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Chapter 1

The Women Were Not Raped: Gender and Violence in Butare-Ville

In May 2004, a decade after the genocide, I sat with Aimable, a state prosecutor at the Office of the Prosecutor of Butare-Ville in Rwanda. I asked him for his thoughts on why prosecutors failed to pursue allegations of sexual violence. He answered with a story, describing a curious incident:

A detainee confessed to having raped a number of women. Aimable immediately recognized that this was an incredible confession considering that the death penalty was still in place in Rwanda for those who confessed to sexual violence and other crimes listed as category one offenses. Confessions for lower level crimes were frequent in 2004, but Aimable had not yet encountered a confession to a category one crime. The detainee made a full disclosure, and he listed the names of his accomplices and of the women, living and murdered, he had raped. Aimable duly commenced an investigation into these claims, starting with statements taken from the survivors. However, Aimable was faced with the unexpected predicament that the alleged victims denied that they had been raped by the accused or his accomplices. The women completely refused to cooperate with the Office of the Prosecutor. Consequently, Aimable was forced to withhold the rape charges from the dossier, although he did not doubt their veracity. I asked Aimable why the women reacted as they did, and he responded with a nod in my direction: “You should know why.”

I assumed at the time that “I should know why” because I am a woman, and as my introductory chapter reveals, I received an early education in “rape fear.” Therefore, I could easily place my rape fear into the context of a postconflict, yet still insecure society, where reprisal killings of women alleging rape were widely reported. However, I also assumed that “I should know why” because as a guest of the Office of the Prosecutor I resembled Aimable more than I resembled the raped women: I shared Aimable’s academic and professional training as a lawyer and his experience of the criminal justice process. I understood as well as he did the opportunities and the challenges women genocide survivors would encounter when accessing that process. Some challenges stemmed from convoluted procedural issues and others from the substantive complexity of sexual violence as a crime against humanity and an element of genocide.

I have used Aimable’s anecdote as well as the story of the denial of the women victims in lecture halls in Europe and the United States, and have thus produced a narrative about justice, gender, and violence. While I can quote or at least paraphrase Aimable’s words, I produce a silence when it comes to the women. A gender analysis of the silence of the women victims is, however, also essential because their resistance to speaking within the criminal justice machinery produces a gap that acts as a challenge or counterweight to the promise (made by the likes of Aimable and me) of human rights law and transitional justice interventions to prevent or punish violence and other forms of discrimination against women.

The gap I describe also reveals the underlying political context that engenders violence against women in conflict as well as peaceful societies: Annemiek Richters’s study of rape survivors in the United States showed that their experience made them aware of the “little rapes” that plague women on a daily basis. “Little rapes” were defined as encounters with such phenomena as sexist jokes and pornography, which were only perceived as negative after the experience of rape. Survivors realized that their real life world and their language are full of symbols of objectification and degradation of women, out of which the potential for rape arises. They became acutely aware that they were victims not only of an individual perpetrator but of male hegemony within society at large and of the social and political constructions that enable and even sanction gender-based violence (Richters 1998: 114).

Similarly, Susan Brison, a philosopher and survivor of sexual violence and attempted murder, describes her subsequent awareness of a pervasive culture of violence against women broadcast innocuously by the media in the United States. She explains that events such as the trials of the defendants in the Central Park jogger case, the controversy over the book American Psycho (and subsequently its film version), the Kennedy rape case, and the Tyson trial triggered “debilitating flashbacks” and a “visceral” reaction (Brison 1998: 21).¹ And Brenda V. Smith, a professor of law, describes how she has been able to place an abusive relationship between her parents within the context of a number of other equally violent experiences in her life, such as racial segregation, poverty, and a fear for her safety with people outside of her home (2003).

Richters, Brison, and Smith politicize what might otherwise be regarded as “ordinary violence.” They push the reader to grasp the gravity and pervasiveness of violence, or the threat of violence in “peacetime,” and its objective of maintaining gender inequality. The “little rapes” perpetuate violence against women such that the insecurity that women experience in peacetime is commensurate with that in a conflict. I believe that Aimable’s victims, a decade after the genocide, were aware of the “little rapes” in their society, seen in the essentialization of genocide survivors by local and international media as “brutally gang raped and dying of AIDS”;² the escalation of sexual abuse of the girl child in the home; and the examination and cross-examination of women before the International Criminal Tribunal for Rwanda and domestic courts often perceived by survivor groups as humiliating.

In 1994, Rwanda’s legal system lay devastated by a long civil war, a swift genocide, and a judiciary that had lacked independence for decades. This situation resulted in impunity for state sponsored violence. In spite of this legacy, the transitional government known as the Broad-Based Government of National Unity (1994–2003) dedicated itself to renewing public faith in the judiciary, putting justice at the center of the country’s democratization and peace process. A strong human rights discourse buttressed this call for far-reaching judicial and legislative reform. This governmental commitment mandated that prosecutors investigate sexual violence as an element of the genocidal massacres.

Human rights defenders in all conflict zones refer to the “culture of silence” surrounding sexual violence. Victims and their communities are said to refuse to disclose sexual violence to authorities, such as prosecutors, international investigators, the media, and human rights defenders. In contrast to these common assertions, I was taken aback during my research at the National University of Rwanda’s Center for Conflict Management by the forthright manner in which Rwandans, male and female, discussed sexual violence as it was perpetrated during the 1994 genocide and as it had proliferated in postconflict society. In private as well as public spaces, such as the police station, Office of the Prosecutor, and the university’s department of law that I visited, there was no culture of silence. I attribute this openness to the fact that rape in Rwanda was a public act, committed by light of day in classrooms, open fields, and even outside government offices where female internally displaced persons converged to seek refuge from militias and other genocidaires. At the same time, however, the high public visibility of rapes largely not only precluded discussions of specific cases of the rape of individual women but also made little impact on the prosecution of perpetrators of these rapes. A decade after the genocide, the gap between documented cases of sexual violence and criminal prosecutions of this crime was unacceptably wide.³

Since the 1994 genocide, some notable gains have been made in strengthening the human rights law framework at the domestic, regional, and international levels. However, these gains apparently were not enough for “Aimable’s victims.” They, and many other women, continued to choose to remain outside the parameters of formal legal redress offered by the state. Can silence create a narrative? In my experience, yes. The silent narrative of these women undergirds my review in this chapter of the international human rights law and international humanitarian law frameworks for the protection of women against violence, particularly gender-based violence. It suggests a gap between the imperatives of legal process and those of its intended beneficiaries.

In order to address this gap, I explore two important legal approaches to eradicating gender discrimination: the application of “formal equality” and the “single category axis.”⁴ Formal equality implies that women have equal rights and are treated as equal to men. Throughout the twentieth century, the formal equality approach to redressing the denial of women’s human rights played an important role in combating inequality and discrimination against women. A popular example of its application could be seen in the post–World War II era when many European women were granted the legal right to vote.

