Legal analysis

How new technologies are violating women’s rights in Saudi Arabia

Christine Chinkin and Madeleine Rees consider the scope and content of International Law at the intersection of new technologies, violence against women and war. 

Saudi women arrive at a mosque in Riyadh. Hassan Ammar/AP/Global Citizen

Saudi Arabia’s denial of women’s rights is blatant, despite its hypocritical accession to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 2000. Its apparent impunity from widespread condemnation for its apartheid-like policies and practices with respect to women by states such as the US and UK rests on its geo-strategic importance in the global neo-liberal economic system, most particularly its status as an oil producing and weapons importing state. These countries continue to license export of billions of pounds of arms to Saudi Arabia despite the latter’s leading role in the coalition against anti-government forces in the war in Yemen (see House of Commons Library, Briefing Paper). The UN Human Rights Council Commission of Inquiry into the situation in Yemen has reported that coalition air strikes have hit ‘residential areas, markets, funerals, weddings, detention facilities, civilian boats and medical facilities’ causing ‘serious concerns about the targeting process applied by the coalition’.  In face of the growing and related humanitarian disaster in Yemen, UK ministers have seen ‘no political justification’ for suspending or withdrawing arms sales, although the House of Lords Select Committee on International Relations has called the  UK arms sales unlawful and that ministers are not checking  their use. The similar situation in the US would, in the words of Donald Trump, hurt the US more than Saudi Arabia.  The murder of a single journalist, Jamal Khashoggi, apparently merited more concern about arms sales– although now muted – than the deaths of thousands of Yemeni civilians, or the rights of women in Saudi Arabia.

Saudi women have now become the target of a new form of weapon – the google app, Absher, which is owned and operated by the interior ministry of Saudi Arabia and allows men to track women’s movements including across borders. It has unsurprisingly been greeted with widespread outrage by feminists, human rights bodies and some politicians because of its evident violation of women’s rights to freedom of movement and association, and also, we argue, the right to be free from gender-based violence. In its concluding observations to Saudi Arabia the CEDAW Committee noted ‘with concern’ male relatives who bring legal claims against “disobedient” female dependents fleeing domestic violence and the frequent ‘forceful return by law enforcement officials of fleeing women to their abusers.’ This app would make fleeing abuse even harder. While not as evidently a weapon as typhoon combat aircraft and associated systems, or the conventional weapons used to subjugate women – knives and guns – the app means that women experience the psychological violence of unremitting exercise of control over their bodies without limitations of time or space.

The UN Security Council in its women peace and security agenda has recognised that sexual violence can constitute a tactic of war and a tactic of terror that constitutes a threat to international peace and security (see UN SC Resolutions 1820, 2008; 1888, 2009; 2106, 2013; 2242, 2015). This formulation was welcome acknowledgment that conflict-related sexual violence can be deliberate, systemic and structural but has also been criticised for being too narrow. It fails to take account of the multiple forms of sexual violence, its gendered nature, including its occurrence against those perceived to have deviant sexual or gender identity, or its incidence across the continuum from peace through to armed conflict. The conjunction of use in Saudi Arabia of both conventional weapons of war against Yemeni civilians and this app highlights the connections between foreign and domestic policy, war and peace, and the need for a broader understanding in international law of weapons and their regulation.

The CEDAW Committee has made some moves in this direction in its General Recommendation No. 35  Without foreseeing the precise contours of such an app the Committee has asserted that gender-based violence against women is affected and often exacerbated by technological factors (as well as cultural, economic, ideological, political, religious, social and environmental factors) as evidenced by ‘the increased globalization of economic activities, including global supply chains, the extractive and offshoring industry, militarization, foreign occupation, armed conflict’.  It also notes that gender-based violence against women can result from ‘the acts or omissions of State or non-State actors, acting territorially or extraterritoriality, including extraterritorial military actions of States, …, or extraterritorial operations of private corporations.’ The applicability of both the listed exacerbating factors and extraterritorial activities to the Saudi Arabia situation is striking – the extra-territorial activities of Google and the extra-territorial application of the app where a Saudi woman goes abroad, as well as the omission by the UK to determine the use of the weapons supplied to Saudi Arabia, “there is no tracking of the use of arms supplied by the UK”.

The multiple issues of state responsibility are complex. The UK denies legal responsibility for violations of international humanitarian law that result from the use of UK supplied arms. Under the general law of state responsibility Saudi Arabia is responsible for its own international wrongs, war crimes and acts or omissions that constitute gender-based violence or result in gender-based violence or other violations of women’s human rights carried out by its own agents, whether at home or abroad. Thus the CEDAW Committee has expressed its concern that Saudi Arabia ‘is responsible for violations of the rights of Yemeni women and girls’ both through indiscriminate air strikes and the life-threatening levels of malnutrition and disease.  It might also be argued that just as violations of human rights committed by a private security company engaged by a state to provide security or military support are attributable to the state, Saudi Arabia should be responsible for an international wrong through the use of this app to reinforce control over women in accordance with its state policy. Further, the state is also responsible for its failure to exercise due diligence to prevent and protect women against violations of their human rights by non-state actors – the men using the apps and again, potentially, Google. Google too may be complicit in the violation of women’s rights. In General Recommendation No. 35, the CEDAW Committee insists that “States parties are required to take the steps necessary to prevent human rights violations perpetrated abroad by corporations over which they may exercise influence, whether through regulatory means or the use of incentives, including economic incentives.”

Technological advances may also of course provide benefits to women; the app may, as Google claims, make it easier for Saudi women to travel, to escape from the immediate physical control of male relatives or law enforcement officials. But this is at the cost of never being free from that virtual control. The app must be seen in the broader context of the continuum of violence by the state and by non-state actors with the complicity of the state through weaponisation, commodification of women and the securitisation of movement – to track suspected terrorists, extremists and fleeing women. Saudi Arabia benefits both from the reluctance of western states to jeopardise their economically valuable relationship with that state and by the fragmentation that allows armed conflict, arms sales, access to oil, gender-based violence against women, freedom of movement and commercial development and use of technology to be regarded and regulated (if at all) in separate silos and not understood as a continuum of violence to uphold patriarchy and inequality.


About the authors

Professor Christine Chinkin CMG FBA is Professorial Research Fellow in the Centre for Women, Peace and Security, where she leads three major projects: ‘A Feminist International Law of Peace and Security’ funded by the AHRC, ‘Gendered Peace’ funded by the ERC and the UKRI GCRF Gender, Justice and Security Hub.

 

Madeleine Rees, OBE is a British lawyer and current Secretary General of the Women’s International League for Peace and Freedom.

 

 

 

Inter-American Court reaches landmark decision on torture and sexual slavery

Christine Chinkin, Gema Fernández Rodríguez de Liévana and Keina Yoshida with the first in a series of posts analysing Lopez Soto and Others v Venezuela, a ground-breaking case concerning gender based violence in Venezuela.

Linda Loaiza López Soto giving evidence at the Inter-American Court of Human Rights © Inter-American Court of Human Rights

Introduction

In a series of posts we provide a summary and analysis of the ground-breaking case of Lopez Soto and Others v Venezuela. This first post provides a brief overview of the facts and sketches out the decision of the Inter-American Court of Human Rights. A second post provides an analysis contextualised more broadly within the international women’s human rights framework. A third post looks specifically at the Court’s decision on sexual slavery in the broader context of the legal framework on trafficking. We have written this series together as part of the feminist methodology of collaboration.

The complainant, Ms Linda Loaiza López Soto, is lawyer and human rights defender who has fought for 14 years to obtain justice for herself, her family and for women in Venezuela, where there are incredibly high levels of violence against women and impunity for those acts. For example, Venezuela is currently ranked 101 on the Gender Inequality Index and the Committee on the Elimination of Discrimination against Women has expressed its deep concern “that violence against women and girls is widespread and on the rise”.

