Why is the Destruction of Women, as Women, a Reality, But Absent in International law?

Kali Goldstone, Global Education MagazineKali Goldstone

Human Rights/Refugee Lawyer

e-mail: omkali78@gmail.com

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Abstract: Gender persecution is “aggression against and exploitation of women, because [they] are women, systemically and systematically.” Even though women can be abused similarly to the ways in which men are abused, women are also violated in specific ways in which men are not. Women are routinely violated every day, in every country, in times of war and peace. Even though atrocities like rape and sexual murder are officially illegal, these practices are commonly permitted under domestic and international law. So this begs the question, how come the international legal order is not predicated on the need to address such crimes even though many are expressly prohibited in international law and all of them within armed conflicts? Why is the presence of this pattern of destruction of women, as women, a reality, but absent in international law? In 1948 the Universal Declaration of Human Rights defined what being human is and the rights associated with being a human. It has been 65 years since its inception. As Catherine MacKinnon disturbingly inquires: “Are women human yet?” Perhaps some of the answers lie in the fact that violations of men are better understood within the dynamic of human rights violations, as such ideas were based upon the experience of men. “Gender is an inequality of power, a social status based on who is permitted to do what to whom.” Throughout the world women have had, and still have, so little voice and influence in public debate and within their governments. Further, human rights are understood within an individualist dynamic. Men have defined what an ‘individual’ means and as such the rules that manage the law’s treatment of women. Men possess and take liberties as a result of their social authority as men. History dictates the subordination of women to men and thus women’s enforced inequality is a reality of which is mirrored in law. Most human rights instruments only empower states to act against states as opposed to empowering individuals or groups to act in their own interests. Therefore, only states can be identified as violating human rights. The hypocrisy is that states are also the entity entrusted to redress such human rights violations. The power to enforce the law resides with those who perpetrate such acts, preventing the protection of women and the pursuit of accountability in conflict and peace.

Keywords: Gender, Human Rights, Women, International Law, Equality, Feminism, Refugees.

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Gender persecution is “aggression against and exploitation of women, because [they] are women, systemically and systematically.”1 Even though women can be abused similarly to the ways in which men are abused, women are also violated in specific ways in which men are not. Notably, if men are violated in such ways, they become the exception to the rule.

Many of these “sex-specific violations are sexual and reproductive”2 including rape, sexual murder, battery, ‘honor killings,’ suttee, dowry burnings, Female Genital Mutilation (FGM), prostitution, forced abortion, sterilization and motherhood and sexual violence of any kind. A 1989 UN report declares that the “risk of violence and violation within the household is one thing women, irrespective of their social position, creed, color or culture, share in common.”3

So this begs the question, how come the international legal order is not predicated on the need to address such crimes even though many are expressly prohibited in international law and all of them within armed conflicts? Why is the presence of this pattern of destruction of women, as women, a reality, but absent in international law?

Perhaps some of the answers lie in the fact that violations of men are better understood within the dynamic of human rights violations, as such ideas were based upon the experience of men.

Throughout the world women have had, and still have, so little voice and influence in public debate and within their governments. “When someone’s human rights are recognized as violated, he is probably a man.”4

Moreover, women are routinely violated every day, in every country, in times of war and peace. Even though atrocities like rape and sexual murder are officially illegal, these practices are commonly permitted under domestic and international law. They are permissible and understood as an “excess of passion in peace,”5 or the “spoils of victory in war,”6 or as the “liberties . . . of their perpetrators.”7

“Human rights have not been women’s rights – not in theory or in reality, not legally or socially, not domestically or internationally.”8 In reality, domestic law rarely acknowledges that women are violated in these ways. For example, 33 of 50 U.S. states regard spousal rape as a lesser crime with the perpetrator charged with related crimes such as assaultbattery or spousal abuse.9 In some countries, women are even criminalized for the behavior perpetrated against them. For example, in Iran, if a woman is raped, she will often be charged with adultery and the penalty for such a crime can be death by stoning.10

Within the human rights paradigm, what is perpetrated against women is viewed as either “too specific to women to be seen as human or too generic to human beings to be seen as about women.”11 Hence, it is no surprise that international and domestic law fails to protect women and comprehend the continuing and debilitating long term psychological effects of sexual and reproductive atrocities committed against women.