A limitation of formal equality is that granting everybody the same rights does not ensure that these rights have an equalizing effect since everybody is not similarly situated. Thus, despite the legal award of formal equality, it may well be that some women still require the implicit or explicit permission of a guardian (such as a father or mother-in-law) before registering to vote. Or women citizens (unlike men) who marry foreign nationals may immediately lose their citizenship and the attendant right to vote. It may also be that as a result of a discriminatory education system, women’s literacy levels are dramatically lower than those of men’s, making them less informed about candidates’ policies and reducing their inclination or ability to independently register as voters. Thus, realizing equality beyond formal equality requires complex and long-term gender-specific measures before the electoral process is a truly participatory one for both men and women.

The application of a single category axis analysis entails that lawmakers center their response to inequality and discrimination on one feature, and in the case of armed conflict, we see the recurring imagery of an essentialized female measured against an essentialized male.

Both formal equality and the single category axis approach result in legal responses that can only effect cosmetic or limited challenges to gender inequality, for example, by creating formal de jure equality between men and women. Further, the positive outcomes of the legal responses privileges a limited and usually elite group of women and not a wider demographic. Women’s identities are multidimensional, which means that a combination of factors intersect with gender to shape and distinguish inequality and discrimination for individual as well as collective groups of women. Multiple identities in the gender group could refer to religion, civil status, age, race, ethnicity, nationality, disability, caste, and sexual orientation. Intersecting identities can aggravate as well as mitigate gender-based discrimination against women depending on the social and political context in which a woman is located. Overturning essentialism and understanding the role of intersecting identities is crucial for the human rights law framework to meet effectively the concerns of women at all levels (universal, collective, and individual).

To clearly illustrate the human rights law framework for the purposes of a gender analysis, I have created a three tiered structure of rights. In the first part of this chapter, I divide international and regional laws into three “tiers” representing a progression of the inclusion and exclusion of women as a gender group and gender-based violence into and from the human rights discourse. My examination of the trilevel framework also reveals the gradual trespass of human rights law into situations of armed conflict and the jurisdiction of international humanitarian law, also known as the laws of war. I begin with the caveat that my selection of the various human rights instruments should not be read as a chronological or linear evolution of human rights legislation. For example, a 1948 declaration should not immediately be viewed as less gender inclusive than a 1978 declaration. Rather, what guides my chronology from the first to the third tier is the inclusion of gender into the ambit of the instrument in question. Further, the instruments I refer to in this study should not be regarded as exhaustive. I have selected representative laws that provide clear illustrations of a shift toward gender awareness in the interpretation and application of norms that ostensibly protect women against discrimination.

In the second part of this chapter, I discuss two key features of the feminist legal critique of international humanitarian law. The first relates to the reductionist presentation of women as vulnerable mothers, and the second to the interpretation of violence against women in wartime as an honor crime against the community. I support the feminist critique in its call for individualizing the multiple harms women experience in war, but I also argue that the critique should not totally ignore women’s identities in the collective, and women’s own valorization of motherhood and their reproductive capacities. An elaborate intersection between individual and collective harm shaped ethnic violence in Rwanda, and in order to describe it, I refer extensively to the feminist critique of legal scholarship on the Holocaust for its failure to unpackage the harm Jewish women suffered as mothers and caregivers of children. I also use the repatriation of Korean women after World War II and Indian women after partition as comparative examples that demonstrate that women’s roles are multidimensional and that a strong individual identity does not have to exclude a woman’s membership in a group or her desire to fulfill the gender roles within her community.

First Tier

The first tier of international human rights law was enacted shortly after and was greatly influenced by World War II. The Universal Declaration of Human Rights (1948) (UDHR) has influenced the development of subsequent human rights treaties, codes, declarations, and proclamations since its adoption. In particular, the International Covenant on Civil and Political Rights (1966) (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (1966) (ICESCR) greatly elaborated on the principles and protections laid down by the UDHR. Together the three documents are referred to as the International Bill of Rights.

The UDHR states that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status (UDHR, art. 1 and 2; ICCPR, art. 2[1] and 3).⁵ While the ICCPR and ICESCR provide greater elaboration of women’s rights than does the UDHR, the focus remained on women’s biological differences from men, particularly their sexual reproductive potential. This focus is apparent in the ICCPR, which prohibits the execution of pregnant women (art. 6[5]). Apart from this reference to the pregnant woman felon (and the desire to protect her fetus), the larger question of gender discrimination and how it might affect women’s enjoyment of the right to a legal remedy or equality before the law is ignored by the International Bill of Rights. For example, women do not have legal standing in many societies despite formal equality in constitutions and national laws, and, without such standing, a woman would require a male custodian to pursue an action on her behalf.

The role that gender plays in criminal actions where a woman is the accused is also inadequately provided for by the gender neutral human rights law provisions. Are jurors more hostile to women felons than men? Are women defendants more likely to be indigent than men? Is a female prostitute more likely to be arrested and prosecuted than her male client? Responding to such questions with an analysis of social constructions of masculinities and femininities brings the principle of formal equality and nondiscrimination before the courts into doubt. Further, it demands that human rights instruments respond to women as belonging to a gender group and whose performance of gender roles has serious consequences on their relationship to justice processes.

The ICESCR provision that women enjoy just and favorable conditions of work and remuneration equal to that of men for equal work is another case in point (art. 7). The protection fails to address pertinent gender issues, such as working hours that do not take into account women employees’ prescribed gender role as the primary caregivers to children, partners, elderly parents, and sick or otherwise dependent family members. Such an omission treats women’s choice to work part time or to leave the workforce altogether as personal decisions that reflect women’s natural lack of ambition or failure to meet the rigors of professional life. Companies are exempt from charges of direct or indirect indiscrimination or from investing in support systems that might ease women’s disproportionate domestic burden.

Apart from the justice system and the workforce, another institution left unchallenged by the International Bill of Rights is the family, referred to as the “natural and fundamental” group unit of society (UDHR, art. 16; ICESCR, art. 10). The rights of women in relation to family life when elaborated upon by these first tier instruments refer typically to marriage and child care, signifying those areas defining women’s sexual and reproductive functions (ICCPR, art. 23). The focus on protecting women’s reproductive and sexual potential assumes that the heterosexual, married couple biologically certifies the family as natural and, if not pro-woman, then at least benign. This normative assumption that women belong in relationships with men—within the marriage union—fails to examine how heteropatriarchy creates a context of risk for women. Such risks to women are seen as aberrations rather than forms of violence in a continuum of various forms of violence that affect women’s lives (Wilkerson 1998: 131).

This idea of promoting formal equality between women and men while subjecting women to the control and even tyranny of the family and other community based institutions is a typical feature of first tier human rights instruments. Within these legal frameworks, women belonged or were relegated to the (private) home “for their own protection” owing to their biological and/or sexual vulnerability and in order to nurture their child-bearing and maternal instincts. The first tier human rights instruments with their formal equality approach fell short of effectively identifying the gendered nature of human rights violation and could not produce effective remedies. This shortcoming led to the depoliticization of private acts of violence and other forms of discrimination and left the structural inequalities intact.