The decision is currently only available in Spanish, and became public on Friday 16 November, 2018. It forms part of the growing corpus of the Inter-American Court’s important jurisprudence on gender-based violence against women and girls (VAWG) following decisions such as Campo Algodonero (Gonzalez v Mexico), Penal Castro Castro v Peru, Rosendu Cantu v Mexico and Velasquez Paiz v Guatemala.

The decision is the first against Venezuela on the issue of violence against women and girls (VAWG). It is also the first decision to find a State responsible for torture and sexual slavery perpetrated by a so-called ‘private actor’. As such, the reasoning of the Court in relation to these aspects is especially significant.

The Facts

When Ms Lopez Soto was 18 years old she was kidnapped, held captive, continually raped, tortured and kept in conditions of sexual slavery over a period of almost 4 months (27 March until 19 July 2001). She was threatened by her assailant with a firearm and moved from place to place, from hotels to apartments. As well as physical violence and sexual abuse she suffered multiple other forms of violence, including psychological, verbal and cyber-abuse as he forced her to perform sex acts on camera. The perpetrator told her that he had powerful connections and that he would never be arrested for these acts. He also posed as her partner and explained any resistance on her part as ‘domestic’ or presented them as ‘relationship difficulties’.

On 19 July 2001, Ms Lopez Soto was able to escape. In addition to her horrific injuries, she testified to further continued suffering at the hands of the State. It took the authorities 5 hours to provide her with medical assistance during which time she remained in the apartment where she had been held fearing the perpetrator’s return (she had managed to attract attention while he was away). Ms Lopez Soto underwent 14 surgeries for the injuries that he had inflicted. Police investigations were from the outset inadequate as they favoured the account of her assailant – a person of high social standing – and his false assertion that she was a “prostitute”. Over the next 5 years, the complainant fought to obtain justice including going on hunger strike. Despite all her efforts, a drawn out judicial process failed to convict her assailant for sexual violence, thereby impugning her credibility and leaving her without remedies for an integral part of the violence that was perpetrated upon her. This process was plagued by irregularities and tainted by gender stereotypes, explored further in our second post.

The case was also brought by members of the complainant’s family. At the time, Ms Lopez Soto’s sister had immediately and repeatedly reported her absence to the police, but the authorities did not admit any complaint in relation to her disappearance, on the basis that the assailant was ‘her partner’. The police had both the name and telephone number of the kidnapper and yet nothing was done to protect her from the months of violence that she would suffer.

On 2 November 2016, the Inter-American Commission of Human Rights referred the case before the jurisdiction of the court.

Decision of the Court

The unanimous Court found that Venezuela had violated a plethora of Ms Lopez Soto’s rights under the Inter-American Convention on Human Rights; the Convention of Belém do Pará and the Inter-American Convention to Prevent and Punish Torture. Rights violated were:  to juridical personality, to personal integrity, the prohibition of torture and other cruel, inhuman or degrading treatments; the prohibition of slavery, to personal liberty, to a fair trial, dignity, autonomy and private life; freedom of movement and residence; to judicial protection and equality before the law, all in conjunction with the State’s obligation to respect and guarantee the rights without any discrimination as well as the obligation to adopt domestic provisions.

The Court also concluded that the State had violated her family’s rights to personal integrity due to the uncertainty experienced and the treatment that they received at the hands of the State.

Reparations

An important part of the Inter-American Court’s jurisprudence relates to its decisions on reparations, which are binding upon the State party and more substantial and transformative than the jurisprudence of the European Court on Human Rights. The Court ordered inter alia, the State to carry out an effective criminal process to punish those responsible for the torture and sexual violence that Ms Lopez Soto suffered; pay financial compensation for pecuniary and non-pecuniary damages, create a national database on violence against women, carry out legislative and institutional changes, perform a public act in recognition of its responsibility for violations of international law and adopt and implement protocols on investigation of violence against women.

The reparations go beyond just satisfaction in pronouncing the violations, making it clear that Ms Lopez Soto and her family must be provided with medical and psychological support for the harms they have endured, by professionals of their choice. This is important since many organisations have highlighted the re-victimisation of victims by services which are only provided by the very people who have abused them or have caused trauma. The reparations are also transformative in the sense that they order the State to provide Ms Lopez Soto with a scholarship so that she can finish her professional education in a local or foreign university to which she gains admission. The Court also ordered the State to create an educational programme under Ms Lopez Soto’s name to be taught in the national curriculum.

Conclusion

This is yet another ground-breaking decision on state responsibility for acts of gender-based violence against women by non-state actors from the Inter-American system. In the second part of this blog we will provide an analysis of some of the key sections of the Court’s reasoning specifically in relation to the sexual slavery and torture. These are the most significant parts of the judgment with regards to their importation to the VAWG landscape.

 

Read more

Further information on the case is available in English on CEJIL’s website. Information about other landmark cases concerning acts of gender-based violence against women can be found on the LSE WPS ‘Tackling Violence Against Women’ Resource site.


About the authors

Professor Christine Chinkin CMG FBA is Professorial Research Fellow in the Centre for Women, Peace and Security, where she leads two major projects: ‘A Feminist International Law of Peace and Security’ funded by the AHRC and ‘Gendered Peace’, funded by the ERC.

 

Gema Fernández Rodríguez de Liévana is a Spanish human rights lawyer who specialises in human trafficking, violence against women and sexual and reproductive rights. She is managing attorney at Women’s Link Worldwide.

 

Dr Keina Yoshida (@intlawninja) is a Research Officer in the Centre for Women, Peace and Security and a barrister at Doughty Street Chambers. As part of the Feminist International Law of Peace and Security project Keina is researching the links between the environment, the Earth, the gendered causes and impacts of violence against women, and structural inequalities in the context of international legal conceptions of peace and security.

 

Special Rapporteur on Trafficking urges human rights approach and integration with the WPS agenda

Christine Chinkin and Gema Fernández Rodríguez de Liévana analyse the latest report from the UN trafficking expert, and find reason and opportunity for a more joined up approach to tackling trafficking of women and girls.

Heat map of human trafficking activity across the world. By DARPA graphic

Last year the Centre for Women, Peace and Security published a Working Paper that reflected upon the interplay between the different international legal regimes that have evolved for combatting gender-based violence against women, in peacetime and in conflict, and human trafficking. The report presented to the UN General Assembly on 26 October 2018 by the Special Rapporteur on trafficking in persons, especially women and girls, Maria Grazia Giammarinaro (SR), built upon some of the arguments in urging states to adopt a human rights approach to trafficking and for its integration with the Women Peace and Security (WPS) agenda. The SR emphasises the gendered dimensions of trafficking in persons and its disproportionate impact upon women and girls in conflict and post-conflict. She notes that while the number of male victims of trafficking has significantly increased over the past decade, women and girls make up 51% and 20% of trafficking victims respectively. Women and girls are disproportionately subject to trafficking for sexual exploitation, which, when committed in conflict, can constitute conflict-related sexual violence. Nevertheless, recognition of trafficking as a gendered phenomenon has only been slowly acknowledged.

Since the adoption of Resolution 1325 (2000) the UN Security Council has considered sexual violence against women and girls in conflict as a threat to international peace and security. In its subsequent WPS resolution 1820 (2008) the Council affirmed that effective measures to prevent and respond to sexual violence as a tactic of war can ‘significantly contribute to the maintenance of international peace and security’ and demanded that ‘all parties’ to armed conflict protect civilians against such violence. The Council has also addressed human trafficking, (Resolution 2331 (2016); Resolution 2388 (2017), and has identified the relationship between trafficking, sexual violence in armed conflict and terrorism, all of which threaten international peace and security. But it has failed to integrate this understanding with its own WPS agenda. This disconnect undermines a holistic approach towards combatting trafficking in persons, conflict-affected sexual violence and gender-based violence against women, crimes that in the lived experiences of women are often interlinked and not easily separated. It also casts doubt on the Council’s awareness of debates around the continuum of sexual violence across war and peace, as well as its multiple conflict-related manifestations outside those of certain terrorist groups, which are the primary focus of the resolutions on trafficking.