In 1948 the Universal Declaration of Human Rights defined what being human is and the rights associated with being a human.12 It has been 65 years since its inception. As Catherine MacKinnon disturbingly inquires: “Are women human yet?”13

It’s a Man’s World

Men, whose perceptions were translated into ideas that were analogous with the male orientated experience, created international law. In turn, this experience dictated national and international conceptions of the human rights dynamic. Domestically, the state is male, in that it chose to perpetuate the pre-state civil society distribution of power and resources, whereby men dominated women. This dichotomy was accepted as normal, neutral and good and characterized as a state of equality. The fact that they denied rights to women, for example the right to vote, is not in their interest to acknowledge. This was the beginning of the manifestation of gender-blinded law.

As MacKinnon suggests “gender is an inequality of power, a social status based on who is permitted to do what to whom.”14 Humankind maintains a legal way of thinking about equality, which was created by Aristotle: legal equality is to treat similarly situated people alike.15 Therefore“equality” becomes the right to be treated like the white male given that white man’s culture is the dominant culture.16 In this way, when people are not similarly situated we should not treat them equally. Most legal systems take this for granted and there is rarely any other conceptualization of equality.

This socio cultural norm is relevant to the understanding of the legal norm – equality and gender. The law, via legislation, reflects this created difference, which is just a consequence of “systematic dominance of male supremacy.”17 The devastating outcome of the traditional equality rule is that equality means that only people that are similar should be treated similarly. Women are defined as different; women should thus not be treated similarly.

This is overwhelmingly evident in the sexual objectification and sexual murder and rape of women, which, as a result of existing within the traditional equality paradigm, are not always seen as violations. This is because “the distinction made by the practice fits the empirical definition of the group.”18 In other words, identifying women as rapable means that raping them does not violate them, it “merely treats them as women: unlike unalike.”19

Human rights are understood within an individualist dynamic. Men have defined what an ‘individual’ means and as such the rules that manage the law’s treatment of women. “Male reality has become human rights principle, or at least the principle governing human rights practice.”20 Men possess and take liberties as a result of their social authority as men. In this way, men have resorted to using state force to ensure the subjugation of other men.

This is evident in the slavery and segregation laws of the United States and the legalized persecution that was perpetrated under Hitler’s regime. Consequently, the human rights model is predicted upon state action. Thus, when men employ these liberties socially to deny women their rights, a human rights violation is not seen to be committed.21 History dictates the subordination of women to men and thus women’s “enforced inequality”22 is a reality of which is mirrored in domestic and international law preventing the protection of women in conflict and peace and the pursuit of accountability.

In this way, atrocities committed against women are considered “too female to fit the concept of human or too human to fit the idea of female.”23 It must be understood that this is not because women’s human rights have not been violated; it is because the violations of women have been obscured. This shroud occurs in two distinct ways. Firstly, when women are violated like men, the abuse is not characterized as violations of women’s human rights.24 For example, when women, with men, are murdered and buried in mass graves, beaten and tortured, these women are defined in history as Rwandan or Jewish.

Secondly, in peacetime, contained by daily hostilities, women are raped and assaulted by partners, family and friends. However, these atrocities are not distinguished as human rights violations, their victims become the “desaparecidos of everyday life,”25 and what is done to them “smells of sex.”26 Thus when a husband abuses his wife in her home, humanity is not seen to be violated. “Human” and “female” thus become mutually exclusive. One cannot be perceived as a woman and a human simultaneously.27

The State Vs. Women

The professed universal notions of this paradigm called “human rights” did not explicitly include women and in effect kept most women from access to such rights. Most human rights instruments only empower states to act against states as opposed to empowering individuals or groups to act in their own interests. Therefore, only states can be identified as violating human rights. The hypocrisy is that states are also the entity entrusted to redress such human rights violations.28

Consequently, the private acts of men committed against women remain unacknowledged and the power to enforce the law resides with those who perpetrate such acts. The current structure of international law was largely shaped in response to World War II. Therefore it should have seemed clear to the drafters that states often violate the rights of those within and outside of its jurisdiction, those who are not recognized as states. It is exactly these individuals and groups who have their rights violated and so often do not have States to act for them.