The single-axis approach was also evident in the first tier. The failure of the International Bill of Rights to recognize inequalities among women within the universal category of “woman” poses a challenge to subsequent first tier human rights instruments, such as the Convention on the Elimination of All Forms of Racial Discrimination (1965) (CERD) and the African Charter for Human and People’s Rights (1981) (Banjul Charter).

The Banjul Charter is Africa’s first regional human rights instrument. Enacted forty years after the UDHR, the Banjul Charter’s political backdrop is not the Holocaust but rather the colonization of African peoples by European nations, especially France, Britain, Belgium, and Portugal. With the rapid liberation of many African countries throughout the 1960s and 1970s, it is unsurprising that national sovereignty, control of mineral wealth, development, and reclaiming values and cultures that had been besieged by the colonial experience were central objectives of the Banjul Charter. The charter represents a claim by Africans that their experience of human rights denial, characterized chiefly by their historical subjugation and exploitation on racial grounds by Europeans, was so unique and specific to the African continent as to require not only a universal human rights framework in the shape of the International Bill of Rights but also a regional one.

Banjul’s provisions on equality and nondiscrimination mirror those of the International Bill of Rights (Banjul Charter, art. 2). The trademark feature that makes the Banjul Charter a first tier instrument is the assumption of a universal experience of rights enjoyment and denial for the Pan-African family. While Africans are distinguished from the universal family envisaged by the International Bill of Rights, Banjul does not evince that human rights violations overlap and affect African groups in specific ways according to their gender, race, religion, color, and so on. In Banjul’s narrative, Africans are presented as a monolithic family united against the colonizing West. However, Banjul never envisages the reality of human rights abuse by legitimate African governments. The general prohibition of discrimination against “ethnic groups,” for example, does not lead to any elaboration on how these groups can be more vulnerable to human rights denial and abuse when political allegiance forms along tribal lines. Banjul has no provision against state authorized land grabbing from indigenous groups, for example, or forced relocation arising from development projects agreed on by the state and international donors that deny these groups the exercise of their cultural livelihood.

The Banjul Charter does, however, make an effort to emphasize the rights of women beyond the generic salute to nondiscrimination and equality. States are called on to ensure the elimination of every form of discrimination against women and to ensure the protection of the rights of the woman and the child according to international declarations and conventions. However, this call is made while invoking the family as the natural unit of society and custodian of community morals and traditional values (art. 18[1]). It is a disingenuous protection that places women within a private space governed apparently not by law or state but by the community’s customs and traditions. The family and the community are given free rein over the delineation of women’s freedoms according to their discretion and guided by malleable traditional morals and values. This provision within Banjul gives a nod to traditional practices that violate women’s rights but places such violation beyond the public space that demands state intervention. Whether at the international or regional level, there was a first tier tendency to “protect” women as a reproductive source by placing them within a private space overseen by parents, guardians, and husbands. This tendency affirms Thomas McClendon’s point that while African men and the state had their long-standing conflicts, they agreed that the subordination of African women through control of their mobility from rural to urban areas and reproductive rights maintained patriarchy and other forms of male privilege (2002: 164–79).⁶

The presumed universality of the Pan-African family makes belonging to the African group the single axis on which rights protections are elaborated. Thus, racism apparently has no linkage to sexism and other bias. Within this human rights law narrative there is no room for human rights protections that respond to gender discrimination experienced by men and women in their homes, in prisons, in the military, in the workforce, in accessing health care, in accessing maternal health care, and so on. Banjul creates a human rights law narrative in which African men, women, and children suffer (colonial) persecution as a universal or monolithic experience.

CERD is one of several thematic human rights instruments expanding on a specific area of discrimination referred to broadly by the International Bill of Rights. It is rooted in the fundamental equality principle of the International Bill of Rights, although it focuses exclusively on the prohibition of discrimination on the grounds of race, color, descent, and national or ethnic origin (CERD, art. 1). Like the Banjul Charter, CERD is located in social and political structures, such as apartheid and segregation, that led to wide-scale racial discrimination. However, as race is taken as the single category axis, no effort is taken to investigate the ways in which racial discrimination combines with such intersecting features as caste, class, gender, and religion. In this way, CERD could fail to effectively protect, for example, Dalit Christians in India, Malaysians with Chinese ancestry, or African American women from discrimination in the workforce or school system. There is a uniformity assumed in groups targeted for racial discrimination but no attempt to disaggregate these groups in order to see how multiple identities might exacerbate or mitigate discrimination.

The Banjul Charter and CERD made substantial advances from their precedent in the first tier of human rights, the International Bill of Rights. They provide clearer definitions of discrimination, and while they do not refute the universality of human rights, they deny any uniformity in the ways in which freedoms are enjoyed and denied. In the case of Banjul, rights are placed in the context of African culture, history, and politics. CERD focuses on specific groups who suffer discrimination on the grounds of race and the political regimes that make widespread racism possible. Banjul and CERD begin the task of disaggregating victims of discrimination; however, like the International Bill of Rights, they fail to expose gender-based discrimination as a pervasive human rights violation.

Second Tier

The advent of the Convention on the Elimination of All Forms of Discrimination Against Women (1978) (CEDAW) represents the evolution from first to second tier instruments marked by the prominent location of women’s rights in human rights law. CEDAW, the central second tier instrument, made several bold moves away from the approach of the International Bill of Rights to eradicating gender inequality and discrimination. It provides an important substantive definition of discrimination against women as follows: “Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field” (art. 1).

The indivisibility of economic, social, and cultural rights from civil and political rights is affirmed by this definition, and although the term sex rather than gender is used, CEDAW does not underestimate the socially constructed gender roles and expectations that constrain women in their enjoyment of human rights. CEDAW urges states to end prejudices and harmful stereotypes of women based on the idea of their inferiority in all spheres of life, specifically in the field of education (art. 5 and 10[c]). In a revolutionary step revealing its recognition of the unevenness of the playing field between men and women in the enjoyment of their rights, CEDAW provides for temporary special measures such as affirmative action to facilitate women’s attainment of gender equality with men (art. 4).⁷

Despite its status as the International Women’s Bill of Rights, CEDAW has not escaped criticism for maintaining elements of the formal equality approach to attaining gender equality, particularly with respect to the right to employment and participation in political life and omissions relating to forms of gender-based violence, such as domestic violence. CEDAW calls for women’s equal participation in the workforce and the political realm, areas traditionally dominated by male employers and employees, without addressing hostile hegemonic responses such as sexual harassment. Sexual harassment was not acknowledged as a human rights abuse in CEDAW’s narrative on women and their enjoyment of human rights, despite it being a long-standing barrier for many women to enter, excel, and be retained in the workforce or in political life. And indeed, women who experience harassment from subordinates, peers, and superiors may have no option but to opt out of a hostile work environment. This “free choice” is not far removed from the “voluntary” decision taken by Prosecutor Aimable’s victims to opt out of the justice process in Rwanda. Human rights instruments may grant equal rights to men and women but then leave women ill-equipped to navigate the hostile repercussions from colleagues, family members, governmental authorities, and others that constrain them from fully realizing their rights.