In contrast the SR recommends the integration of trafficking into the WPS agenda to complement ongoing anti-trafficking efforts at the global level, including those of the Security Council. This tactic reinforces the importance of human rights in tackling human trafficking: WPS is in essence a human rights, not a security, agenda, the SR is a human rights mandate and trafficking of women and girls constitutes a violation of their human rights and gender-based violence against women. Under human rights law states must exercise due diligence to prevent, investigate, prosecute and punish violence against women and accord appropriate reparations to its victims. Most states however perceive human trafficking through a criminal law, immigration and/or security lens that gives little attention to their human rights obligations.

Integrating human trafficking into WPS allows for a breakdown of appropriate responses under the four pillars of prevention, protection, participation and relief and recovery. The SR provides examples under each of these heads as well as practical recommendations. For instance under the prevention pillar she elucidates that conflict is systematically and systemically linked with the risk of being trafficked; this risk should be routinely taken into account from the very onset of conflict and immediate preventive measures introduced. Another constant consequence of conflict is the vulnerability of displaced and fleeing persons to trafficking. She suggests that IDP and refugee camps establish a registry of all persons residing in the camp as a protective measure against disappearance in conjunction with facilities for immediate and secure reporting of missing persons to allow for prompt investigation. Delay reduces the probability of a successful outcome to any such investigation. (Cottonfield; Guatemala). Most fundamentally, given the intersection between trafficking and other forms of violence against women, preventative anti-trafficking measures are to be considered ‘both as life-saving interventions and as being aimed at preventing violence against women.’

The need for consultation with women is captured by the WPS pillars for protection and prevention, as well as for participation. The SR emphasises its importance in the context of trafficked women observing that a widespread failure to recognise the connection between conflict and trafficking as a form of conflict-affected sexual violence means that it is often overlooked during conflict and is omitted from peace processes and planning for post-conflict reconstruction. But survivors of trafficking can make significant contributions to designing and implementing anti-trafficking programmes that are essential to breaking the cycle of violence that impedes a sustainable gendered peace. Women can provide insights into the local economy and assist in programme for reduction of the economic dependency that underpins further vulnerability to trafficking. Victims of trafficking can work with others to raise awareness of the predatory post-conflict economy that fuels demand for trafficking and to establish community-based protective networks. Effective programmes for relief and recovery with informed input from trafficked persons and a gendered approach toward access to and delivery of economic and social rights are described as ‘essential’ to long term recovery. Failure to develop and implement such policies lessens the likelihood of achieving stability and human security post-conflict (including food, health, gender and physical security) that are crucial elements in the prevention of extremism and trafficking.

The same is true of land reform. Access to land and livelihoods are frequently understood as post-conflict economic reconstruction rather than as aspects of combatting conflict-related sexual violence and its continuation in post-conflict. The SR describes the connection between conflict-related sexual violence and the forcible seizing of land, mines and natural resources that leads to forced displacement and enhances vulnerability to being trafficked. Victims are subjected to sexual exploitation and forced labour in illegal mines, and become economic commodities in the male dominated extractive industries that are operated by non-state actors outside the protection of the state. In seeking further research into the linkages between conflict-related sexual violence, trafficking, dispossession of land, exploitation of natural resources and of women, the SR expresses concerns in common with the Special Representative of the Secretary-General (SRSG) on conflict-related sexual violence. The latter also explains how sexual violence is used strategically to grasp control of land and resources, destroying the physical and economic security of displaced women and making socioeconomic reintegration vital to relief and recovery. The SRSG urges the Security Council to address the nexus between trafficking in persons and conflict-related sexual violence. Her mandate stems from Resolution 1888 (2009) thus strengthening the argument for integration of these currently separated agendas. The CEDAW Committee too has explained that trafficking is exacerbated during and after conflict and that conflict-affected areas constitute places of origin, transit and destination for trafficking (CEDAW Committee, General Recommendation No. 30). Taken together these expert opinions facilitate ‘joined up thinking … grounded in international law and a rights-based and victim-centred approach that is focused on the prevention of gender-based violence and the protection of women and girls from such violence in situations of armed conflict, displacement and post-conflict settings.’

 


About the authors

Professor Christine Chinkin CMG FBA is Professorial Research Fellow in the Centre for Women, Peace and Security, where she leads two major projects: ‘A Feminist International Law of Peace and Security’ funded by the AHRC and ‘Gendered Peace’, funded by the ERC.

 

Gema Fernández Rodríguez de Liévana is a Spanish human rights lawyer who specialises in human trafficking, violence against women and sexual and reproductive rights. She is managing attorney at Women’s Link Worldwide.

 

Preventing and punishing sexual violence in war post-Bemba

Following the acquittal of Jean-Pierre Bemba Gombo by the International Criminal Court, Louise Arimatsu reflects on what steps might be taken to more effectively address sexual violence in conflict. 

The International Criminal Court (iStock.com/LIVINUS)

Preventing sexual violence in conflict has been a high priority for the international community for at least the last two decades exemplified by the myriad of policy, legal and institutional measures adopted by states at domestic and international levels.  While we might debate the extent to which prosecutions can deter sexual violence in armed conflict, they remain one, among many, preventative strategies and mechanisms that are at the disposal of states. Yet, given the prevalence of sexual violence in war and, notwithstanding significant advances in the field of international criminal law, the number of perpetrators who have been prosecuted for rape by courts and tribunals remains woefully low.

In a bid to remedy the poor record of the ICC the current Prosecutor, Fatou Bensouda, has taken important strategic steps to surmount social, cultural and historical impediments and regularly reaffirms her commitment to addressing sexual and gender-based offences through her investigative and prosecutorial powers.  The conviction in 2016 of Jean-Pierre Bemba Gombo for rape as a war crime and crime against humanity was seen as a milestone for the Court, albeit a limited one given the scale of the problem in most, if not all, conflicts. For the survivors of the atrocities the decision represented a long-awaited acknowledgement by the law of what they had individually and collectively endured during a four month period in 2002-2003 when Bemba’s forces had been deployed to the Central African Republic (CAR).

The fact that Bemba was held responsible as a commander for failing to take all necessary and reasonable measures to prevent and punish the Movement for the Liberation of Congo (MLC) troops under his effective control for the sexual violence perpetrated against the civilian population was to recognise the locus of power and authority and the responsibilities that attach to positions of privilege. As the Military Commission in the Yamashita case noted over seven decades ago, “clearly assignment to command military troops is accompanied by broad authority and heavy responsibility… [W]here murder and rape and vicious, revengeful actions are widespread offences, and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable, for the lawless acts of his troops, depending upon their nature and the circumstances surrounding them.”

The decision in June 2018 by the Majority of the Appeals Chamber (3-2) to acquit Bemba has generated a significant amount of commentary among the legal community.  Concerns have rightly been expressed about the lack of clarity that comes with the release of multiple opinions while other criticisms have been directed at the standard of appellate review and the inter-related broader question as to the scope of judicial authority to depart from previous jurisprudence since it was only by doing so that the Majority was able to find that the conviction had exceeded the facts described in the charges, the first of the two grounds upon which Bemba was acquitted. The disturbing consequence of the Majority’s reasoning is that prosecutions of sexual violence crimes will be that much more difficult as elaborated by Susana SaCouto.

If preventing sexual violence in conflict is a priority of states, it is the second ground upon which Bemba was acquitted that demands further reflection: namely, that Bemba had not failed to take all necessary and reasonable measures to prevent and punish crimes committed by MLC troops under his effective control.  As with their judicial predecessors, each of the appellate judges reflected, albeit to different degrees and with varying levels of comfort, on the doctrine of command responsibility. Despite being re-formulated in multiple texts, finessed by courts and dissected by academics over many decades, the underlying principles of the doctrine first set out in Yamashita remain unchanged and have subsequently been incorporated into military manuals across the world. In other words, although international criminal law has elaborated on the scope and content of command responsibility (most notably on the element of mens rea) the doctrine is one that is firmly grounded in the logic of the law of armed conflict, operational effectiveness, military ethos and the value of reciprocity. Importantly it is a doctrine that recognises the unique structure, distribution of power and chain of command system upon which military institutions rest and to that extent functions to set the minimum baseline expected of all commanders to maintain rule compliance.