As no state successfully secures women’s human rights within its own jurisdiction, no state is motivated to “break ranks”29 and confirm a human rights norm for women’s status and treatment that no state thus far meets. This can be the only explanation as to why no state, the entity with the power to address such atrocities, has acted on behalf of these women via the human rights instruments accessible only to them.

Sovereignty is the international legal principle that a state will employ to divest itself from the responsibility to act outside its own borders and interfere in the activities of another state. Sovereignty is the tenet upon which women are so often denied their human rights. “States bond with each other internationally to permit men to violate women across state borders, just as men bond with each other for this end within states.”30

Immunity is the principle that seems to govern and impact on this idea of sovereignty. In terms of the family, there is ‘marital immunity’ which incorporates extensive exemptions for rape in marriage.31 Then there exists ‘familiarity immunity’ which administers the “criminal law of acquaintance or intimate relationships.”32 Sovereign immunity is thus just an extension of these paradigms, ensuring that states do not have to be accountable for its violations through the law of nations.

In terms of men’s private acts against women, a legal exception exists in wartime. Atrocities committed by soldiers against civilians are always, in essence, state acts. However, “men do in war what they do in peace.”33 In this way, the lack of acknowledgement and action that defines peacetime continues in war when it comes to the treatment of women, regardless of international humanitarian law.

Yet, as we can see in the Democratic Republic of Congo, where rape and sexual assault is used as a tool of war, rarely are international instruments invoked to prevent or stop the atrocities or hold the perpetrators accountable. It is estimated that nearly two million women have been raped in the DRC with women victimized at a rate of nearly one every minute.34 Women have reported alarming levels of sexual abuse in the capital and in provinces far from Congo’s war-torn east, a sign that the problem extends beyond the nation’s primary conflict zone.

In Syria, the International Rescue Committee (IRC) interviewed women who reported, “attacks involving kidnap, rape, torture and murder.”35 Women and girls are being attacked in public and in their homes, by armed government and rebel forces. In February 2013, the assistant U.N. High Commissioner for Refugees, Erika Feller, cautioned that the conflict in Syria is “increasingly marked by rape and sexual violence employed as a weapon of war to intimidate parties to the conflict destroying identity, dignity and the social fabrics of families and communities.”36Again we see that rape is again being used as a tool of control, intimidation and humiliation in the Syrian conflict. While the outcome may not always be fatal, the effects are tangible: a nation of traumatised people. Not just the women who sustain the abuse but their children, other family members and friends who may have witnessed such gross violations.

What becomes evident is that the more a conflict can be defined as internal, as domestic, as social, the “more feminized the victims become no matter the gender,”37 thus reducing the likelihood that international human rights will be established as being violated, irrespective of the reality of that war.38Again, the “gendered dynamics”39 of international law hides behind this notion of state sovereignty causing the “international human rights of women . . . [to be] more fragile than other rights.”40

The Gendered War in the former Yugoslavia

This is particularly compelling in Bosnia-Herzegovina and Croatia where the war has continually been mischaracterized as a “civil war.”41 Therefore, all sides are guilty as a result of their ethnic and historical hatred and the antagonists are compared to and associated with their victims. However, Serbian aggression against non-Serbs, predominately Croatians and Bosniaks (Muslims) is as indisputable and “overwhelmingly one-sided as male aggression against women in everyday life.”42

Ethnic cleansing became a Serbian policy for the slaughter of non-Serbs, with the objective being to construct a ‘Greater Serbia.’ “It is a euphemism for genocide.”43 In this war, there was no Muslim or Croatian policy of territorial expansion, of murdering Serbs, of raping Serb women. Identifying these strategies to eliminate non-Serbs as a civil war is tantamount to defining the holocaust as a civil war between German Jews and German Arians.44 This is an example of how recent approaches to human rights can work to conceal and confound who is doing what to whom, thus effectively condoning such violations.45

Therefore, when international human rights instruments are invoked they often fail to provide justice for women. This is overwhelmingly evident in the pursuit of post conflict justice for Bosnian and Croatian women in Bosnia-Herzegovina and Croatia.