CEDAW provides extensive protection for women as a unitary and universal group. However, it is limited in its efforts to acknowledge that within the universal woman group there are differences that can increase vulnerability to human rights abuse. It restricts this recognition to married women, rural women, prostitutes, and trafficked women (art. 6, 14, and 16). The selection is in its own way a caricature of the different roles that women may play in a society and may even be understood to suggest that a married woman, for example, cannot also be both a prostitute and a rural woman. The complexities of women’s multiple identities are far from encompassed by first and second tier instruments. These groups identified by CEDAW inarguably require special attention; however, their inclusion cannot be justified when migrant women, domestic workers, displaced women, LGBT (lesbian, gay, bisexual, and transgender) women, disabled women, women living with HIV/AIDS, refugee women, and other groups of women are not considered.

With regard to CEDAW’s reference to prostitutes and trafficked women, in particular, the failure to address the intersection of gender discrimination with other bases of discrimination, in particular race discrimination, weakens any protection measures. The international traffic in women is in many cases embedded with beliefs in the racial inferiority of women, whether they are trafficked Slavic women being received in the Netherlands, Filipino women in the United States, Korean women in Japan, Senegalese women in Spain, or Albanian women in Italy. In order for states to respond effectively (and not only with the arrest and/or deportation of prostitutes and trafficked women), international norms that recognize the intersecting and complex issues that lead to violations of the rights of women must guide them.

A founding principle of the women-of-color movement states that the struggle against patriarchy is linked to the struggle against all forms of subordination, and therefore all forms and patterns of oppression and subordination are interlocking and mutually reinforcing.⁸ Similarly, the theories of Third World feminists have insisted on the complex interrelationships between feminist, antiracist, and nationalist struggles (Ferguson 2003, quoted in Anghie 2008: 46). CEDAW’s narrative of discrimination against women and inequality suggests that the subordination of women on the grounds of sex and gender occurs along a single category axis. Kimberlé Crenshaw argues that this axis “erases black women” in the conceptualization, identification, and remediation of race and sex discrimination by limiting inquiry to the experiences of otherwise privileged members of the group (1989: 139–40). Crenshaw points out that this approach, when applied to feminist theory and antiracist politics analysis, creates a paradigm of sex discrimination that tends to be based on the experiences of white middle-class women while the model of race discrimination tends to be based on the experience of black middle-class men (ibid.: 151).

The Human Rights Committee (HRC) and the CERD Committee are committees for the ICCPR and the CERD, respectively. The HRC was established to monitor the implementation of the ICCPR, and the CERD Committee monitors implementation of the CERD. The General Comments passed by the HRC and the CERD Committee are widely accepted as interpretative sources of human rights substantive law, and within my trilevel framework, their comments represent the most (gender) developed spectrum of the second tier of human rights instruments.

However, the foremost comments made by the HRC and the CERD Committee neglected to put gender into the interpretation of their respective conventions. Like the first tier instruments before them, the treaty bodies were criticized for failing to recognize that gender adds a significant dimension when defining the substantive content of individual rights or that it should affect the choice of methods that must be adopted by states to ensure that all individuals within their jurisdiction enjoy those rights equally (Byrnes 1988: 216).⁹ Andrew Byrnes aims this criticism specifically at HRC General Comment 16 (1988) on the right to privacy, which ignores the importance that this right has assumed in the struggle of women for control over their reproductive lives, for example, with respect to abortion or the spacing of children (HRC General Comment 16, art. 17).¹⁰ Instead, traditional (androcentric) concepts, such as the inviolability of the home from state interference and restrictions on the use of sensitive personal information by governments and others, were the major preoccupation of the HRC (Byrnes 1988: 217). The narrative arising from the HRC General Comment on the issue of privacy privileges the concerns of men.

However, with the passage of time committee members have come to place gender at the core of their comments. Through these General Comments, first and second tier human rights instruments have been elaborated upon in order that women’s multiple identities are identified and considered. General Comments have become an important means of normative development in a regime that is frustratingly limited in this respect (Otto 2002: 10). The HRC, earlier criticized for failing to take gender into account, produced the far reaching General Comment 28 (2000) addressing article 3 of the ICCPR on equality between men and women. Gender is squarely addressed as grounds for discrimination, and its impact on vulnerability to discrimination as well as the shape of discrimination is discussed within this comment. States are instructed by General Comment 28 that combating inequality in both public and private spaces is the responsibility of the state and cannot be limited to formal equality but requires multiple responses, including the removal of obstacles to the equal enjoyment of such rights, the education of the population and of state officials in human rights, the adjustment of domestic legislation, and affirmative action for the advancement of women (art. 3 and 4).

General Comment 28 goes on to prohibit states from justifying unequal treatment and opportunity for women on the grounds of tradition, history, and culture or religious attitude. Dowry killings, clandestine abortions, prenatal sex selection, and the abortion of female fetuses are condemned as a manifestation of discriminatory attitudes that subordinate women (art. 5 and 10). General Comment 28 describes how poverty and deprivation, armed conflict, and states of emergency can compromise women’s rights and increase their vulnerability to discrimination, often in the shape of violence, such as sexual violence and abduction (art. 10).

As I stated earlier, CERD had ignored gender related aspects of racial discrimination. The CERD Committee replicated this omission in all nineteen of its General Comments passed before 1996. At one stage, the CERD Committee chairperson made the astounding declaration that he rejected directives to integrate gender issues into the CERD’s work as “fundamentally misconceived” and considered that it was the CEDAW Committee’s job to deal with women (Gallagher 1997: 304, quoted in Otto 2002: 27).¹¹ This statement was even more astounding considering that in 1995 the chairpersons of the treaty committees had endorsed a shared commitment to “fully integrate gender perspectives into their working methods, including identification of issues and preparation of questions for country reviews, general comments, general recommendations, and concluding observations.”¹²

It is notable, therefore, that in the past decade the CERD Committee has surpassed the HRC in its efforts to incorporate gender into its treaty. Indeed, the CERD Committee has introduced a gender analysis of human rights into various comments and not only a thematic comment on gender. In General Comment 25 (2000), the CERD Committee notes that there are circumstances in which racial discrimination only or primarily affects women, or affects women in a different way or to a different degree than it affects men. Such racial discrimination will often escape detection if there is no explicit recognition or acknowledgment of the different life experiences of women and men, in areas of both public and private life (art. 1). Further, certain forms of racial discrimination may be directed toward women specifically because of their gender, such as the coerced sterilization of indigenous women and the abuse of women workers in the informal sector or domestic workers employed abroad by their employers (art. 2).

