged at an international level as a failure of the state in enforcing ‘all appropriate measures’ to eradicate violence against women and adhere to their positive obligations.
The extended locus standi proposed by the Women’s Convention could come in useful here; however, documenting and collecting evidence of systemic failure could be difficult for individual lawyers. Finally, implementation of women’s human rights should not be restricted to the domain of CEDAW; this expansion will only be possible when there is diversity in the composition of treaty bodies and human rights organisations, alongside reporting of systemic issues that affect women’s agency apart from sexual violence.
Varda Saxena
Varda Saxena is a final year law student pursuing the five-year BA LLB (Hons) programme from Jindal Global Law School, India. She is immensely interested in commercial law and has published articles on various academic platforms such as the International Company and Commercial Law Review Journal. She has also served as an Editor-in-Chief at various law-based academic blogs and loves to read about gender and decolonisation studies.
[1] Elissavet Stamatopoulou, ‘Women’s Rights and the United Nations’ in Julie Peters and Andrea Wolper (eds), Women’s Rights, Human Rights: International Feminist Perspectives 36 (Routledge 1995) 36.
[2] Vienna Declaration and Programme of Action, UN GAOR, World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., part I, UN Doc A/CONF.157/24 (1993), reprinted in 32 I.L.M. 1661 (1993) [hereinafter Vienna Declaration].
[3] Declaration on the Elimination of Violence Against Women, adopted 23 Feb. 1994, G.A. Res. 48/104, UN GAOR, 48th Sess., Agenda Item 111, UN Doc A/Res/48/104 (1994), reprinted in 33 I.L.M. 1050 [hereinafter DEVAW].
[4] Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, ‘Convention of Belem do Par 6’, adopted 9 June 1994, OAS/Ser.L.V/ 11.92/doc.31 rev.3 (1994), reprinted in 33 I.L.M. 1534 (1994) [hereinafter Inter-American Convention].
[5] Fourth World Conference on Women: Action for Equality, Development, and Peace, Beijing Declaration and Platform for Action, UN GAOR, UN Doc A/CONF.177/20 (1995), reprinted in Report Of The Fourth World Conference On Women (1995) (recommended to the UN General Assembly by the Committee on the Status of Women on 7 October 1995) [hereinafter Beijing Declaration].
[6] Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 December 1979, G.A. Res. 34/180, UN GAOR 34th Sess., Supp. No. 46, UN Doc A/34/36 (1980) (entered into force 3 September 1981), reprinted in 19 I.L.M. 33 (1980).
[7] ibid art 1. For a recent analysis, however, of the extent to which women’s human rights remain unrealized, see Stephen C Poe et al, ‘Global Patterns in the Achievement of Women’s Human Rights to Equality’ (1997) 19 Human Rights Quarterly.
[8] UN CHARTER, 59 Stat. 1031, T.S. 993, art 55(c).
[9] International Covenant on Civil and Political Rights, adopted 16 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976), G.A. Res. 2200 (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc A/6316 (1966).
[10] Poe (n 7) 824.
[11] Catherine MacKinnon, Are Women Human and Other International Dialogues (Harvard University Press 2006). MacKinnon notes that the language of the law is constructed in a way that ‘a man’ defines what ‘an individual’ is and so when it is stated that someone’s human rights are recognised to be violated, he is probably a man. Only men are permitted to be violated as individuals. Her analysis explains how a woman is ‘not yet a name for a way of being human’, therefore, their history of violations and atrocities remains unrecorded.
[12] Prosecutor v. Jean-Paul Akayesu [1998] Case No. ICTR-96-4-T, ICTR, Trial Chamber; Prosecutor v. Dragoljub Kunarac, Radomor Kovac, and Zoran Vukovic, [2002] Case Nos. IT-96-23 & IT-96-23/1-A, ICTY, Appeals Chamber.
[13] Akayesu (n 12) [688].
[14] ibid [731-734].
[15] Prosecutor v. Dusko Tadić [1997] Case No. IT-94-1), ICTY, Trial Chamber II.
[16] ibid [646].
[17] LP Freedman et al, Millennium Development Project Task Force 4 Background Paper on Child Health and Maternal Health (2003).