While I was working for UNHCR in Sarajevo, I would participate in field trips to UNHCR’s reception centers in the region. Most of those still residing were women, victims of gross ill-treatment and brutal and dehumanizing rape They had lost their husbands, sons, brothers and fathers to the Bosnian Serbs relentless pursuit of a “Greater Serbia.” Most of their pre-war homes had been reconstructed by international humanitarian relief, which poured into the region after the siege of Sarajevo ended. However, they refused to return to their villages where they would be forced into daily contact with their perpetrators and witnesses of their and their relatives’ abhorrent attacks. Or, as many of them told me, they would rather take their own lives than be forcibly returned to their communities, as they would be regarded as ‘dirty’ and ‘contaminated.’

Nevertheless, the systematic rape of Bosnian and Croatian women was not determined or understood to be what it actually was: “a strategy in genocide.”46 This was ethnic rape perpetrated under official policy. It was not just a “pattern of male pleasure and male power unleashed,”47 or just the intention to torture, dehumanize and demean the victims.48 It was “rape under orders . . .it [was] rape under control.”49 Women and girls were literally raped to death in Serb managed rape/death camps or raped to the point where they wished they were dead. It was “rape as an instrument of forced exile:”50 Victims were forced out of their homes and as result of such atrocities perpetrated against them – they never want to return.

Interestingly, the rape was also part of strategy to forcibly impregnate these women and girls. In this ethnic rape, the children borne of such humiliation are associated with their Serbian fathers and as such, are “magically clean and purified.”51 It is envisioned that these ‘sons’ would stand up and join the fight for a ‘Greater Serbia.’ “It’s the rape of misogyny liberated by xenophobia and unleashed by official command.”52

Even more disturbing and depraved were the reports of UN troops exploiting the inhabitants they were there to protect. It was reported that in Zagreb, refugee women were forced to trade sex for aid from UN troops53 and that the UN presence had increased the trafficking in women and girls through the establishment of “brothels, brothel-massage parlors, peep shows and the local production of pornographic films.”54 Further, there were reports that a former UNPROFOR commander often received Muslim girls to sexually exploit from a Serbian commander.55 Altogether, this exemplifies males, bonding with males, across official lines.

The question thus becomes, who is watching the men who are supposed to be protecting those most vulnerable, in this case women? The undeniable truth is that “each layer of male protection adds a layer of violence against women.”56 Can the only solution be to mandate intervention by a force of armed women?57

The act of rape violates such fundamental human rights as the right to liberty and security, as well as the right to be protected against torture and inhuman or degrading punishment or treatment. Subsequently, the International Criminal Tribunal for the former Yugoslavia has recognized rape as a war crime,58 thus recognizing that “women are particularly vulnerable to persecution by sexual violence as a weapon of war.”59 However, these women are not defined as a state, they do not control the state and rarely will a state represent them. This was until Bosnia and Herzegovina sued Serbia for genocide in the International Court of Justice.60 Yet, in February 2007 the ICJ ruled that Serbia had not committed genocide.61

The ICJ did find that Serbia had violated the Genocide Convention in that it failed to prevent genocide in Srebrenica and failed to punish the perpetrators and surrender them to the ICTY. Nevertheless, no compensation was granted to Bosnia and Herzegovina. Hence, where is the justice for the multitude of women who were the victims of rape, used as a tool and strategy of this war?

Link Between Gender Based Crimes and Human Rights Law

No international instrument expressly prohibits gender-based crimes. There is no enumerated ground in any international convention that includes ‘based on sex or gender’ as an element. For example in the Refugee Convention an individual can only apply for surrogate protection when they posses a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.62 Moreover, there are only rare references to sex or gender in international humanitarian law or to any crimes that include sex as an element.63

Crimes against humanity, which can often be gendered – for example rape, sexual slavery, enforced prostitution and forced pregnancy – are not a component of treaty law, they are characterized as international customary law. Hence there is no duty to prevent such atrocities and very little impetus for one state to interfere in another’s internal affairs.