The CERD Committee’s General Comment 25 (2000) elaborates that racial discrimination may have consequences that affect primarily or only women, such as pregnancy resulting from racial bias–motivated rape; in some societies, the women victims of such rape may also be ostracized (art. 2). Women may also be further hindered by a lack of access to remedies and complaint mechanisms for racial discrimination because of gender related impediments, such as gender bias in the legal system and discrimination against women in private spheres of life (art. 2). General Comment 25 clearly states that gender discrimination is highly likely to intersect with racial discrimination and urges states to investigate this intersection in a consistent, systematic manner (art. 3). This is a landmark interpretation, and analysis of racial and gender discrimination as indigenous women, minority women, displaced women, imprisoned women, women before a prejudiced justice process, women political prisoners, women in armed conflict, and other unspecified groups are envisaged by the committee as falling within the mandate of CERD.

The CERD Committee succeeds with this General Comment in enhancing its efforts to integrate gender perspectives, incorporate gender analysis, and encourage the use of gender inclusive language in its sessional working methods, including its review of reports submitted by states’ parties, concluding observations, early warning mechanisms and urgent action procedures, and general comments (also known as general recommendations) (art. 4). This is a remarkable commitment, and since it was made, the CERD Committee has passed two other General Comments that show a sophisticated analysis and mainstreaming of gender issues. General Comment 27 (2002) on discrimination against the Roma provides states with measures for the protection of Roma communities. It also refers in several instances to Roma women who are often victims of “double discrimination” (art. 6). In the area of education, for example, states are urged to take responsibility for the high drop-out rates of Roma children and to take into account gender issues that might force girls out of school far earlier than boys (art. 17). The comment calls on government programs, projects, and campaigns in the field of education to take into account the “feminization of poverty” (art. 22). The committee also urges that health programs implemented by states to service Roma communities factor into their policy and administration cultural attitudes that subordinate women and girls and contribute to their lower levels of education (art. 34).

CERD General Comment 29 (2002) focuses on the unique oppression caused by descent based discrimination, discrimination on the grounds of caste and analogous systems of inherited status.¹³ Discriminatory practices against affected communities might include the restricted ability to alter inherited status; socially enforced restrictions on marriage outside the community; private and public segregation, including in education and access to public spaces, places of worship, and public sources of food and water; subjection to debt bondage; and subjection to dehumanizing discourses referring to pollution or untouchability (art. 1). Moving further and further away from the monolithic construction of women seen in first tier instruments, General Comment 29 also identifies the particular vulnerability of women to multiple forms of discrimination in the areas of personal security, employment, and education (art. 12).

The comment goes on to identify discrimination in education based on perceived gender roles for girls as well as caste or descent (art. 44). General Comment 29 specifically refers to sexual exploitation and forced prostitution as gendered experiences for women discriminated against on account of descent. The comment encourages states to account for such abuse and respond to it in projects designed to support these groups (art. 11). Both General Comments 27 and 29 with their careful attention to multiple and intersecting forms of discrimination have been successful in acknowledging claims of Third World feminists and the women-of-color movement that fighting discrimination requires an evaluation of interlocking forms of oppression. The CERD Committee also provides a gender analysis in General Comment 31 on the prevention of racial discrimination in the administration and functioning of the criminal justice system (2005).¹⁴ It is certain that in future comments gender will remain central to any analysis of racially discriminatory practices.

The CERD General Comments focus chiefly on discrimination that can be traced to state policy, for example, discriminatory entrance requirements for schoolchildren or discriminatory selection criteria for public housing. However, less attention is paid to investigating and naming inequality and discrimination as it manifests itself in formal and informal community institutions, including the home and places of worship. Thus, issues such as high incidence of domestic violence or early marriage within marginalized minority groups or cultures are overlooked because the focus of the General Comments is fixed on the position of vulnerable groups vis-à-vis oppressive state policy. Gender discrimination emanating from within the group is studiously avoided in the human rights narrative of second tier rights in an effort to avoid further stigmatizing such groups as the Mormons in North America, the Roma in Europe, and aboriginal peoples in the Pacific region. This omission inadvertently mirrors the omission of first tier rights to subject the family and other private institutions from any serious scrutiny of institutionalized violations against women and girls, particularly those arising from custom and religion.

The second tier instruments also continue to evade issues of sexual autonomy, thus leaving the enjoyment of this freedom in the custody of matriarchs and patriarchs in the family and the community. LGBT communities are well aware that their status as subaltern sexual minorities combined with race, color, descent, nationality, or ethnic features can greatly magnify hostility and even violent reprisals from their own ethnic but heterosexual community as well as from the dominant heterosexual community. This omission places the reality of discrimination on the grounds of race and sexual orientation out of sight and reach of human rights protections.

Third Tier

The distinguishing feature of third tier human rights instruments is that they are focused foremost on gender. Gender is not an afterthought but the core element shaping discriminatory practices against women. Third tier instruments view women’s rights away from the mirror reflection that is a man (formal equality) or the uniform representation of a woman as Everywoman (single category axis). I focus in particular on the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (2003) (Maputo Protocol);¹⁵ CEDAW General Recommendation 12 (1989) on violence against women, Recommendation 14 (1990) on female circumcision, and Recommendation 19 (1992) on violence against women; the CERD General Comment 25 (2000) on gender related dimensions of racial discrimination; and the reports of the UN Special Rapporteurs, particularly, the Special Rapporteur on violence against women and its causes and consequences.¹⁶ Rather than providing a descriptive account of each provision within these instruments, I analyze the most profound distinction between third tier instruments and earlier instruments, namely, the expansion of third tier rights into the private sphere. This move has brought once invisible forms of gender-based discrimination, particularly familial and intimate partner exploitation, abuse and violence against girls and women to the forefront of human rights discourse. Most important, I look at the way in which third tier instruments have brought violence against women into the narrative of human rights law.

The CEDAW Committee’s General Recommendations and the provisions of the Maputo Protocol supply some of the most innovative normative and interpretative protections against inequality and discrimination on the grounds of gender. In 1989, the CEDAW Committee’s General Recommendation 12 specifically called on states to protect women against violence, including sexual violence, abuses in the family, and sexual harassment in the workplace. It also recommended that CEDAW signatories include in their periodic reports to the committee information about the legislative and other measures in force to protect women against violence; the existence of support services for women who are the victims of aggression or abuses; and statistical data on the incidence of violence of all kinds against women and on women who are the victims of violence (art. 1–4).

And in 1992, the CEDAW Committee’s General Recommendation 19 extended CEDAW’s general prohibition on sex discrimination to include gender-based violence, “that is, violence that is directed against a woman because she is a woman or that affects women disproportionately.” General Recommendation 19 states that CEDAW’s definition of discrimination prima facie includes gender-based violence, including acts that inflict physical, mental, or sexual harm or suffering; threats of such acts; coercion; and other deprivations of liberty (art. 6). General Comment 19 provides an illustrative list of those fundamental rights and freedoms that can be impaired by gender-based violence: the right to life; the right not to be subject to torture or to cruel, inhuman, or degrading treatment or punishment; the right to equal protection according to humanitarian norms in times of international or internal armed conflict; the right to liberty and security of the person; the right to equal protection under the law; the right to equality in the family; the right to the highest standard attainable of physical and mental health; and the right to just and favorable conditions of work (art. 7).

