Sex and International Tribunals. Chiseche Salome Mibenge

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СКАЧАТЬ (para. 136). This recognition is integral to understanding testimony from women speaking years after the cessation of hostilities, as in the testimony I referenced above. The Beijing Declaration pays particular attention to the enhanced vulnerability to abuse and exploitation that refugee and internally displaced women experience (para. 137).³⁴ It shines some light on sexual violence against uprooted women and girls employed as a method of persecution in systematic campaigns of terror and intimidation that forces members of a particular ethnic, cultural, or religious group to flee their homes (ibid.). The declaration describes gender as a ground for persecution and transcends the temporal jurisdiction of international humanitarian law by pointing out that women persecuted on grounds of gender, for example, through acts of sexual violence, continue to be vulnerable to violence and exploitation while fleeing, in countries of asylum and resettlement, and during and after repatriation. It further states that women often experience difficulty in some countries of asylum in being recognized as refugees when the claim is based on such persecution (ibid.). An unequivocal recognition such as this is pertinent when recalling the invisibility of enforced prostitution, rape, and exploitative sexual bartering that so dominated the landscape of occupied and liberated Europe after World War II.

      The Beijing Declaration is one of the first rights instruments to refer to the positive roles women play in mediating conflict and mitigating its harmful impact on themselves, their wards, and community. It states that during times of armed conflict and the collapse of communities, the role of women is crucial. They often work to preserve social order in the midst of armed and other conflicts and they make an important but often unrecognized contribution as peace educators both in their families and in their societies (para. 141 and 138). The Beijing Declaration also salutes refugee, displaced, and migrant women for their endurance, resourcefulness, and positive contribution to countries of resettlement or the country of origin on their return. The declaration calls on states to involve these women in shaping policy that affects them (para. 138).³⁵ More broadly, the declaration calls on states to mainstream a gender perspective into all programs responding to armed conflict and to increase the participation of women in conflict resolution at decision-making levels (para. 143).

      Taking into account the violent power struggles that many African countries have undergone since the inception of the Universal Declaration, at the regional level, the Maputo Protocol pays specific attention to the protection of women affected by war, including those seeking asylum, refugees, returnees, and internally displaced persons, against all forms of violence, including rape and other forms of sexual exploitation. The Maputo Protocol uses the term women to include both women and girls; however, at times girls are given special mention by virtue of their status as minors, particularly with respect to their special vulnerability in armed conflict to sexual violence and recruitment for child soldiering (art. 11[3] and 11[4]). The Maputo Protocol, in the manner of third tier instruments, asserts that the perpetrators of such violence (gender-based violence as a war crime, genocide, and/or crimes against humanity) will be brought to justice (art. 11[3]).

      References to violence against women in armed conflict in international human rights documents became more specific in the 1990s, with the media devoting attention to gender-based violence as a form of genocide and ethnic cleansing in Rwanda and the former Yugoslavia, respectively. In 2000 the Human Rights Committee noted the particular vulnerability of women in times of internal or international armed conflicts and called on state parties to inform the committee of all measures taken to protect women from rape, abduction, and other forms of gender-based violence (General Comment 28, art. 3[8]). Interestingly, the CEDAW Committee does not focus on making a “war” and “peace” distinction but leans toward describing hegemonic relationships, for example, those arising in occupied territories, where women may be especially vulnerable to sexual abuse and exploitation. In highly specific gendered language, the CEDAW Committee states that wars, armed conflicts, and the occupation of territories often lead to increased prostitution, trafficking in women, and sexual assaults against women, which require specific protective and punitive measures (General Recommendation 19, art. 16).

      CERD General Comment 25 provides that certain forms of racial discrimination may be directed toward women specifically because of their gender, such as sexual violence committed against women members of particular racial or ethnic groups in detention or during armed conflict (art. 2). General Comment 25 also calls for accountability for abusers and makes an unprecedented demand by a treaty body for the establishment of an international tribunal to prosecute genocide and crimes against humanity, including murder, extermination, enslavement, deportation, imprisonment, torture, rape, and other inhumane acts directed against any civilian population on political, racial, and religious grounds. Not surprisingly, CERD’s comment was made following the Security Council Resolution establishing the International Criminal Tribunal for the former Yugoslavia.³⁶

      The UN Office of the High Commissioner for Human Rights defines “special procedures” as those mechanisms the Commission on Human Rights established to address either specific country situations or thematic issues.³⁷ Although they may be constituted in any manner, special procedures are commonly either an individual, called a special rapporteur or representative or an independent expert, or a group of individuals, called a working group.³⁸

      These experts, whether individually or as a group, examine, monitor, advise, and publicly report on human rights situations in specific countries or territories, known as country mandates, or on major phenomena of human rights violations worldwide, known as thematic mandates. Experts can conduct studies, provide advice on technical cooperation, respond to individual complaints, and engage in general promotional activities. Thematic subjects taken up by experts have included investigations into trafficking in persons, child prostitution and child pornography, the human rights of internally displaced persons, and violence against women. These experts’ reports include much needed interpretations of human rights instruments, and many include gender analyses that take into account the different ways girls, boys, men, and women experience human rights abuses on a day-to-day basis, including in armed conflict.

      The work of the special rapporteurs and other human rights experts has added texture and depth to the international community’s understanding of gender-based violence and its victims. Their elaboration on the shape and impact of gender-based violence is possible through country visits that allow a contextual analysis of harms, and often a critique of the failure to prevent and punish abuses through the implementation of the existing legal framework. The Special Rapporteur on violence against women provides far reaching analyses of violence against women in armed conflict. This body of work provides an unprecedented portrait of sexual violence as a weapon of war. Evidence collected from country visits she conducted under her mandate, particularly to Rwanda and Sierra Leone lays the groundwork to my discussion on justice, gender, and violence in these countries in Chapters 2, 3, and 4.

      Following a country visit to Rwanda after the 1994 genocide, the rapporteur substantiated existing definitions of sexual violence with the testimonies of Rwandan women describing their personal experiences of genocide. Forced nudity appeared as a recurring theme in many of these testimonies. In one case, women were forced to strip naked as they dug graves and buried the corpses of their husbands (Special Rapporteur 1998: para. 78). In another case, a woman was forced to strip naked and walk for thirty kilometers; she told the rapporteur of the humiliation she continued to feel when she encountered people who had witnessed her nudity during the genocide (ibid., para. 34). The rapporteur referred to these experiences as not simply humiliation but as sexual humiliation that has resulted in mental health disturbances. The country visit allowed the rapporteur to write the continuum of harm into the narrative of gender-based violence, emphasizing the individual harm women experience as well as the aggravating nature of women’s perceived sense of rejection and censorious judgment by their communities. Further, because of her physical presence in Rwanda, she was able to discern the violent and sexual nature of forced nudity and its cultural context from the victim’s perspective. СКАЧАТЬ