However, it must be noted that the Rome Statute of the International Criminal Court (ICC) changed this. In article 7(1)(h) the ICC defined persecution on the basis of gender as a crime against humanity, while in 7(1)(g) “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” are considered crimes against humanity when “committed as part of a widespread or systematic attack directed against any civilian population.” 64 Furthermore, while many international crimes are based on sex, for example, rape in war and trafficking in women, international law has a tendency to “suppress their gendered element.”65 There is no international crime that acknowledges the “destruction of women as women, as a group or as members of the group.”66

Equality is an abstract notion steeped in natural law. For example, the Universal Declaration of Human Rights (UDHR) bestows equality “without distinction of any kind.”67 However, if legal equality is to treat similarly situated people alike, and women are defined as different, then women should not be treated similarly. Hence, distinction is not the problem and the lack of distinction is clearly not the resolution.68

Furthermore, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) classifies such discrimination against women in “largely gender-neutral and referential terms.”69 CEDAW guarantees the enjoyment of rights “on a basis of equality of men and women.”70 However, this has been construed non-substantively and claims by individuals or groups, claims against governments who remain inactive and claims against private parties have been regarded as impermissible.71 Nevertheless, the CEDAW committee has finally recognized violence against women as a type of sex discrimination, thus making states accountable for ‘private acts’ if they fail to prevent, investigate or punish discriminatory acts of violence.72

Moreover, while Art. 3 and 26 of the International Covenant on Civil and Political Rights (ICCPR),73 guarantees sex equality, only the Optional Protocol allows complaints by individuals coupled with state parties.74 Nonetheless, only those states that have expressly signed and accepted this Optional Protocol can enable individuals or groups of that state to report breaches of the Convention. Many states who are signatories to the ICCPR have not signed onto the Optional Protocol. For example, the United States has not signed or ratified the protocol and only after the war did the former Yugoslavian states separately sign on.75 The ICCPR cannot be interpreted retrospectively, thus successfully denying victims of the war in the former Yugoslavia from reporting past atrocities.

Furthermore, the International Court of the Former Yugoslavia (ICTY) has inherited the present construction of humanitarian crimes in its founding statute, which seeks to diminish women’s harm and has yet to expressly distinguish gender based crimes. In Art. 5(g) of the ICTY statute, rape is only established as a crime against humanity, not as a tool of genocide.76 Like other domestic and international forums, the ICTY is hindered by “legally institutionalized sex inequality,”77 is easily manipulated by the historical denial of sexual and reproductive harm to women and is obligated to grant institutional deference to states.

Yet again, sovereignty is used as a tool by the international legal order to ensure that the ICTY does not effectively address sexual and reproductive atrocities committed in the former Yugoslavia and does not provide justice for those who are left without effective recourse for violations of their human rights. Hence, there is only a limited practical and bona fide link between the types of sexual and reproductive atrocities committed against women, as women, and the international human rights law available to such victims to hold the perpetrators accountable or to seek surrogate protection.

Conclusion

Alarmingly, “a woman is not yet the name for a way of being human.”78 This is evident even in the most visionary human rights instruments. While realistically, many men, like most women, don’t possess the rights that the UDHR guarantees, it is difficult to distinguish in the UDHR’s prophecy of humanity, “a woman’s face.”79

Hence, what is desperately needed is “full human status in social reality”80 for women. International human rights law must reflect the distinct ways in which women’s human rights are violated as a “deprivation of humanity.”81 Both the reality to which the UDHR confronts and the principles it establishes, must be changed in order for the UDHR to be fully realized – the true universality of human rights for all. It is glaringly obvious that if a society does not grant you rights, so that a state does not have to even deny them to prevent you from possessing them, then the fact that they are somewhat expressly guaranteed in international law, is useless. The law must liberate itself from this “essentialist circularity.”82

One way of achieving this might be to empower women to confront the state committing such human rights violations against them, through international and domestic forums coupled with the ability to directly challenge men in society who harm them.83 It must be recognized in law that the violation of women sexually and reproductively is a “form of unequal treatment.”84

The links between marriage, battery, sexual harassment, rape, prostitution and sexual humiliation in the home, at work, in pornography, in brothels and in the streets, must be made in order to fully grasp the unequal treatment of women by society and thus the law. Cultural practices like aborting female fetuses, female infanticide and the deprivation of nutrition to girls and women, which guarantees that millions of girls are never even born or mature to become second class citizens, needs to be incorporated into the human rights discourse and instruments.85

Further, rape in genocide must be understood to be what Andrea Dworkin coined as “gynocide;” the destruction of women as women, as a group or as members of the group.86 MacKinnon urges that grounds like ethnicity and sex be joined so that crimes against humanity like suttee, FGM, honor killings and rape perpetrated in rape/death camps can be defined as what they really are: “destructive acts against women “in part” on ethnic grounds combined with sex.”87

Perhaps then, women will be granted legal avenues for prevention, recourse to and accountability for reproductive and sexual crimes committed against them. Perhaps then, when a woman is harmed reproductively or sexually, in war or in peace, humanity will be understood to have been violated.