It is a defining feature of third tier human rights instruments such as CEDAW General Recommendations that “private” violence is not only identified as a human rights violation but that state parties have an obligation to protect victims, punish abusers, and eliminate the practice in communities (art. 9).

The preamble to the Maputo Protocol points out that “despite the ratification of the African Charter on Human and Peoples’ Rights and other international legal instruments by the majority of States parties, and their solemn commitment to eliminate all forms of discrimination and harmful practices, women in Africa continue to be victims of discrimination and harmful practices.” This statement reminds us that the subject of human rights law and gender equality in Africa cannot be discussed without acknowledging the civil, political, economic, social, and cultural realities that women in sub-Saharan Africa continue to confront despite the existence of a human rights law framework at the international, regional, and domestic levels.

The Maputo Protocol defines violence against women as all acts perpetrated against women that cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts, or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peacetime and during situations of armed conflicts or of war (art. 1[j]). The preamble to the protocol defines violence against women specifically as a form of gender-based discrimination.. A rather bold entry into the private sphere and, particularly, into the family quarters allowed the protocol to emerge as the first international convention to explicitly articulate a woman’s right to a medical abortion when pregnancy endangers the life or health of the pregnant woman or when it results from sexual assault, rape, or incest (art. 14[c]). It provides a far reaching construction of violence against women, including verbal attacks, sexual violence, and harmful traditional practices, conducted in public as well as in private spaces (art. 3, 4[2][a], 5, 11, and 12). Thus, it not only prohibits female circumcision as a harmful traditional practice; it also defines it as an act of violence against women. The Maputo Protocol is important in its emphasis that sexual violence is discriminatory against women. Elderly women are specifically provided for as vulnerable to violence, including sexual abuse (art. 22[b]).¹⁷ This emphasis allows for the inclusion of women beyond reproductive age as targets for specific forms of sexual violence. Violence is not compartmentalized into states of peace and war or into private and public spaces.

The Maputo Protocol’s condemnation of harmful traditional practices was preceded by CEDAW’s General Recommendation 14 on the subject. General Recommendation 14 notes its reliance on the work of experts such as the Special Rapporteur on Traditional Practices Affecting the Health of Women and Children. These precedents as well as Maputo’s location as a regional human rights body allowed it to place the prohibition on harmful traditional practices into early drafts and to negotiate agreements from member states at the signing and ratification stages. Inclusion in the main body of the Maputo Protocol has given the issue greater prominence; however, it is CEDAW’s General Recommendation 14 that provides an extensive, layered interpretation of the cultural, traditional, and economic pressures that allow female circumcision and other harmful traditional practices to flourish. The recommendation identifies partners with whom states can cooperate in the eradication of harmful traditional practices, including traditional birth attendants, universities and other research centers, artists, religious leaders, and local and national women’s networks. This particular focus emphasizes that the home, the community, and other previously “private” spaces are not exempt from the standards of equality and justice and are critical stakeholders in righting inequality.¹⁸

Like the CERD Committee through its General Comments, the Maputo Protocol is cognizant of the multiple forms of discrimination that women experience as a gender group and as individuals. It moves away from formal equality and attempts to engage with the multilayered genres of women in order to better serve women’s interests and concerns with regard to the enjoyment of their human rights. The protocol calls on African states to take special measures to protect women in distress, including elderly poor women, women heads of families, women from marginalized population groups, and women with disabilities (art. 22 and 23). States are called upon to provide these women with an environment suitable for their condition and their special physical, economic, and social needs. It takes into account that formal equality will not suffice for women who are historically and systematically subordinate to men and to other women and who require special assistance to overcome physical, economic, and social disadvantages before they can begin to compete on a level playing field (art. 24).¹⁹

Feminist Critique of International Humanitarian Law

Before the consolidation of an international humanitarian law framework (and long before the consolidation of an international human rights law framework), international law did not directly address the status of women in armed conflict, although implicitly it reduced women’s vulnerability to rape and other forms of violence. The Japanese Army’s enslavement of Korean and other women in the 1930s and then throughout World War II is a good example of the outcomes of this exclusion of women from the public realm. Because women and girls were perceived as private objects rather than public subjects in law (Mitchell 2005: 236–37), the fact that they suffered extreme physical and mental anguish as a result of their enslavement was irrelevant. Military commanders saw this system of military enslavement as vital to maintaining troop discipline, public health, and public order in occupied areas. And even though the sexual violence was illegal, it was seen as inevitable during armed conflict.

Sadly, the Allied response to war crimes committed by the Axis Powers affirmed this position. The military trials in Tokyo and Nuremberg represent the first international effort to establish individual criminal accountability for war crimes and crimes against humanity. The prosecution of German and Japanese leaders showed that the enforcement of human rights could be possible with political will and international cooperation. An international treaty prohibited slavery in 1926, and yet the narrative of the international criminal justice process ignored well documented evidence of the systematic enslavement of Asian girls and women in World War II.²⁰ The first comprehensive legal narrative condemning the Japanese Army’s enslavement of up to two hundred thousand women during World War II was promulgated in 1994, nearly fifty years after the fact. The International Commission of Jurists (ICoJ) commissioned a study that led to a mission to the Philippines, the People’s Republic of Korea, and Japan (Dolgopol and Paranjape 1994).

All laws are products of their place and time. The atrocities committed by the Axis Powers, particularly the Holocaust, influenced the four Geneva Conventions (1947).²¹ While little reference is made of it in the Nuremberg judgment, women’s experience of anti-Semitism and of the Holocaust was a gendered experience. Fionnula Ní Aoláin provides one of the few gendered legal analyses of the Holocaust. She describes in particular how traditional attitudes toward women, their gender, and unique maternal responsibilities heightened the vulnerability of women living in ghettos (2000b: 53–55). Many of the atrocities committed against women in the Holocaust centered on their maternal position and included the deprivation of the reproductive rights of women through enforced sterilization, abortions, and separation from their children (ibid., 54, 57, 58). Women with young children were usually selected for extermination upon their arrival at camps. Their maternal status and their continued attachment to their children made them uniquely assailable and defenseless (ibid., 53, 56). Ní Aoláin’s insightful gender analysis of the Holocaust explains in part the preoccupation of the Geneva Conventions with the protection of women as mothers. Few of the several specific references to women in the Geneva Conventions and the Additional Protocols (1977) transcend the woman-as-mother model of vulnerability and victimization in armed conflict.

