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.