BIBLIOGRAPHY:

Askin, Kelly D. “Women and International Humanitarian Law” in Women and International Human Rights Law, Volume 1 (Kelly D. Askin and Dorean M. Koenig, eds) Transnational Publishers: NY, 1998.

Bergen, Raquel Kennedy. “Marital Rape” on the site of the Applied Research Forum, National Electronic Network on Violence Against Women, March 1999.

Charlesworth, Hilary. “Alienating Oscar? Feminist Analysis of International Law,” in Reconceiving Reality: Women in International Law (Dorinda G. Dallmeyer, ed., 1993) Studies in Transnational Legal Policy No.25, American Journal of International Law, 1993.

Copithorne, Maurice Danby. “Stoning Women to Death in Iran: A Crime Against HumanityCarried Out By the Mullahs’ Regime ,” Oct 1997, http://www.iran-e-azad.org/stoning/women.html

Dworkin, Andrea. Women Hating, Plume Publishing; 1984.

Fitzpatrick, Joan and Bonoan, Rafael. “Cessation of Refugee Protection,” in Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, Cambridge University Press: 2003.

Haines, Rodger. “Gender-related Persecution,” in Feller, Turk and Nicholson, refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, (2003).

Hathaway, James C. The Law of Refugee Status, Butterworths: Ontario,1991.

Hathaway, James C. The Rights of Refugees Under International Law, Cambridge University Press: Cambridge, 2005.

Hoare, Marko Attila. “The International Court of Justice and the Decriminalization of Genocide,” Bosnia Institute: News & Analysis, 9 March, 2007.

International Rescue Committee, “Syria: a Regional Crisis: Commission on Syrian Refugees,” January 2013, p.6.

Letter from Natalie Nenadic to Catherine Mackinnon from Zagreb, Croatia, Oct. 13, 1992 (on file with the Harvard Women’s Law Journal).

MacKinnon, Catherine A. Are Women Human? And Other International Dialogues, The Belknap Press of Harvard University Press: Cambridge, 2006.

Mackinnon, Catherine A.. Feminism Unmodified: Discourse on Life and Law, Harvard University Press: Massachusetts, 1994.

Mackinnon, Catherine A.. Towards a Feminist Theory of the State, Harvard University Press: Massachusetts,1989.

Madsen, Grahl. The Status of Refugees in International Law, A.W. Sijthoff: Leydon, 1966.

Peterman, Amber; Tia Palermo; Tia and Bredenkamp, Caryn (June 2011). “Estimates and Determinants of Sexual Violence Against Women in the Democratic Republic of Congo,” American Journal of Public Health101 (6). Retrieved 17 Mar. 2013.

Rorty, Richard. “Feminism and Pragmatism,” 30 Michigan Quarterly Review 231, 234 Spring 1991.

Stark, Barbara. “The Other Half of the International Bill of Rights as a Postmodern Feminist Text,” in Reconceiving Reality: Women in International Law at 23-34. (Dorinda G. Dallmeyer, ed., 1993) (Studies in Transnational Legal Policy No.25, American Journal of International Law).

UNHCR and UNHCHR Study, “Daunting Prospects Minority Women: Obstacles to their Return and Integration”, Sarajevo, Bosnia and Herzegovina, April 2000.

United Nations Center for Social Development and Humanitarian Affairs, Violence Against Women in the Family 20 (1989).

UN News Centre“Displacement in Syria giving way for serious gender-based crimes, warns UN official,” 26 February 2013. http://www.un.org/apps/news/story.asp?NewsID=44230#.UYxkQSsd58u

 

International Statutes, Cases, Conventions, Recommendations:

‘Cessation of Status,’ 9 Oct. 1992, Executive Committee Conclusion, doc No.69(XLIII) – 1992.

Committee on the Elimination of Discrimination Against Women, General Recommendation No. 19, Violence Against Women, CEDAW/C/1992?L/1/Add.15, Jan. 29, 1992.

