Women's rights: taking stock. (Human rights: unfinished business).
The war trials in Bosnia-Herzegovina, the first ad hoc tribunal since World War II, paved the way for an end to the silence and impunity surrounding the use of sexual violence as a weapon of war. The United Nations took a stand against those responsible for the mass rape of Muslim women as a part of the armed conflict in the region and continues to record the testimonies of some of the thousands of women subjugated to sexual slavery by Japanese military authorities in Japan, Korea, Indonesia and the Philippines before and during World War II.
When Special Rapporteur Radhika Coomaraswamy began her mission, the Japanese government was reluctant to accept its responsibility in these matters and focused on conceptual issues in an attempt to minimize the gravity of the crimes. They pointed out that the idea of "comfort women" was not tantamount to sexual slavery and that although they regretted what had happened, they admitted only moral and not legal obligations towards the survivors. (1)
In the case of the former Yugoslavia, the rules that traditionally have governed criminal procedure had to be modified in order to recognize the seriousness of rape and sexual violence against women as war crimes during armed conflicts. (2) The rape of women is not a more-or-less expected, insignificant or inevitable consequence of armed conflict but rather, in certain contexts, a policy aimed at the extermination of women and the peoples to which they belong. (3)
The International Tribunal of Bosnia established procedural rules to prevent the secondary victimization of women which is common in the domestic treatment of cases of rape. (4) Corroboration of the rape and the sexual behavior of assaulted women would no longer be admissible evidence in rape trials. Such a step is particularly significant in light of the fact that, in the case of Yugoslavia, the rapes were committed by neighbors or acquaintances of the women. (5) While this may appear to be a minor issue, it was a milestone that raised the threshold of expectation for national laws and offered an important opportunity for participating in legal reform currently underway in Latin America.
The Rome Statute that created the International Criminal Court included as crimes against humanity: rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization, or any other form of serious sexual violence. (6) Unfortunately, this provision is relevant because sexual violence is still a weapon of war and a means for the oppression of women and the group to which they belong. The inclusion of crimes of sexual violence sparked a lengthy political discussion before being incorporated into legal documents.
The legal and political realms of international women's rights have both influenced each other more than criminal law. Developments in the protection of human rights through criminal law is a recent phenomenon compared to the wider framework of women's human rights protection. Although the political recommendations, such as those found in Platforms for Action, do not have the force of law, they do provide a starting point for working towards the goal of agreements on the commitments and priorities not only between the governments, but with civil society as well. However, these processes have not been without conflict, and the dialogue with civil society has incorporated other movements and NGOs whose interests are far from consistent with those of the women's movement.
Since the 1960s, the Teheran Conference on Human Rights in 1968 and the Third Women's World Conference in Nairobi in 1985 marked milestones in the creation of a new order for the protection and recognition of women's rights. The importance of the former is rooted in the adoption of a mandate promoting a specific instrument on women's human rights, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), finally adopted by the United Nations and open to ratification in 1979. It is reasonable to assume that without Teheran either we would not have had the CEDAW or its adoption would have been delayed even longer.
International political discussion is important because it translates, in specific contexts, into legal texts, which tend to be broadly drafted, without a predetermined meaning and scope. From this point of view, the agreements play a hermeneutic role in which interpretation has important implications for the advancement of rights, known in legal doctrine as the pro homine principle of interpretation. This is a tool that allows for the broadest interpretation of a norm recognizing protected rights, but demands the most restrictive interpretation when establishing permanent or temporary restrictions on the exercise of these rights. In this regard, the implementation of the Platforms for Action can be evaluated in light of the principles of human rights. (7) In this sense, only since the Beijing Conference have development issues been tied to women's rights or those that include women's rights a central area of concern.
The Fourth World Conference on Women at Beijing enabled these two processes to converge, reaffirming the gains of Vienna in relation to women's rights where rape was conceived as a violation of women's human rights. The Beijing Platform for Action makes a direct reference to the CEDAW, calling for the strengthening of this treaty. Paragraph 230(k) of the Platform for Action calls for the adoption of an Optional Protocol to the CEDAW that would allow individual complaints to be received and processed.