While the Trial Chamber found that, all things considered, the measures taken by Bemba had been “grossly inadequate”, the Majority disagreed. This opens up the question as to what specific measures a commander must take to satisfy their legal obligation to prevent the commission of sexual violence whether as a war crime, crime against humanity or genocide and to punish those who have engaged in such criminality.  Is the geographical distance of the commander from the site of the alleged offence (especially if perpetrated in a foreign country) relevant to assessing the reasonableness of the measure taken, as suggested by the Majority?  Should the commander’s actions be assessed against the gravity of the offences alleged or is the number of offences alleged determinate?  Is a commander entitled to apply “a cost/benefit analysis” when deciding the measures to take in cases of sexual violence? Where the offence constitutes rape, has a commander discharged his responsibility simply by authorising an investigation without specifically insisting that the investigation should include an enquiry into the allegations of sexual violence?

Legal arguments aside, Bemba’s acquittal is nothing short of a failure on the part of the international community towards the victims and survivors of the atrocities perpetrated by MLC troops.  What steps can be taken to ensure against similar failings in the future?  One option is for states to agree to a set of guidelines including concrete measures that all commanders would be expected to take where sexual violence is alleged.  A far more radical and survivor centric measure would be for states to de-link reparations from convictions in a more comprehensive manner than is currently the case.  After all, if there was one issue upon which all the judges, appellate and trial, agreed, it was that sexual violence offences were perpetrated against women, children and men during the conflict in the CAR.


About the author

Dr Louise ArimatsuDr Louise Arimatsu (@larimatsu10) is Distinguished Policy Fellow in the Centre for Women, Peace and Security, where she works on the AHRC project ‘A Feminist International Law of Peace and Security’ and the ERC project ‘Gendered Peace’.

 

 

 

A Feminist Approach to the International Law of Peace and Security

With a snapshot from the first working group on a feminist approach to peace, Keina Yoshida introduces the new Feminist International Law of Peace and Security project.

FILPS project working group, 14 September 2018

 

“Why isn’t the Security Council called the Peace Council?”

Di Otto

 

On 14 September 2018, a group of international legal scholars met to discuss a new research project being undertaken at the LSE Centre for Women, Peace and Security. This new project, ‘A Feminist International Law of Peace and Security‘, explores and addresses the conceptual ambiguities and normative indeterminacy that characterises the UN’s WPS agenda, with particular regard to the words – women, peace and security. The aim of the project is ‘to develop the theoretical foundations and normative content of an international law that can more effectively deliver on gender equality and sustainable peace’. Twenty years since the publication of the seminal text the Boundaries of International Law, the project is an opportunity to explore how far feminist approaches have come and how far they need to go to make good on international’s promise of peace and security. The project is funded by the Arts and Humanities Research Council (AHRC).

Contemporary international law (both its fabric and institutions) is founded on the promotion and maintenance of international peace and security. Yet, despite its progressive claims, there is no accepted legal definition of either peace or security in international law. In fact, both concepts are understood variably within different regimes of international law. This ambiguity also extends to the relationship between the concepts notwithstanding the repetitive references to ‘peace and security’ in the law’s language.

In reflecting on the notion of ‘peace’ we ask whether the lack of an international legal definition of peace functions to undermine the progressive peace project of international law. That said, in the context of the WPS Agenda, ‘peace’ is treated as an expansive concept grounded in law and politics that means more than just an ‘absence of violence’; it is a positive state ‘an inclusive political process, a commitment to human rights … and an attempt to deal with issues of justice’ (UN Global Study, 2015). This raises a fundamental question: from a feminist perspective, should legal ambiguity be embraced or rejected? Further, would a gendered rights-based approach resolve this problem?

As part of the working methodology, we are organising a number of workshops and working groups to discuss key concepts such as ‘peace’, ‘feminism’ and ‘gender’ as they relate to and are understood in international legal terms. The first group meeting, held in Manchester on 14 September 2018, resulted in a very fruitful discussion of both feminist methodologies and epistemologies. Participants discussed a list of questions including:

  • How useful is it to approach the condition of peace as a world “not without conflict but without violence”? (Reardon, 1993)
  • Would a feminist reading of international law provide a more fruitful avenue through which to secure a ‘sustainable peace’?
  • How might we to understand what constitutes ‘a feminist international law of peace’?
  • What do we mean by conflict? Where is the line between conflict and violence?
  • What do we mean by security?
  • Where does power come into it?
  • Where is power in any concept of peace?

Discussion began with the Declaration on the Right to Peace and its aftermath and how this interacts and intersects with the WPS agenda. Anti-militarism and women’s activism around peace and the environment also played a prominent role in discussions particularly in light of the UN Global Study’s findings. As Christine Chinkin remarked at the European Society of International Law (ESIL) plenary the day before, one of the threads identified by the former Special Rapporteur on Violence against Women, its Causes and Consequences, Radika Coomaswarmy in her report, was the emphasis by women’s groups from across the world on the importance of anti-militarism. Other topics of discussion during the meeting included the relationship of peace to justice, and poverty.

Theoretical approaches to the project also formed an integral part of the conversation. Given the rich development of feminist thought and gender theories within legal scholarship since the publication of Boundaries, the project will explore how feminisms and different theories inform the international law of peace and security. During the discussion one participant remarked that given the gendered nature of international law ‘a feminist peace has to do gender differently’. Another questioned and highlighted the humanist foundations of the international regime, particularly in light of material humanist feminist scholarship.

Finally, the participants considered the challenges of carrying out feminist research including methodological considerations when carrying out field work (bottom up approaches, researches in conflict/post-conflict territories) and alternative legal methodologies.

Participants in the FILPS project working group on a feminist approach to peace, 14 September 2018

Undoubtedly, there are many scholars, activists, artists, poets and others working on this very issue from different positions, locations, disciplines and perspectives. We welcome collaborations and conversations and hope this post is a starting point to an on-going dialogue on this topic. For further information on the project, forthcoming workshops and events, see the FILPS page in the Research section of the LSE WPS website. The first public event under this project is on the 13 December 2018 on ‘Women and Weapons’.

 


About the author

Dr Keina Yoshida (@intlawninja) is a Research Officer in the Centre for Women, Peace and Security. As part of the Feminist International Law of Peace and Security project Keina is researching the links between the environment, the Earth, the gendered causes and impacts of violence against women, and structural inequalities in the context of international legal conceptions of peace and security.

Kofi Annan’s legacy and the need for inclusive peace

On 2018 International Day of Peace, Ruby Weaver, Research Assistant on the Feminist International Law of Peace and Security project, considers the legacy of Kofi Annan. 

Kofi Annan speaking at LSE 4 October 2012 (c) LSE

“Most nations have monuments or memorials to war, bronze salutations to heroic battles, archways of triumph. But peace has no parade, no pantheon of victory.” Kofi Annan, Nobel Lecture, Oslo, Norway, 10 December 2001

Since his death in August 2018 Kofi Annan has been revered as a hero for peace. His achievements made headlines as the international community considered his far-reaching influence on international relations and peacemaking. Whilst acknowledging his contributions to global peace and security, it is important to ask critical questions, such as: who exactly did he make peace for? And what lessons can be gained from his successes and failures in the pursuit of creating a more inclusive peace?

