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,