The weakness of the international human rights instruments is due to the fact that they depend, to a large extent, on the willingness of each State to ensure their observance: a "toothless" instrument permits a degree of impunity. In order to take concrete measures against States that violate human rights, political will and a climate critical of such abuses must already exist. Without these factors, the possibilities of enforcement/fulfillment are much weaker.
The significant support for the CEDAW, second in importance only to the International Convention on the Rights of the Child, can be misleading. While it appears to be a widely-recognized international instrument, acceptance of the CEDAW has not meant the recognition of the existence of gender discrimination by a significant number of governments. The CEDAW Committee and NGOs that advocate women's rights agree that the Convention lacks instruments to effectively encourage the protection of women's rights as guaranteed by other international instruments.
As international agencies for the protection and observance of human rights seek to strengthen the fulfillment of these obligations, they expose the weakness of the existing mechanisms. By March 15, 2002, 46 countries still had not sent their initial reports to the CEDAW committee, and a number of others had not yet sent subsequent reports, as stipulated in Article 18 which requires that the States periodically inform the committee about the advancement and execution of the Convention. (8) As a result, the CEDAW Committee has considered adopting new measures to ensure that States fulfill their obligations to report, proposing coordination with other United Nations agencies that monitor the fulfillment of other international human rights conventions.
Above all, the massive use of reservations has diminished CEDAW's power. (9) A manifestation of the sovereignty of each State, the use of reservations is allowed under international human rights law and is foreseen in the Vienna Convention on Treaty Law, as long as the reservation does not threaten the objective and purpose of the agreement. This principle is contained in CEDAW's Article 28, and while the CEDAW has been ratified by the majority of countries, a significant number of States have applied reservations to key sections of the Convention. At the same time, there is no procedure for showing that the use of reservations threatens the spirit of the CEDAW. (10) The CEDAW Committee has only been able to insist that the States withdraw their reservations, in particular those that take issue with the definition of discrimination for cultural or religious reasons contained in Article 2. The rejection of this fundamental article of the Convention would effectively bind the hands of the CEDAW Committee.
Herein lies the importance of the adoption of the Optional Protocol. In any case, the environment in which the Protocol is being developed reveals a great deal regarding how far we still have to go. As a past member of the Committee, Judge Silvia Cartwright, described, the Committee could not reach a consensus regarding the adoption of the Protocol that would have allowed for control and accountability at the international level. (11) In general, the political opposition to the adoption of an additional protocol came from very different continents: Asia, North Africa, North America and even some European countries. (12) Notorious among this group is the United States. The U.S. has not ratified the CEDAW but has made numerous observations on the process to adopt the Optional Protocol, as well as the instrument that gave rise to the creation of the International Criminal Court.
Many of the States that still have not ratified the CEDAW have expressed concerns with two fundamental aspects of the draft Protocol: first, the possibility that third parties could lodge complaints in the name of others; and second, the possibility of invoking reservations on the Protocol. The first of these points was intended to remedy women's historic situation of subordination, their lack of access to channels of redress and the infinite possibilities that women's denunciations could be used against them. As a result, the experts and organizations advocated intensely for a Protocol that would allow for individual complaints as well as those lodged by groups in the name of women victims of rights violations. If individual denunciation alone had been allowed, in many parts of the world women's situations of helplessness would have continued.
On the other hand, allowing reservations to be applied to certain aspects of the Protocol could counteract the intent of this mechanism, just as with the Convention. Reservations as an institution could be reduced or eliminated; they would be unnecessary, as any plaintiff must exhaust all the domestic avenues before lodging a denunciation under the Protocol. According to Judge Cartwright, if a State opted out of the research procedure established in Article 8, then there was no sense in incorporating the reservation. As she explains, the less likely that a State was to adopt the CEDAW, the more likely it was to press for a reservation. These hypocritical positions reveal that the States were unwilling to assume these obligations, but if they had to assume them--aware of the political benefits of joining a global consensus at these forums--they wanted to restrict their obligations as much as possible.