This maternal narrative of women and their experience of war predates World War II and the Holocaust. Article 46 of both the Hague Conventions of 1899 and 1907 also provided an “honor based” construction of sexual violence. They asserted that “Family honor and rights [my emphasis], the lives and persons, and private property, as well as religious convictions and practice must be respected.” This opaque language conceptualized sexual violence as a crime offending the virtue of women as opposed to a crime of aggression violating the human dignity and physical integrity of women. Family honor connotes the chastity of women and the potency of men to penetrate as well as protect “their” women from impure relations with rival men, and it is rooted in such patriarchal considerations as fear of miscegenation.²² At its most basic construction, this is based on the idea that women raped by the enemy army/nation/race will bear children that will be alienated from the targeted group. Conversely, the symbolic poisoning of women by the enemy rapist makes them physically, psychologically, or socially infertile.²³ When enemy belligerents kidnap, rape, marry, or impregnate women, the fear that men will be deprived of a reproductive asset solidifies the construction of rape as an honor crime that primarily befalls menfolk as well as their communities. The patriarchal anxieties ignore the violent and traumatizing impact of rape on individual women. Ultimately, concepts of virtue and family honor objectify “pure” women and stigmatize “impure” women according to the gender standards of the day (Turshen 2001: 65). Both objectification and stigmatization are tools for the policing of women’s sexual autonomy, economic productivity, and sexual reproductive potential in conflict.

Similarly, the exclusive portrayal by the laws of war of all women as “mothers,” “nursing mothers,” or “pregnant women” strips women of individuality and focuses legal protection on women’s sexual reproductive potential.²⁴ This presumes and perpetuates the patriarchal claim of guardianship over the sexual and reproductive function and potential of women, an androcentric view of women’s central role in society.²⁵

The legal implications of reducing sexual violence to an honor crime are evident in the categorization of crimes. While the Geneva Convention (IV) prohibits rape, the category of crimes known as grave breaches does not include rape. The legal significance of this omission is that in the case of violations categorized as “grave breaches” of international humanitarian law—the erga omnes principle obliges states to prosecute violators or extradite them for prosecution in another jurisdiction. The placement of rape outside the category of grave breaches signified that sexual violence was subject to domestic jurisdiction only at the discretion of national prosecutors and not as a positive obligation.

The International Committee of the Red Cross (ICRC) attempted to remedy this miscategorization in 1958. The ICRC Commentary on the Geneva Convention (volume IV) recognized that the grave breach of “inhuman treatment” should be interpreted in the context of Article 27 (which prohibits rape) (Uhler and Coursier 1958). However, this contribution was ignored by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1977) on the enactment of the Optional Protocols (I and II of 1977) to the Geneva Conventions. These protocols were introduced in order to increase the scope of international humanitarian law from international conflicts between states to non-international conflicts, such as civil wars and armed resistance against colonial domination and alien occupation.

The only provision applicable to non-international armed conflicts before the adoption of Protocol II was Article 3, common to all four Geneva Conventions of 1949.²⁶ This article proved inadequate since the majority of the victims of armed conflicts since 1945 have been victims of non-international conflicts and non-international conflicts are more likely to target civilians than are international conflicts.²⁷ The aim of Protocol II relating to the protection of victims of non-international armed conflict was to extend the protections of international humanitarian law to internal wars fought between “government’s armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol” (art. 1).

Despite the unprecedented attention the Diplomatic Conference raised around the experience of civilians in contemporary armed conflicts, the humanitarian law narrative remained fixated on women as mothers and generally marginalized any wider interpretation and analysis of gender and its interface with armed conflict.

Since the mid-1990s, there have been impressive gains whereby the trial chambers of ad hoc criminal tribunals have clearly adjudicated rape and other forms of sexual violence as acts of aggression against individual women. And the human rights discourse also increasingly eschews the narrative of vulnerable mothers in favor of civilian women navigating and challenging the insecurity of armed conflict. The gendered human rights critique at present requires scholars to privilege individual harm over collective harm, and at times it denies the collective harm altogether. This approach is said to provide women with the full recognition their war experience merits.

These positions, however, have left little room for an inquiry into the intersection between what Tina Sideris (Sideris 2001a: 57) refers to as the individual psychic injury and collective social traumatization caused by political violence. Entirely erasing the intersection between communal and individual harm makes it difficult for scholars to analyze the root causes, the motive behind and the impact of war crimes and crimes against humanity. The widespread repercussions of sexual violence, such as when women are raped in order to force an entire community to flee a region, cannot be entirely categorized as attacks against the individual. Particularly in the case of crimes against humanity, where a threshold of “widespread or systematic” attacks must be attained, the collective social trauma must necessarily be incorporated into the legal narrative. Introducing the collective impact of gender-based violence need not negate women’s individual suffering, and it can enhance an understanding of the extent of harm and aggravating ramifications for women survivors.

The gender critique has focused its gaze on international humanitarian law and the way it constructs women chiefly as mothers and wives in relation to men. What is missing from this critique is women’s own perception of their gender roles regarding, for example, the care and protection of children and the self-sacrifice of personal interests over those of their families and communities. I introduce the following three examples of women’s experience of conflict in Asia and Europe to illustrate timely disruptions by scholars of the dichotomous construction of violence against women as either individual or communal in nature. The studies of the repatriation of abducted Indian women from Pakistan, the repatriation of Korean women from enslavement by the Japanese military, and the detention of Jewish women in ghettos and in the Holocaust provide vastly different contexts of armed conflict but raise related questions about constructions of gender and violence and the most effective responses to the harms suffered by women.

Ritu Menon and Kamla Bhasin have analyzed how women themselves do not necessarily separate their individual and communal identities from their experience of gender-based violence. Menon and Bhasin describe the political capital gained by the Indian government in its response to abducted women through the Central Recovery Operation carried out between 1948 and 1956.²⁸ The rescue was bitter and painful for many women: the women were abducted as Hindus, converted and married as Muslims, then repatriated where they reverted back to Hinduism; but they were required to relinquish their children because they were born to Muslim fathers and subsequently disowned as impure and ineligible for membership within their erstwhile family and community. Their identities were in a continual state of demolition and reconstruction by others (1996: 3 and 16).

The individual harm that some “rescued” women experienced cannot be grasped without an understanding of gender constructions governing the trajectory of women’s lives within both Hindu and Muslim communities. Individual and communal ideas about gender roles, particularly relating to motherhood and marriage, shaped women’s resistance to rescue. Thus, Menon and Bhasin’s research shows that many Hindu women expressed a desire to remain with their husband-captors in order to preserve relationships with their Muslim children and/or to preserve the status and protection provided by Muslim husbands within the sacred institution of marriage. An intimate knowledge and even acceptance, in part or in whole, of communitywide ideas of motherhood, marriage, chastity, and honor shaped these individual choices to resist repatriation. The failure of the state’s remedy (a recovery operation) to take this confluence of individual and community harm into account resulted in the pain and bitterness that Menon and Bhasin so poignantly recount.

Testimonies taken by the ICoJ from Korean victims of Japanese wartime military enslavement reveal the interconnectedness of individual harm and community harm in women’s narratives of gender-based violence. ICoJ reports, in contrast to the scholarship of Menon and Bhasin, focus on a legal narrative and the need to insert both an individual and collective standard of harm when understanding women’s war experiences. Because the ICoJ testimonies were collected decades after the period of enslavement, they prominently featured the hardship that women experienced after their liberation and repatriation. Society’s rejection and the women’s internalization of this rejection were responsible for much of this hardship. Sexual violence summarily and irrevocably deprived them of the honor and inviolability that attaches in patriarchal societies only to unmarried virgins, wives, and mothers.