Convention on the Elimination of All Forms of Discrimination Against Women, General Assembly resolution 34/180 of 18 December 1979.

Convention Relating to the Status of Refugees: 28 July 1951, G.A Res 429 (V) of 14 December 1950.

International Court of Justice Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina vs. Serbia and Montenegro) March 23, 1993.

International Covenant on Civil and Political Rights, General Assembly Resolution 2200A (XXI) of 16 December 1966.

Introductory Note’ to the Convention and Protocol, office of the UNHCR, Geneva 1996.

“Investigation Against General McKenzie,” Vecernji List (Nov. 25, 1992).

Statute of the International Criminal tribunal for the Former Yugoslavia, adopted May 25, 1993 by S/RES/827 (1993).

Optional Protocol to the International Covenant on Civil and Political Rights, General Assembly resolution 2200A (XXI) of 16 December 1966.

The Rome Statute of the International Criminal Court. July 17, 1998, U.N Doc A/CONF.183/9.

United Nations High Commission for Refugees Handbook Paragraph 136.

Universal Declaration of Human Rights, General Assembly Resolution 217 A (III) of Dec, 10, 1948.

 

 

 NOTES

1 Catharine A. MacKinnon, Are Women Human? And Other International Dialogues, The Belknap Press of Harvard University Press: Cambridge, 2006, p.29.

2 Ibid, p.181.

3 United Nations Center for Social Development and Humanitarian Affairs, Violence Against Women in the Family 20 (1989).

4 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit, p.146.

5 Ibid, p.182

6 Ibid, p.182.

7 Ibid, p,182.

8.Ibid, p.180.

9Raquel Kennedy Bergen, “Marital Rape” on the site of the Applied Research Forum, National Electronic Network on Violence Against Women. Article dated March 1999. The Report also highlights how in the U.S., marriage precludes a charge of statutory rape even if one of the spouses is under the age of consent in the jurisdiction where the sexual act takes place.

10“ Maurice Danby Copithorne “Stoning Women to Death in Iran: A Crime Against HumanityCarried Out By the Mullahs’ Regime ,” Oct 1997, http://www.iran-e-azad.org/stoning/women.html – The penalty for adultery under Article 83 of the Iranian penal code, called the Law of Hodoud is flogging (100 lashes of the whip) for unmarried male and female offenders. Married offenders may be punished by stoning regardless of their gender, but the method laid down for a man involves his burial up to his waist, and for a woman up to her neck (article 102). The law provides that if a person who is to be stoned manages to escape, he or she will be allowed to go free. Since it is easier for a man to escape, this discrimination literally becomes a matter of life and death.

11 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit, p.181.

12 Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3rd Sess., at 72-76, U.N. Doc A/810 (1948).

13 Catherine, A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit, p.41.

14 Catherine A. Mackinnon, Feminism Unmodified: Discourse on Life and Law, Harvard University Press: Massachusetts, 1994, p.8.

15 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit., p.105.

16 Catherine A. Mackinnon, Feminism Unmodified: Discourse on Life and Law, op.cit., p.63.

17 Ibid, p.42.

18 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit, p.107.

19 Ibid.

20Ibid, p.147.

21 Ibid, p.147.

22 Ibid, p.149.

23 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit., p.181.

24 Ibid, p.180.

25 Ibid, p.,181. Desaparecidos translates literally to people that disappear or vanish.

26 Ibid, p.181.

27 Ibid, p.181.

28 Ibid, p.148.

29 Ibid, p.148.

30 Barbara Stark, “The Other Half of the International Bill of Rights as a Postmodern Feminist Text,” in Reconceiving Reality: Women in International Law at 23-34. (Dorinda G. Dallmeyer, ed., 1993) (Studies in Transnational Legal Policy No.25, American Journal of International Law).

31 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit Ibid, p.194.

32 Ibid.

33 Ibid, p.148.

34Peterman, Amber; Tia Palermo and Caryn Bredenkamp (June 2011). “Estimates and Determinants of Sexual Violence Against Women in the Democratic Republic of Congo,” American Journal of Public Health101 (6). Retrieved 17 Mar. 2013.