Even since the adoption of the Optional Protocol by the Commission on the Status of Women in 1999, challenges and contradictions continue to exist. In the era of globalization, and since the inevitable adoption of the Protocol, the Vatican's position has been felt strongly throughout the world. Local hierarchies of the Catholic Church imbue their discourse with the same logic of their preparation for the conferences in Cairo and Beijing, calling for a rediscussion of the concepts of gender and the role of the woman in the family, off-handedly belittling the CEDAW's Committee of Experts. In Chile, at least, the local elites have been urged to maintain the status quo, and new debate criticizes the "ideological colonialism" that supposedly bends national sovereignty to the will of international organisms insensitive to different cultures. Although easily foreseen, the pressure against the governments that have actively promoted the Protocol is quite worrying. In Chile, in an effort to pour oil on politically troubled waters, the Minister of the National Women's Service, Adriana Delpiano, took a similar stance, questioning the recommendations that the committee had made to Chile regarding the absence of therapeutic abortion and other issues tied to sexual and reproductive health. Delpiano pointed out that the CEDAW Committee effectively had overstepped its bounds and that CEDAW makes no reference to these issues. (13)
On the occasion of the ratification of the Protocol, we must reaffirm that maternity is not women's inevitable destiny and that the right to life lacks meaning if it deprives us of the possibility of protecting our own lives and of preventing sexually transmitted diseases. We must be able to exercise the basic rights of access to information and education, as well as adequate sexual and reproductive health services.
Nationalist rhetoric of traditions and local idiosyncrasy has silenced the serious violations of women's rights in our continent. The daily use of rape as a weapon of war against women and children, especially among indigenous peoples, such as in Guatemala, (14) and the forced sterilization of thousands of indigenous women as part of Fujimori's population control policies went unchallenged; not even the most conservative sectors spoke up to denounce these actions. The Protocol will constitute an effective tool to denounce and eradicate the norms and practices that have kept us in a position of subordination. In a process of democratic consolidation such as that currently underway with some degree of success throughout the region, it is unthinkable that women will have to continue waiting.
Under current conditions, it is foreseeable that the States, under the sway of outspoken minorities with considerable power, may block the ratification of the Protocol, insisting on the use of reservations. This will be one more trial by fire for the international community and the women's movement, which will have to continue their embattled efforts and insist that the hard-won gains of these processes become a reality.
(1.) Coomaraswamy, Radhika (1996). Report on the mission to the Democratic People's Republic of Korea, the Republic of Korea and Japan on the issue of military sexual slavery in wartime. E/CN.4/1996/53/Add. 1.
(2.) Ni Aolain, Fionnula (1997). "Radical Rules: The Effects of Evidential and Procedural Rules on the Regulation of Sexual Violence in War," in Albany Law Review vol. 60, p. 884.
(3.) Odio, Elizabeth (1997). "Proteccion Intemacional de los Derechos Humanos de las Mujeres," quoted in Guatemala: Memoria del Silencio, Comision de Esclarecimiento Historico, on-line at http://www.shr.aaas.org
(4.) Ibid., p. 900. In this sense, the rules of evidence on the issue of sexual violence set a precedent. Rule of Evidence 96 establishes that in cases of sexual aggression, corroboration is unnecessary; consent by the victim will not be admitted if the victim had been the object of threats or had well-founded fears of violence, coercion, detention or psychological pressure; nor will the victim's sexual behavior be admissible evidence.
(5.) Ni Aolain, op. cit.
(6.) Article 7, paragraph g.
(7.) Timothy, Kristen and Marsha Freeman (2000). "Convention and the Beijing Platform for Action: Reinforcing the Promise of the Rights," in IWRAW: Producing NGO Shadow Reports. International Women's Rights Action Watch, Hubert H. Humphery Institute of Public Affairs, University of Minnesota, February 2000. On-line at http://iwraw.igc.org/ beijing5/freeman-timothy-paper. htm
(8.) United Nations CEDAW/EGM/ LUND/WM/2002/Report.
