Sex and International Tribunals. Chiseche Salome Mibenge

Чтение книги онлайн.

СКАЧАТЬ in armed conflict. And yet civilian women and their families were not able to seek justice from occupying powers responsible for the violence. Reporting sexual violence to the military police was futile, and the liberators and victors abused women and girls with impunity.

       Human Rights Law Responses to Gender and Violence in Armed Conflict

      As a state fluctuates unpredictably between war and peace, human rights advocacy has played an important role in bringing such forms of abuse to light. Human rights laws play an important role in the response to the harms women suffer. In the decades since the ratification of the Universal Declaration of Human Rights and the Geneva Conventions, the human rights law framework has developed at a faster rate in response to global trends in warfare than the more conservative international humanitarian law. It is fair to say that third tier instruments, in particular, have encroached on the territory of international humanitarian law standards and in many respects have overtaken international humanitarian law in protecting women against violations in “war,” particularly with respect to the periods preceding and following war.

      The committees for CERD and CEDAW have provided important interpretations of the relationship between human rights and conflict, and world conferences have acted as a platform for states, civil society, and NGOs to affirm their shared commitment to human rights and to broaden their understanding of rights and duties. The impact of war on women’s human rights has become a central point of advocacy and activism at these conferences.

      The End of Decade Conference held in Nairobi in 1985 and the Forward Looking Strategies for the Advancement of Women referred to the especially vulnerable situation of women affected by armed conflict, including threats of physical abuse.³¹ However, violence against women was not specifically linked to widespread and systematic violence in armed conflict nor was there a strong affirmation that violence against women was prima facie a human rights issue (UN Division for the Advancement of Women, 1988: 13). The reference to vulnerability implied that the concerns of international humanitarian law over women’s honor remained the dominant area of concern.

      To counteract the invisibility of abuses against women in the mainstream human rights discourse, the Center for Women’s Global Leadership with a consortium of hundreds of women’s organizations worldwide launched a global campaign for women’s human rights to influence the Second World Conference on Human Rights in Vienna (1993) (Dauer 2001: 68). Their campaign goal was to give visibility to forms of violence against women that UN experts in human rights and governments had failed to include as part of human rights, especially those occurring in the community, family, and private sphere, and to demand government accountability for eradicating them (ibid.). To do this, the global campaign organized a series of (nonbinding) tribunals around the world, culminating in the Vienna Tribunal for Women’s Human Rights, in which thirty-three women testified to firsthand experience of violence, including war crimes against women, political persecution, and discrimination (ibid., 66).³²

      An audience of NGOs and country delegates heard the testimonies while a panel of judges presided. The judges concluded that the failure to recognize violence against women and to protect their human rights was pervasive and required urgent attention. They identified three reasons for this general failure: a lack of understanding of the systematic nature of the subordination of women and of the social, political, and economic structures that perpetuate such subordination; a failure to recognize the subordination of women, particularly in the private sphere, as a violation of their human rights; and state neglect in both condemning and providing redress for discrimination and other violations against women (Dauer 2001: 68, citing Bunch and Reilly, 1994: 3). The judges made several recommendations, including the appointment of a Special Rapporteur on Violence Against Women at the UN Human Rights Commission; General Assembly approval of a UN Declaration on the Elimination of Violence Against Women; and the recognition of war crimes against women in an international criminal court (Dauer 2001: 69).

      The General Assembly did go on to approve the UN Declaration on the Elimination of Violence Against Women (1993), and it provided that acts of violence included physical, sexual, and psychological violence occurring in the family, including battering; sexual abuse of female children in the household; dowry-related violence; marital rape; female genital mutilation and other traditional practices harmful to women; nonspousal violence; violence related to exploitation; sexual harassment and intimidation at work, in educational institutions, and elsewhere; trafficking in women; and forced prostitution (art. 2).

      And although the declaration had no binding force, its influence can be detected in subsequent human rights conventions and the work of treaty bodies. The declaration’s preamble referred to an increased vulnerability to violence that women belonging to minority groups, indigenous women, refugee women, migrant women, women living in rural or remote communities, destitute women, women in institutions or in detention, female children, women with disabilities, elderly women, and women in situations of armed conflict experience. However, it did not make the link between sexual violence and war crimes.

      Further, the UN Human Rights Commission approved the appointment of an expert referred to as the Special Rapporteur on Violence against Women, who has produced various studies focusing on sexual violence in armed conflict. The International Criminal Court, established in 2000, includes in its jurisdiction rape and other forms of sexual violence, such as enforced prostitution, forced pregnancy, and sexual slavery, as crimes against humanity and as war crimes when committed in the context of international or internal armed conflict (Dauer 2001: 69).

      The UN World Conference on Human Rights adopted the 1993 Vienna Declaration and Program of Action, and it also confirmed that violations of the human rights of women in situations of armed conflict are violations of the fundamental principles of human rights and humanitarian law and that they require a particularly effective response (Vienna Declaration, art. 30). The Vienna Declaration describes massive violations of human rights, such as genocide, ethnic cleansing, and the systematic rape of women in war situations as “abhorrent” and calls for the punishment of perpetrators (art. 28). It lists discrimination against women among some of the most egregious forms of gross and systematic violations of human rights alongside such crimes as disappearances and arbitrary detentions, crimes that are associated with armed conflict, particularly internal armed conflicts (art. 28 and 30).

      At the Fourth World Conference on Women (Beijing Conference, 1995), the topic of sexual violence against women during armed conflict occupied a prominent position.³³ The Beijing Declaration and Platform for Action (Beijing Declaration) identified women and armed conflict as one of the twelve critical areas of concern that member states, the international community, and civil society should address (Beijing Declaration, para. 131–49). The Beijing Declaration defines violence against women as any act of gender-based violence that results in, or is likely to result in, physical, sexual, or psychological harm or suffering to women, including threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or private life (para. 114). Violence against women in armed conflict is expressly referred to: “Other acts of violence against women include violation of the human rights of women in situations of armed conflict, in particular murder, systematic rape, sexual slavery and forced pregnancy” (para. 115).

      The Beijing Declaration places violence against women in armed conflict within a structural hegemonic framework that subordinates the gender role of women in society (para. 136). It describes rape as a tactic of war and terrorism. The impact of war on women is described in terms of displacement, loss of the home and property, the loss or involuntary disappearances of close relatives, poverty, and family separation and disintegration (ibid.). Women are described not only as rape victims but also as victims of acts of murder, terrorism, torture, involuntary disappearance, slavery, sexual abuse, and forced pregnancy in situations of armed conflict.

      The Beijing Declaration describes violence against women in armed conflict, foreign occupation, and other forms of alien domination not as a limited temporal event but as one having enduring social, economic, and psychologically СКАЧАТЬ