35 International Rescue Committee, “Syria: a regional Crisis: Commission on Syrian Refugees,” January 2013, p.6.

36 UN News Centre, Displacement in Syria giving way for serious gender-based crimes, warns UN official,” 26 February, 2013. http://www.un.org/apps/news/story.asp?NewsID=44230#.UYxkQSsd58u

37 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit., p.148.

38 Ibid, p.148.

39 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit p.39.

40 Hilary Charlesworth, “Alienating Oscar? Feminist Analysis of International Law,” in Reconceiving Reality: Women in International Law (Dorinda G. Dallmeyer, ed., 1993) Studies in Transnational Legal Policy No.25, American Journal of International Law, 1993.

41 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit Ibid, p.161.

42 Ibid, p.161.

43 Ibid, p.36-37.

44 Ibid, p.184.

45 Ibid, p.144.

46 Ibid, p.37.

47 Ibid, p.38.

48 Ibid, p.38.

49 Ibid, p.38.

50 Ibid, p.38.

51 Ibid, p.38.

52 Ibid, p.38.

53 Ibid, p.182.

54 Letter from Natalie Nenadic to Catherine Mackinnon from Zagreb, Croatia, Oct. 13, 1992 (on file with the Harvard Women’s Law Journal).

55 “Investigation Against General McKenzie,” Vecernji List (Nov. 25, 1992).

56 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit., p.189.

57 Ibid, p.189.

58 The Statute was adopted on 25 May 1993 and amended on 13 May 1998. Article 5 of the Statute lists rape as one of the crimes against humanity, when committed in armed conflict, whether international or internal in character, and when directed against any civilian population.

59 Rodger Haines, “Gender-related Persecution,” in Feller, Turk and Nicholson, refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, (2003), Chapter 5.1, p.336.

60 International Court of Justice Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina vs. Serbia and Montenegro) March 23, 1993.

61 Judgment of International Court of Justice, General List, no. 91, 26 February 2007: case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro):

In its verdict, the Court found by 13 votes to 2 that Serbia had not committed or conspired to commit genocide. It also concluded by 11 votes to 4 that Serbia was not complicit in genocide. It did however find, by 12 votes to 3, that Serbia had violated the obligation under the Genocide Convention to prevent the genocide that occurred at Srebrenica.

62 Article 1(2) of the 1951 Refugee Convention., op.cit.,

63Kelly D. Askin, “Women and International Humanitarian Law” in Women and International Human Rights Law, Volume 1 (Kelly D. Askin and Dorean M. Koenig, eds) Transnational Publishers: NY, 1998. pp.45-47.

64 The Rome Statute of the International Criminal Court. July 17, 1998, U.N Doc A/CONF.183/9.

65 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit., p.192.

66 Ibid.

67 Universal Declaration of Human Rights, art. 2 General Assembly Resolution 217 A (III) of Dec, 10, 1948.

68 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit., p.153.

69 Ibid.

70 CEDAW pt. I, art. 1, adopted Dec. 18, 1979.

71 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit., p.153.

72 Committee on the Elimination of Discrimination Against Women, General Recommendation No. 19, Violence Against Women, CEDAW/C/1992?L/1/Add.15, Jan. 29, 1992.

73 ICCPR, General Assembly Resolution 2200A (XXI) of 16 December 1966. Art. 3:The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.Art. 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

74 Optional Protocol to the International Covenant on Civil and Political Rights, General Assembly resolution 2200A (XXI) of 16 December 1966.

75; Ibid, Bosnia and Herzegovina signed 1 March 1995; Croatia incorporated the protocol into its domestic legislation on 12 October 1995; Serbia signed 12 March 2001.

76 Statute of the International Criminal tribunal for the Former Yugoslavia, adopted May 25, 1993 by S/RES/827 (1993) art. 5(g).

77 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit., p.194.

78 Richard Rorty, “Feminism and Pragmatism,” 30 Michigan Quarterly Review 231, 234 Spring 1991.

79 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit., p.43.

80 Ibid.

81 Ibid.

82 Ibid, p.152.

83 Ibid, p.33.

84 Ibid.

85 Ibid, p.194.

86 Andrea Dworkin, Women Hating, Plume Publishing; 1984, p.95.

87 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit., p.195.

 

This article was published on June 20th: World Refugee Day in Global Education Magazine.

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