I selected this first narrative because it so clearly emphasizes the interruption of motherhood and its fruits through stigmatization, ostracism, and a perpetual sexual objectification of the survivor of enslavement.

When I reached my house, my husband received me very warmly while in the presence of the American soldiers. However, when the soldiers had left he immediately distanced himself from me. He told me to sleep in a separate room and made it very clear that he would not share a bedroom with me anymore. I swallowed this insult because of the fact that I could at least be near my children. However, he would not allow me to share my children’s bedroom. I was thus isolated in my own house. Thereafter, I noticed that my husband also treated me just like a comfort woman. He would come to me whenever he felt the need for sex. He said he did not want to restore our original relationship because he termed me as a leftover of the Japanese soldiers. He could not reconcile himself to the fact that it was not my doing and that I was not at fault. My husband never fully understood or even tried to understand my plight. (Dogopol and Paranjape 1994: 74)

Another woman’s testimony describes the interruption of motherhood through the loss of reproductive potential: “Because of her experiences she had to have a hysterectomy and continues to rue the fact that she has never been able to have children. At the age of 28 she married a man twenty-three years her senior and lived with him and his five children for three years, but as she had not been able to have any children, his family refused to give her any property after his death. She lived for many years in a Buddhist temple, helping the monks by cooking and cleaning and doing general chores” (ibid., 81). The ICoJ report places the sexual abuse of women into a patriarchal framework where male hegemony is absolute. The report duly decries this structural inequality yet also shows that the victims of sexual violence recount their experience of rejection long after the armed conflict in the patriarchal language of “shame,” “virtue,” “honor,” and “impurity.” The loss of access to family life and marriage, sexual intimacy, childbearing, and child rearing is lamented throughout the testimonies. This gendered presentation of victim testimonies does not obscure the fact that many women do in fact embrace the gender roles of mothering and childbearing as sites of social affirmation and personal fulfillment. Without acknowledging this, the resultant legal narrative of justice and remedies would have missed the fact that “the acts of brutality committed against these women go beyond the immediate suffering of having to endure a continuous rape … the pain these women endured has continued throughout their lifetime” (ibid., 57).

Ní Aoláin’s study of a gender and sex based view of the Holocaust, which I have referred to above, also responds to the postwar enterprise of justice, which fell short of naming many harms that women experienced. To illustrate the failure of the laws of war to engage with the totality of harm experienced by women, Ní Aoláin focuses particularly on the harm arising from the separation of mothers from their children upon arrival at concentration or labor camps (2000b: 63). She makes clear that mothering is a gendered undertaking and both the Nazi captors and their victims understood it as such (ibid., 58).

Ní Aoláin recognizes the problematic nature of privileging motherhood over individual personhood; however, her analysis individualizes the harm of forcible separation by arguing for its categorization as another quantifiable harm occurring in the realm of the sexual self and not exclusively in the realm of the familial self (ibid.). Ní Aoláin points out that many women also articulate such separation from children as a physical act of aggression against their own person, concentrated on their own experienced sense of being female, aimed at undermining their sexual identity by taking away the expression of that reproductive self or product of sexuality, namely, the child (ibid., 61–62). I fully concur with Ní Aoláin when she judges the laws of war a failure in the wake of the Holocaust because they did not recognize forced separation as sex based harm targeting the woman’s body, both in its symbolic and actual manifestations (ibid.).²⁹

Sexual violence, whether inside or outside of armed conflict, carries a unique stigma because of its general perception as a specifically sexual violation, a view that tends to subsume its violent nature and gravity as a gender-specific offense (Mitchell 2005: 247). There are few modern societies that do not valorize purity and fertility in women. Acknowledging this valorization is a necessary step toward investigating the power of rape to destroy the fabric of society through the gendered targeting of women and, more important, toward finding social, political, and legal responses that can diminish this power. The call for the individualization of gender-based violence within international humanitarian law and a focus thereon as an act of aggression rather than an honor crime or a crime against a community is a valid one. However, a focus on the individual need not exclude her relationship with her community and its dominant constructions of gender, be they contested or accepted in whole or in part.

My brief accounts of the repatriation of Indian-Hindu-Muslim women and of Korean women highlight the fact that women’s experience of gender-based violence is not extinguished with the end of armed hostilities. Hostile legal, social, and political responses often pursue women survivors of violence such that a state of conflict persists, at least in their private lives. It is therefore a striking omission that while international humanitarian law protections have moved from international conflicts to encompass internal conflicts involving nonstate actors, they have failed to expand their temporal jurisdiction, which is restricted to active hostilities. Thus, the scope of protection provided by international humanitarian law ends abruptly with the official ending of hostilities. The resultant narrative suggests that gender-based violence is temporal and unique to armed conflict. This short-sightedness results in a lost opportunity for policy makers (such as members of the Council of Europe responsible for the drafting of reports on sexual violence in armed conflict), who are charged to dismantle and reconstruct political and social structures that contribute to the conditions for the perpetration of widespread sexual violence against women in war and its aftermath. Leaving these structures intact generates new forms of sexual exploitation exacerbated by postconflict conditions.

Sexual exploitation proliferates in the immediate aftermath of armed conflict. Peacekeepers, humanitarian workers, invaders, occupying forces, demobilized fighters, and retreating forces are regularly implicated in the sexual exploitation of women and girls made vulnerable by months or even years of armed conflict. In the aftermath of World War II, Susanne Zwingel (2004: 8) describes how in the French, British, and American occupation zones, the situation of material deprivation generated considerable dimensions of “occasional prostitution” in exchange for basic goods.³⁰ Richard W. McCormick (2001: 106) reviews Helke Ander’s film BeFreier und Befreite (1992) (U.S. title: Liberators Take Liberties) and presents as evidence of mass rapes an interview with a doctor who treated German women raped by the French on a massive scale in Freudenstadt, a town in the Black Forest, as a reprisal for atrocities committed against French civilians.

Yuki Tanaka has written about the widespread incidence of sexual violence by Allies in occupied Japan. He describes American soldiers breaking into the homes of civilians and raping women and girls, fondling girls and women clerking in public offices, and abducting girls and women for sexual violence (Tanaka 2002: 121–22). Most disturbing, however, is Tanaka’s revelation that the defeated Japanese government created a “comfort woman” system for the occupation forces. Duplicitous police officers recruited Japanese geishas and prostitutes and coerced women and girls impoverished by the war into volunteering for a “special task” (ibid., 136–39). GIs typically gang raped “volunteers” repeatedly before they were sent to comfort stations also referred to as “recreation” and “amusement” centers (ibid., 140). Tanaka’s account of the normalization of widespread and systematic sexual violence by Allied occupiers emphasizes that women’s security remains precarious even as transitional governments appear to commit to democracy, rule of law, and good governance projects.

These postwar situations of gender-based violence are equal in scale to violence committed against civilian populations 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 traumatic consequences (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. The rapporteur’s report also provides insight into existing structural inequalities in Rwanda before the genocide, such as women’s lack of access to land rights and poorly developed reproductive health care.