[18] RP Petchesky, ‘From Population Control to Reproductive Rights: Feminist Fault Lines’ (1995) 6 Reproductive Health Matters 152-161.
[19] T Keenan, ‘Publicity and Indifference: Media, Surveillance, Humanitarian Intervention’ [2001] Human Rights Project.
[20] ibid.
[21] S. Correa and R. Petchesky, ‘Reproductive and Sexual Rights: A Feminist Perspective’ in G Sen, A Germaine, and L C. Chen (eds), Population Policies Reconsidered: Heath, Empowerment and Rights (Harvard University Press 1994).
[22] LP Freedman, ‘Censorship and Manipulation of Family Planning Information: An Issue of Human Rights and Women’s Health’ in S Coliver (ed), Article 19, The Right to Know: Human Rights and Access to Reproductive Health Information (University of Pennsylvania Press 1995).
[23] ibid.
[24] Petchesky (n 18).
[25] DEVAW (n 3).
[26] Hilary Charlesworth and Christine Chinkin, ‘Violence Against Women: A Global Issue’ in Julie Stubbs (ed), Women, Male Violence and the Law (Institute of Criminology, Sydney 1994) 24.
[27] DEVAW (n 3) art. 3.
[28] ibid.
[29] ibid art. 4.
[30] Rhonda Copelon, ‘Intimate Terror: Understanding Domestic Violence as Torture’ in Rebecca J Cook, Human Rights of Women (University of Pennsylvania Press) 116.
[31] DEVAW (n 3) art. 4 (c).
[32] Charlesworth and Chinkin (n 26) 259.
[33] Donna J Sullivan, ‘Women’s Human Rights and the 1993 World Conference on Human Rights’ (1994) 88 AM. J. INT’L L. 152.
[34] General recommendation No. 19 (1992).
[35] General recommendation No. 31.
[36] Alice M Miller, ‘Sexuality, Violence against Women, and Human Rights: Women Make Demands and Ladies Get Protection’ (2014) 7(2) Health and Human Rights 16-47.
[37] Amnesty International, Women in the Front Line (Amnesty International 1991). See also Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath (Human Rights Watch 1996).
[38] Vienna Declaration, part II, para 37.
[39] Velasquez Rodriguez, Case 7920, Ser. C, No. 4, Inter-Am. Ct. H.R. 35, O.A.S. Doc OEA/Ser.L/V/111.19, doc. 13 (1988).
[40] ibid.
[41] ibid.
[42] ibid 172.
[43] ibid 173.
[44] ICCPR (n 9) art 2.
[45] Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, Art. 2, 6, 14.
[46] Sarah C Zearfoss, ‘The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable or Reactionary’ (1991) 12 MICH. J. INT’L L. 903, 916.
[47] Paul Mahoney and Fredrik Sundberg, ‘The European Convention on Human Rights: A Case Study of the International Law Response to Violence’ in Kathleen E Mahoney and Paul Mahoney (eds), Human Rights in the 21st Century: A Global Challenge (Brill Publishing 1992) 361.
[48] Airey v. Ireland [1979] 32 Eur. Ct. H.R. (ser. A).
[49] ibid.
[50] ibid [32].
[51] Case of X & Y v. The Netherlands [1985] 91 Eur. Ct. H.R.
[52] ibid [23].
[53] ibid.
[54] ibid.
[55] Gayle Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Polities of Sexuality’ in CS Vance (ed), Pleasure and Danger: Exploring Female Sexuality (Routledge 1984) 267-319.
[56] ‘Preliminary Report Submitted by the Special Rapporteur on Violence Against Women, its Causes and Consequences’ Submitted in Accordance with Commission on Human Rights Resolution 1994/45, UN ESCOR, Comm’n on Hum. Rts., 50th Sess., Agenda Item 11 (a), UN Doc E/CN.4/1995/42 (1995).
[57] UN Centre For Social Development and Humanitarian Affairs, Violence Against Women in the Family, UN Doc ST/CSDHA/2, UN Sales No. E.89.1V.5 (1989) 51, 56.
[58] ibid 71.