Despite widespread praise, reviews of Annan’s tenure are simultaneously mixed. While some commentators critique his passivity, his lack of assertiveness and his internalisation of deeply flawed UN norms, others admire his morality, his position as the “conscience of humanity” and his ability to mediate among the biggest world powers. This commentary stems from the nearly inseparable linkage between Annan’s career and the concept of peace. He was head of UN Peacekeeping, the winner of a Nobel Peace Prize in 2001 and Secretary-General of the UN during ten of the most tumultuous years in international history. While many commentators have focused on his entanglement in power politics, far fewer have assessed his conceptualisation of peace, and his role in defining what peace and peacekeeping meant to the international community.

Annan’s time as the Head of UN Peacekeeping saw two of the worst peacekeeping failures in modern history. The 1994 Rwandan genocide and the 1995 Bosnian massacre both highlighted the failure of the international community’s ability to respond adequately. Many have argued that as a result of these failures, Annan’s approach to protection and humanitarianism shifted. In his 2000 report as Secretary-General, he argued that the sovereignty of nation states should not be prioritised over human rights and that humanitarian intervention was a necessary element in the international community’s responsibility to protect. This humanitarian and interventionist perspective shaped his approach to international relations and led to many commentators arguing that his was a unique approach to peace that represented a crucial shift in international politics. In 2006, Resolution 1674 cementing the Responsibility to Protect (R2P) doctrine was passed. This exemplifies both his interventionist and humanitarian approach, and also his understanding of the gendered dimensions of conflict. Whilst in line with the UN’s women, peace, and security agenda, which recognises the disproportionate and gendered impact of war on women, R2P ascribes a status of victimhood to women in conflict without acknowledging the crucial element of their participation in peace processes. He continued to support high-profile peacekeeping missions, such as in Sierra Leone and East Timor, despite fears of repeating past failures. After his term as UN Secretary-General, he was deployed as a mediator in the most complex of international power struggles and brutal conflicts, such as in Syria and the Rohingya Crisis in Myanmar. That said, the Responsibility to Protect has fallen short in the case of these modern crises.

Annan’s career was one of great power politics, yet his approach and rhetoric professed to put civilians and their rights at the centre. It is this juxtaposition that frames the questions; what did Annan consider to be ‘peace’? And whose ‘peace’ did he work for?

In his first term as Secretary General, the Security Council unanimously passed Resolution 1325, the first of eight resolutions constituting the Women, Peace and Security agenda. Commentators, such as Catherine Powell and Maiya Moncino, argue that the WPS agenda should be considered a success of Annan’s leadership. They argue that without buy-in from senior UN leadership, the resolution would not have passed, and its successful adoption can largely be attributed to Annan’s efforts. Indeed, in his 2002 study on Women, Peace and Security, Annan stated that, “[…] only if women play a full and equal part can we build the foundations for enduring peace — development, good governance, human rights and justice.” Whilst this rhetorical shift was significant, it seemed that both prior to 2000 and during the WPS era, however, Annan’s approach to peacemaking was starkly ‘ungendered’. For example, an independent report on the implementation of 1325 found that while Annan vociferously supported the WPS agenda and utilised gendered rhetoric regarding peacebuilding, both he and his successor failed to mobilise any significant resources to ensure its implementation.

His 2012 appointment as Special Rapporteur to Syria provides an opportunity to explore whether Annan began to truly integrate a WPS approach in his peacebuilding work, or whether his support of gender-mainstreaming and women’s participation in peace processes was limited to discourse rhetoric.

Annan’s six-point peace plan presented to the Syrian authorities in 2012 produced a temporary ceasefire agreement. It was clear, however, that the Assad government had little interest in pursuing a negotiated settlement, and that the international community was reluctant to provide the tangible support necessary to oversee the ceasefire or the political weight needed to incentivise parties to come to the table. The six-point plan seemed to be the pinnacle of his attempt at peace in Syria, yet it failed to mention gender or women, at all. Whilst it called for an “inclusive Syrian-led” political process, there was no integration of WPS language or approaches. The WPS agenda highlights the need to engage women at all levels of peace mediation, negotiation and implementation, suggesting that peace cannot be inclusive without the meaningful participation of women.

In fact, no deliberate and specific channel for women’s participation existed at the track one negotiation level for several years of the conflict. It wasn’t until Stefan De Mistura became the UN Special Envoy to Syria that a ‘Women’s Advisory Board’ was established in 2016. This Board remains limited in its purely ‘advisory’ capacity, but its establishment served to emphasise the lack of prior effort to include women in peacemaking and to take their roles seriously. Annan’s failure to acknowledge how integral women’s meaningful participation is to the durability and sustainability of peace in Syria highlights that he likely considered the WPS agenda as more of a rhetorical tool to be used in the political sphere, rather than a crucial element to long lasting peace.

The Syrian Women’s Political Movement was launched in October 2017

Annan’s legacy as a peacemaker lives on. His legacy also propels crucial questions with regards to an inclusive peace; one that takes gender into consideration beyond political rhetoric, and towards attaining peace for all. Contemporary conflicts have challenged our notions of peacemaking and peacekeeping; wars are protracted, complex, and inevitably tragic, requiring sustainable and innovative solutions. Annan’s shoes are difficult to fill, but his legacy reminds us that women’s meaningful participation in peacebuilding cannot merely be a ‘bolt-on’ or a rhetorical tool but must be a central part of any sustainable and inclusive peace process.

 

The Feminist International Law of Peace and Security (#LSEFILPS) project explores questions around the international legal conceptualisation of peace and aims to pave the way for a feminist international law of peace and security. The project is led by Professor Christine Chinkin in the Centre for Women, Peace and Security, and funded by the Arts and Humanities Research Council.


About the author

Ruby WeaverRuby Weaver (@RubyannWeaver) is a Research Assistant for the Feminist International Law of Peace and Security project and recently completed a MSc in Women, Peace and Security at LSE. Her research focuses on the UN’s peacebuilding and countering violent extremism agendas from a gendered perspective.

This post was co-edited by Farah AlHaddad and Christina Holland, Research Assistants on the Feminist International Law of Peace and Security project.

By balancing Sharia law and the new Sexual Offences Bill, Somalia is legislating for the 21st century

In advance of a LSE WPS public event with Her Excellency Deqa Yasin, Minister for Women and Human Rights Development, Antonia Mulvey reflects on the development of the Somalia Sexual Offences Bill

Eid Al-Fitr Celebrations in Somalia, UN Photo/Tobin Jones

On 30 May 2018, the Cabinet of the Federal Government of Somalia unanimously accepted a Sexual Offences Bill. This landmark Bill marks the first time that a country adhering to Sharia Law has passed such progressive legislation. The fact that Somalia has taken this step whilst facing extremist terrorism and an ongoing food crises is all the more remarkable.

Sexual violence in Somalia is widespread, pervasive and carried out without almost total impunity. In 2012, the UN Special Representative of the Secretary General on Conflict-Related Sexual Violence, Zainab Bangura, stated that ‘that 70% of the gender-based violence taking place in IDP Camps is actually done by men in armed uniform.” A global survey released in 2011 rated Somalia as one of the top five worst places to be a woman. In 2013, this was demonstrated when two women were raped, then arrested for reporting the crime to a journalist. The perpetrators were not arrested.

In response to the dire situation facing women, girls and survivors of sexual violence, the Ministry of Women and Human Rights Development and Legal Action Worldwide (LAW) commenced drafting the Somali Sexual Offences Bill. We met with a range of key government officials and civil society to gather broad-based support for the Bill. However, in 2013, it was not widely accepted by the Somali political elite, the African Union Mission in Somalia (AMISOM) and even members of the international community that sexual violence was a serious problem that needed to be prioritised. To quote one diplomat at the time, “Human rights does not even come in our top ten concerns.”

However, in 2014 the tide started to turn. Human Rights Watch released two reports on rape in Somalia, and LAW released its own report on increasing access to justice for sexual violence. Key civil society leaders, including Deqa Yasin, who would subsequently become the current Minister of Women and Human Rights Development, advocated in Somalia and abroad for the Bill. Following a high-level panel chaired by LAW in 2015, the Ambassadors to the African Union and United Nations in Somalia issued the first joint public statement admitting sexual violence by peacekeepers and acknowledging that all efforts must be undertaken to address it.