(9.) Reservations are the only mechanisms that frees a State Party to an international instrument from the obligations of certain of the agreement's contents. Reservations are expressed in a unilateral statement which limits or excludes the legal effects of the stipulated section(s) of the agreement. The International Court of Justice has reaffirmed the principle contained in the Vienna Convention on Treaty Law that stipulates that reserves are admissible only if they do not violate the objective and the purpose of the treaty. Fernandez, Marisol, Mery Vargas and Teresa Hernandez (1999). Innovando Rutas Legales. DEMUS: Lima, p. 71.
(10.) Cartwright, Silvia (1998). "Rights and Remedies: the Drafting of an Optional Protocol to the Convention on the Elimination of all forms of Discrimination against Women," in Otago Law Review vol. 9, no. 2, p. 240.
(11.) According to her testimony, Ms. Sato of Japan and Ms. Hartono of Indonesia resisted the idea of the Protocol. In the end, Ms. Hartono continued to dissent. See Silvia Cartwright, op. cit.
(12.) Ibid., p. 240.
(13.) Intervention of the Minister in the 111th Session of the Chamber of Deputies, April 3, 2001.
(14.) On-line at http://hrdata.aaas. org/ceh/mds/castellano/cap2/ vol3/mujer.html
RELATED ARTICLE: Strengthening advocacy in women's human rights and international justice.
The Women's Caucus for Gender Justice is a network of individuals and groups committed to strengthening advocacy on women's human rights and developing women's capacity to use the International Criminal Court and other mechanisms that provide women access to justice.
* To incorporate gender perspectives into the ongoing process of establishing the International Criminal Court and other mechanisms through the worldwide involvement of women in the process.
* To help enable these institutions and instruments to protect and promote gender justice effectively.
* Work towards the establishment of the International Criminal Court (ICC) and ensure its responsiveness to the principles of gender justice.
* Participate in the ICC Ratification Campaign.
* Monitor and assist the Court to fairly and effectively prosecute cases of gender violence.
* Promote awareness of the International Criminal Court.
The Women's Caucus grew out of the work of a last-minute organizing effort of a small group of women human rights activists at the February 1997 Preparatory Committee for the Establishment of an International Criminal Court at the UN. These women realized that without an organized caucus, women's concerns would not be appropriately defended and promoted.
Building on the work of previous caucuses formed around the Vienna, Cairo and Beijing Conferences and considering the success of this ad hoc caucus in integrating a gender perspective, in brackets, into the definition of crimes against humanity and war crimes, these women decided to form a permanent caucus which would be part of the ICC but autonomous in its function.
The Caucus tried to encourage women from every region of the globe to become involved. As the Caucus grew and became more structured, three main goals were identified by the more than 300 organizations from all over the world which supported its work. These were:
1) To ensure the worldwide participation of women's human rights advocates in the negotiations prior to the ICC treaty and to lobby for an effective and independent court;
2) To take advantage of this opportunity to educate government delegations and mainstream Human Rights NGOs on their commitments to women and the need to integrate a gender perspective into the UN;
3) To use this historic event as a means for popular education on women's human rights and to raise public awareness of the horrific nature of crimes committed against women.
Along with our focus on women's concerns, the Caucus consistently made our views known on issues whose gender aspects are generally not recognized, such as jurisdiction, independence of the prosecutor, complementarity, cooperation, financing, etc. Nevertheless, due to our limited human and financial resources and lack of allies, we had to place priority on those issues most directly of concern to women in our position papers, our lobbying efforts and in our core principles.
As a result, a broad range of crimes of sexual and gender violence are encompassed in the jurisdiction of the International Criminal Court. The Rome Statute contains broads mandates on the participation and protection of victims and witnesses and the need to include women and experts on sexual and gender violence on the court.
From the website of the Women's Caucus for Gender Justice, http:/ /www.iccwomen.org/
The author is a lawyer and researcher for the Research Center at the Law School of the Universidad Diego Portales in Chile. She is also a member of the Corporacion de Salud y Politicas Publicas (CORSAPS, Health and Public Policy Institute).