What needed to change?

The criminal framework around sexual violence in Somalia is set out in the 1962 Penal Code, which is based on Italian colonial-era laws. It contains out-dated, piecemeal provisions that fail to adequately define sexual violence for a contemporary Somali context or provide sufficient protections to the survivors of such violence. Those reporting sexual violence are more likely to be arrested for the crime of ‘insult’ than the perpetrators of sexual violence crimes.

In 2015, the first comprehensive Sexual Offences Bill was produced. It was the result of two years of consultation and inclusive dialogue with a wide range of key stakeholders. The Bill was presented to the Somali Cabinet on 31 December 2015. The Bill remained ‘in limbo’ before Cabinet for the following two years.

Key figures in government worked behind the scenes to push forward the Bill. Minister Deqa Yasin worked tirelessly to have the Bill adopted by the Cabinet and she is not the only one. When Hassan Khaire, the Prime Minister of Somalia, addressed the UN General Assembly in New York in May 2017, the Bill was the only piece of legislation he mentioned by name as being a government priority. Last month, those efforts and that commitment paid off: on 30 May 2018, the Somali Cabinet unanimously adopted the Bill. But we are not there yet. The Bill must now be passed in the Lower House of the Parliament.

How will the Bill help survivors of sexual violence?

The Bill criminalises a wide range of sexual offences and set out clear duties for police, investigators and prosecutors. It sets out a number of guarantees for survivors including the right to free medical care, to privacy in court and to support in securing housing. The compliance of the Bill with Sharia Law has been confirmed on multiple occasions. LAW asked President Van Joenson of the International Criminal Tribunal of Rwanda to assist with reviewing the Bill. He has called it “the most comprehensive Bill on sexual crimes [he had] seen anywhere.”

Efforts to address sexual violence and gender issues in Somalia remain difficult and at times divisive. In 2016, the Ministry of Women and Human Rights Development released a national gender policy that called for, amongst other things, the implementation of a quota system in the upcoming elections. A group of Islamic sheikhs issued a fatwa on the policy stating that it was permissible to kill anyone who had been involved in its development. It was a stark reminder that work that challenges the strict gender norms, which prevail in Somali society, can be dangerous.

Locally and internationally, there is increasing recognition of the importance of the Bill. However greater support is needed to ensure the Bill is passed and effectively enforced. The international community should give greater support. The UK, which has emphasised its commitment to ending conflict-related sexual violence through it establishment of the Preventing Sexual Violence Initiative – should recognise the importance of the Bill and its place in the wider peace and security initiatives within the region, including the Women, Peace and Security Agenda. International support is urgently needed for the range of multi-disciplinary service providers, justice actors and institutions necessary for the effective implementation of the Bill.

The protection of Somalis from widespread sexual violence committed with impunity is not purely a “women’s issue.” It is a peace and security issue. It is a state-building issue. Somalia is at a moment in time where momentum is high, and where the Sexual Offences Bill seems poised to pass. Such opportunities are rare. We cannot let it pass us by.

On Tuesday 19 June 2018 6.30pm, marking International Day for the Elimination of Conflict- Related Sexual Violence, the Somali Minister for Women and Human Rights Development, Her Excellency Minister Deqa Yasin Hagi Yusuf, and Antonia Mulvey will reflect on the development of the Bill at a public event at LSE. The event is free to attend and open to all.


 About the author

Antonia Mulvey (@AntoniaMulvey) is the Founder and Executive Director of Legal Action Worldwide (LAW) and Visiting Fellow in the Centre for Women, Peace and Security. She is a British lawyer with 20 years of experience in international, human rights, refugee and criminal law. Mulvey has established access to justice programmes for the UN and INGOs in South Asia, Africa and the Middle East. Her experience ranges from advising governments on judicial and legislative reform, to founding of the first Women Lawyers Association in Somalia and establishing the first law faculty in Puntland, Somalia.

UK in ‘grave and systematic’ violation of rights due to restrictive abortion laws in Northern Ireland

Following a critical UN report on access to abortion in Northern Ireland, Catherine O’Rourke explores the potential for synergies between the UN Committee on the Elimination of Discrimination against Women and the Women, Peace and Security architecture in advancing women’s rights in conflict.

On February 23, 2018, the UN Committee on the Elimination of Discrimination Against Women (the CEDAW Committee) made public its inquiry report into access to abortion in Northern Ireland. The Committee concluded definitively that the  limitations on access to abortion in Northern Ireland constitute both ‘grave and systematic’ violations of the rights guaranteed under the CEDAW Convention. The UK government has to date failed to include post-conflict Northern Ireland within its Women, Peace and Security (WPS) activities. Consequently, this locally important determination by the CEDAW Committee to Northern Ireland also illustrates the globally important potential of improved synergies between the WPS framework and CEDAW. In their recent LSE WPS working paper,  Pierson and Thompson identify a failure to advance abortion and reproductive rights in the WPS resolutions and implementing National Action Plans. CEDAW and the Committee’s General Recommendation number 30 on the rights of women in conflict prevention, conflict and post-conflict situations (GR30), by contrast, offer a comprehensive framework for the reproductive rights of women in conflict-affected and post-conflict settings.

 

Protest in London calling for reform of abortion laws in the Republic of Ireland and Northern Ireland.   London Irish Abortion Rights Campaign

The pursuit of synergies between CEDAW and WPS has gathered pace in recent years, most notably since the Committee’s adoption of GR30. In particular, the added value of CEDAW in bringing a clear mechanism of state accountability to women’s rights in conflict, combined with the women’s rights focus of the Convention and monitoring Committee, offers clear promise. This blog post will focus on the recent determination by the CEDAW Committee that restrictive access to abortion in Northern Ireland constitutes ‘grave and systematic’ violation of rights guaranteed under CEDAW. The post will use the Northern Ireland experience with the inquiry procedure to illustrate some of the potential benefits of improved synergies between WPS and CEDAW in order to advance women’s rights. (For those who are interested, I have addressed the detail of the Committee’s findings and recommendations more fully here).

The potential utility of the inquiry procedure to advocates of women’s rights in conflict lies in the opportunity it provides to local civil society to articulate and evidence the nature and extent of the CEDAW violations and to make recommendations for appropriate ways to redress the violation. The inquiry report on Northern Ireland is only the 4th time that the Committee has found a state party to be in ‘grave or systematic’ violation of the Convention under the inquiry procedure. Importantly, the Committee cannot activate the inquiry procedure on its own initiative; it can do so only in response to a request to conduct an inquiry. The Northern Ireland experience was that the collaborative civil society working and process of compiling the request for an inquiry, as well as the submission document itself, proved to be critically important with several unanticipated benefits. Moreover, in the submission, there was an opportunity to provide contextual information about how the CEDAW violations resulting from restrictive access to abortion are closely to linked to the conflict legacy, such as high levels of poverty (paragraph 3.23), widespread poor mental health (3.26), limited progress on women’s rights under the institutions established by the Belfast/Good Friday peace agreement (paragraph 3.22), and the enduring broad discretion of schools in determining relationship and sexual education (paragraph 4.41). Thus, the inquiry procedure provided a unique opportunity for local articulation of the women’s human rights situation, its relationship to conflict and post-conflict dynamics, in addition to locally-crafted recommendations to redress the situation. This local articulation was ultimately vindicated and endorsed by the CEDAW Committee. This is an opportunity with little apparent equivalent within the WPS framework.

A further benefit of the inquiry procedure to advocates for women’s rights in conflict derives from the Committee’s attention to potential adverse implications of devolved and decentralised governance arrangements on overall compliance with the Convention. A feature common to the four state parties scrutinized to date through the inquiry procedure is the operation of devolved or decentralised administrations. The Committee has emphasised throughout its inquiry reports that state parties cannot hide behind decentralised systems in order to negate state responsibility for grave or systematic violations. In the case of Northern Ireland, the Committee determined:

Availability of abortion in other parts of the State party does not absolve it of its responsibility under the Convention to ensure accessibility in NI. (para 82)

This feature of the inquiry reports carries particular significance for distribution of political power after a peace agreement. As the PA-X Gender Peace Agreement Database evidences, innovative arrangements for power-sharing and decentralisation of power are a popular conflict resolution measure and are thus common in peace agreements. Such provision is typically made without much consideration of the potential adverse implications for women’s rights. The CEDAW Committee’s determined rejection of state party efforts to abdicate responsibility for non-compliance is consistent with its articulations elsewhere of state responsibilities under the Convention, most notably General Recommendation 28. Moreover, the Committee’s approach provides a practical and unambiguous response to one of the most common state party justifications for violations of women’s human rights.

There is emergent evidence that the Committee is utilizing the inquiry procedure to redress areas of repeated non-compliance with CEDAW by state parties, which offers a further clear benefit of the inquiry procedure for women’s rights in conflict. State parties to CEDAW report periodically to the Committee on their performance under each of the articles of the Convention. Out of this process, the Committee makes a large number of recommendations in order to improve state compliance with the Convention and identifies two recommendations for priority ‘follow-up’ by the state party. In Northern Ireland, (as in Canada), the inquiry is procedurally important because its activation was directly connected to the state’s failure to implement the Committee’s recommendations in earlier Concluding Observations. In Northern Ireland, after repeated recommendations to the UK since 1999 calling for action on access to abortion, the Committee’s Concluding Observations in 2013 prioritised recommendations on abortion in Northern Ireland for priority ‘follow-up’. In November 2014, after determining that the UK had failed to implement its priority ‘follow-up’ recommendations, the Committee opted to proceed with the inquiry.

A relationship between the implementation of ‘follow-up’ recommendations and the Committee’s determination to proceed with an inquiry offers particular relevance to women’s rights in conflict-affected and post-conflict settings. As my previous research (with Aisling Swaine) has found, the CEDAW Committee routinely prioritises recommendations to remedy conflict-related CEDAW violations for ‘follow-up’. Further, evidence of a relationship between non-compliance with the Committee’s previous recommendations to the state party and the determination to proceed with an inquiry speaks in potentially important ways to the need to provide practical responses to CEDAW’s under-enforcement. If non-implementation of the Committee’s recommendations that are identified for priority ‘follow-up’ carries the credible risk of the Committee activating the inquiry procedure, this development introduces consequences for the state party engaging in persistent non-compliance with the Committee’s recommendations. It also stands to create a useful and constructive relationship between state periodic examinations, shadow reporting, and requests for an inquiry.


About the author

Dr Catherine O'RourkeDr Catherine O’Rourke @DrCORourke is Senior Lecturer in Human Rights and International Law at Ulster University Transitional Justice Institute and School of Law. She also directs the Gender Theme of the DFID-funded Political Settlements Research Programme. Catherine co-authored the submission requesting the CEDAW Committee to conduct an inquiry into access to abortion in Northern Ireland with Jude Cross (Alliance for Choice), Ann Marie Gray (NIWEP) and the Audrey Simpson (FPANI).

We are entitled to gender equality – already

On International Women’s Day, and in the context of new movements and campaigns to end sexist abuse and discrimination, Lisa Gormley reminds us that the law is already on side – that gender equality is a legal right.

Feminism is the word of our times. Feminists have worked with international human rights law since the 1990s, as one tool among many to advocate for gender equality, however, there has been no time when the rights of women and girls have dominated headlines in the same manner or extent as they have done so over the last 12 months. Violations of women’s human rights are being exposed, scrutinised and condemned on a daily basis by the media and public alike. In the UK alone the issues covered are wide-ranging: the decision to release a serial rapist from prison; complaints about the gender pay gap in a national supermarket chain and in the national, publicly-funded broadcasting corporation; sexual assault and harassment of women packaged as entertainment for a charity fundraising event; sexual violence and harassment in the film industry, sporting world, the charitable and humanitarian sector and in the very establishments charged with law-making; the list goes on. What is striking is that gender-based violence, harassment and discrimination that have been raised by women’s rights advocates for years are now being recognized as scandalous and wrong in public discourse. In a large part this is because of social media. The ability to speak publicly about individual experiences, to reflect on the causes and consequences of those experiences, to research and share experiences, to organize and to advocate for change – all are in the hands of many, not restricted by powerful gatekeepers.

Liz Kelly said: “Feminism is like a tapestry; every woman brings her own thread.” Women and girls are weaving and stitching this tapestry at a huge rate – making conversations and change happen across the internet, in political action and individual conversations.

As an international lawyer specialising in human rights, I would like to add my thread to the tapestry – a thread which spells out the words “We are legally entitled to equality already.”

The United Nations Charter, modern international law’s founding treaty, identifies the role of the UN to “promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion” (article 55). The Charter requires States to cooperate to achieve the implementation in practice of universal human rights, including equality between men and women. The detail of what counts as “universal human rights” is set out in the Universal Declaration on Human Rights, and all the human rights treaties that come afterwards.

Human rights are women’s human rights. LSE WPS Tackling Violence Against Women resource site

What does using international human rights law mean for our advocacy for gender equality? It means that we can make our demands from a position of legal entitlement and rule of law. Women and girls are not asking for favours or ‘special’ treatment but for their rights – and failure to accept this is simply a further instance of patriarchy denying our legal entitlement. The justice we seek is not just our conception of justice, and definitely not a form of wishful thinking, it is our legal entitlement. Of particular relevance is the Convention on the Elimination of All Forms of Discrimination against Women – CEDAW. This is a short treaty – its substance is set out in 16 substantive articles recognising in detail women’s right to equality in all spheres of life, including equality in political participation, in the family and community, in work, education, and health, among others. Over time the content and meaning of its provisions have been clarified through the monitoring processes and individual cases brought to the CEDAW Committee.

Women’s human rights law now covers a vast area of detail, but even looking at the basic foundational texts of CEDAW we see that equality between men and women in the right to work means, not just access to equal pay but equality of treatment in the evaluation of the quality of work the right to equality of opportunities and the same social security and pension (see Article 11 (b),(d) & (e)). Obviously, the right to work for women means that discrimination on the grounds of pregnancy or maternity should not be permitted; this includes the right not to be dismissed or sanctioned for pregnancy or for marital status but also that women are given same pay and benefits on return from maternity leave (see Article 11(2) & 11 (2)(b)). CEDAW also requires States to encourage the provision of work/life balance for both parents (Article 12(2)(c)).

As well as these specific provisions, there’s a back-stop article – Article 3 of CEDAW – requiring States to take all appropriate measures to ensure “the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.”

And this is just CEDAW. Since the 1990s, feminist human rights defenders, lawyers, scholars and activists have brought understanding of women’s and girls’ experiences to other human rights treaties, notably so that violence against women can be recognized as a form of torture or ill-treatment. These are clear– and legally binding – commitments on States.

From global to local

The international legal system contains a commitment to gender equality, but women and girls who have faced violence first seek help through their local, national, legal systems. So the #TimesUp initiative, funding and supporting women’s legal claims, is absolutely necessary. But there is potential for that justice-seeking to lead to secondary victimisation, through the criminal justice process which portray women as liars, or blame them for the crimes committed against them. International human rights law indicates comprehensive and practical solutions to ensure fair trials and due process both for victims of crimes and those accused of crimes. Procedures in international criminal law – notably, the tribunals for former Yugoslavia and Rwanda, and the International Criminal Court – were developed with the survivors of conflict-related sexual violence in mind, so that these victims and witnesses could give their testimony in safety and dignity: for example, to exclude questions and comments on the previous sexual history of the victim from the courtroom, and to provide effective victim and witness protection. These initiatives became part of human rights standards relevant to the investigation and prosecution all crimes of violence against women, whether those crimes take place during conflict, post-conflict or peacetime.

States also are obliged to put in place a dynamic and adequately resourced plan to ensure gender equality in all spheres of life. Again, international human rights law contains the starting point for solutions, including education of children and young people for equality, as is set out in CEDAW. Education has to include comprehensive sexuality education – UN guidelines indicate how this can be designed so that young people are equipped to make informed decisions about their sexual lives in ways that protect their health and well-being.

We may be in a time of true and durable social change: those who are concerned about violence and discrimination against women and girls need to insist and persist in holding governments to account for their existing obligations – we can start preparing now for the CEDAW Committee’s review of the UK government’s compliance with CEDAW, which will take place in February 2019. We’re entitled to gender equality already.


About the author

Lisa Gormley is Research Officer in the Centre for Women, Peace and Security. A lawyer by training, Lisa has nearly two decades of experience campaigning, drafting and advising at all levels on women’s human rights and gender equality. At LSE Lisa leads the Centre’s work with the UN Special Rapporteur on violence against women, its causes and consequences.

CEDAW General Recommendation 35 draws an explicit link between gender, discrimination and conflict-related violence against women

Dr Aisling Swaine highlights the importance of the UN CEDAW Committee’s new General Recommendation with respect to conflict-related violence against women.

As I note in my forthcoming book, in the wars of today, the catalogue of gendered violence is still being compiled. Despite knowing more than we ever have about women’s experiences of conflict, there remain gaps in recognition of the different ways that women will experience violence and of the multiple sites and sources of gender violence within a conflict, enacted by a spectrum of armed and non-armed actors. Globally, 35% of women have experienced forms of gendered violence in their lives. This is the normative foundation to gendered violence upon which armed conflict erupts. Yet, there also still remain gaps in recognition of how the everyday violence that women experience before conflict relates to the ways that they experience violence during conflict.

This is why the recent adoption of General Recommendation No 35 on gender-based violence against women, updating general recommendation No 19 (GR 35, 2017) by the Committee on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is so critical: it draws an explicit link between gender, discrimination and conflict-related violence against women (CRVAW).  GR 35 frames CRVAW as rooted in gender inequalities, provides for the capture of a broad range of gendered harms by multiple actors, and emphasises the connectedness of gendered violence across conflict and non-conflict settings.

by Sanjitbakshi [CC BY 2.0] via flickr

The Committee, a panel of independent experts that monitors implementation of CEDAW, adopts ‘General Recommendations’ to provide guidance to states parties on addressing specific thematic areas of women’s rights. In this case, GR 35, together with General Recommendation No 30 on women in conflict prevention, conflict and post-conflict situations (GR 30, 2013), provide clarity on obligations under CEDAW in relation to conflict and peacebuilding settings. The human rights framing offered to the issue of CRVAW through GR 35, which is distinctive to the women, peace and security resolutions, is important for many reasons. I share two general observations in this regard:

1.     Recognition of the connections in violence across peace and conflict

Violence in women’s homes, online, in work places and institutions, in shared public spaces and in conflict settings are distinctive in their form, locale and agent. Yet in their intent, function and nature, their connectedness in the gendered social positioning of women is also evident. To respond effectively, it is imperative that neither violence against women during conflict, nor in peacetime, are approached without reference to the other.

Boundaries have however evolved between conflict and peacetime violence against women. These boundaries have materialised in multiple ways. For example, in the way that international legal regimes treat CRVAW as distinctive to that which occurs outside of conflict; and in the ways that global political alarm is sounded when mass and strategic rape occurs in an armed conflict, yet little similar alarm is raised about the enduring high rates of endemic violence that women experience globally every day. These boundaries have proved problematic, not least in furthering strengthened approaches to preventing and addressing CRVAW.

Distinctive from other international legal instruments, including the women, peace and security resolutions, GR 35 states that gendered violence “manifests in a continuum of multiple, interrelated and recurring forms, in a range of settings, from private to public, including technology-mediated settings and in the contemporary globalized world it transcends national boundaries” (para 6). GR 35 offers a comprehensive approach, listing the range of violence women may experience without dividing them into “conflict” or “non-conflict” harms. Conflict is noted as one of many factors that exacerbate gendered harms. GR 35 effectively sets out the connectedness of violence against women across peacetime and conflict settings, establishing a clear basis for human rights-based approaches to tackling the pervasiveness of violence across women’s lives.

2.     Promoting an understanding of CRVAW as deriving from its social and gendered context

The growing global legal and policy significance attributed to CRVAW has largely been driven by the Security Council’s focus on “sexual violence, when used or commissioned as a tactic of war.” While a focus on strategic rape is very much needed, the exceptionalism attributed to this specific act of violence, the increasing securitisation of CRVAW, and the growing focus on the armed group as perpetrator has also begun to occlude decades of feminist work that made visible the social and gendered basis of all forms of violence against women, including CRVAW.

Importantly, GR 35 takes an approach that brings a focus back to gender norms as causal in CRVAW. GR 35 clearly states that violence against women is “gender-based,” deriving from gender norms and inequalities, regardless of whether within or outside of conflict. By not establishing dichotomies between conflict and non-conflict violence, GR 35 underlines that gender norms in context offer an explanation of causality and meaning to CRVAW. Its statement that “the understanding of this violence as a social – rather than an individual- problem, requiring comprehensive responses, beyond specific events, individual perpetrators and victims/survivors.” (para 9) is particularly significant. It emphasises that this is a violence that derives its basis and meaning from the social context in which it is based. GR 35 recommends that tackling violence requires going beyond specific actors to also “address[ing] the underlying causes of gender-based violence against women, including patriarchal attitudes and stereotypes” (para 34). Importantly, it gives responsibility to a range of state, non-state and private sector actors to tackle gender inequalities and violence across various locales, “including extraterritorial military action of States” (para 20).

Further, adopted on the 25th anniversary of General Recommendation No 19 (GR 19, 1992), GR 35 builds on GR 19’s role as a “catalyst” for the evolution of state practice that addresses violence against women as a form of discrimination. GR 35 recognises that “women experience varying and intersecting forms of discrimination, which have an aggravating negative impact, [and] gender-based violence may affect some women to different degrees, or in different ways, so appropriate legal and policy responses are needed” (para 12).  CEDAW’s human rights framing is imperative in addressing the layers of discrimination faced by differing demographics of women, a gap in approaches to addressing CRVAW that is evident in some approaches taken to the WPS agenda.

by ILaw TH [CC BY-NC-SA 2.0] via flickr

In an era where there is growing contestation of the need for a focus on gender inequalities as the basis for women’s experiences of violence, and the increasing securitisation of women’s experiences of harm during warfare, GR 35 makes bold and clear statements: violence against women, whether within or outside of conflict, is rooted in and sustains women’s subordinate positioning and is a critical obstacle to the achievement of substantive equality and the fulfillment of women’s rights.

The focus of GR 35 is on understanding the pervasiveness of violence against women as a gender-based harm, its presence across women’s life cycles and its manifestation across public and private spaces, and that approaches to prevention and response require grounding in tackling discrimination.

While specific forms of CRVAW require specific attention, understanding and approaches, GR 35 sets out a basis for addressing this issue in respect to the ways that women experience harm outside of conflict – as rooted in gender inequalities. GR 35 provides for comprehensive approaches to CRVAW that are grounded in and strengthened by the human rights obligations required of state and non-state actors.

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About the author

Dr Aisling Swaine is Assistant Professor of Gender and Security at the Department of Gender Studies and teaches on the MSc in Women, Peace and Security. Her research interests include conflict-related violence against women, humanitarianism, transitional justice, peacebuilding and institutional strategies towards gender equality. Her book, Conflict-Related Violence Against Women: Transforming Transition will be published by Cambridge University Press in November 2017.