Gender persecution is "aggression against and exploitation of women, because [they] are women, systemically and systematically." Even though women can be abused similarly to the ways in which men are abused, women are also violated in specific ways in which men are not. Notably, if men are violated in such ways, they become the exception to the rule.
Many of these "sex-specific violations are sexual and reproductive" including rape, sexual murder, battery, 'honor killings,' suttee, dowry burnings, Female Genital Mutilation (FGM), prostitution, forced abortion, sterilization and motherhood and sexual violence of any kind. A 1989 UN report declares that the "risk of violence and violation within the household is one thing women, irrespective of their social position, creed, color or culture, share in common."
So this begs the question, how come the international legal order is not predicated on the need to address such crimes even though many are expressly prohibited in international law and all of them within armed conflicts? Why is the presence of this pattern of destruction of women, as women, a reality, but absent in international law?
It's a Man's World:
Perhaps some of the answers lie in the fact that violations of men are better understood within the dynamic of human rights violations, as such ideas were based upon the experience of men. Law was created by men, whose perceptions were translated into ideas that were analogous with the male orientated experience. In turn, this experience dictated national and international conceptions of the human rights dynamic.
Domestically, the state is male, in that it chose to perpetuate the pre-state civil society distribution of power and resources, whereby women were dominated by men. This dichotomy was accepted as normal, neutral and good and characterized as a state of equality.
However, these state paradigms are not neutral at all. They are a self-fulfilling prophecy in relation to men as a group. These men did not provide for those who did not have such rights, like women. This was not even contemplated. The fact that they denied rights to women, for example the right to vote, is not in their interest to acknowledge. This was the beginning of the manifestation of gender blinded law.
In reality, domestic law rarely acknowledges that women are violated in these ways. For example, 33 of 50 U.S. states regard spousal rape as a lesser crime with the perpetrator charged with related crimes such as assault, battery or spousal abuse. In some countries, women are even criminalized for the behavior perpetrated against them. In Afghanistan, Saudi Arabia and Iran, if a married woman is raped, she will often be charged with adultery and the penalty for such a crime can be death.
As Catharine MacKinnon suggests "gender is an inequality of power, a social status based on who is permitted to do what to whom." Humankind maintains a legal way of thinking about equality which was created by Aristotle: legal equality is to treat similarly situated people alike. Therefore, 'equality' becomes the right to be treated like the white male given that white man's culture is the dominant culture.
History dictates the subordination of women to men and thus women's enforced inequality is a reality of which is mirrored in domestic and international law. "When men sit in rooms, being states, they are largely being men."
Throughout the world women have had, and still have, so little voice and influence in public debate and within their governments.
Moreover, women are routinely violated every day, in every country, in times of war and peace. Even though atrocities like rape and sexual murder are officially illegal, these practices are commonly permitted under domestic and international law. They are permissible and understood as an "excess of passion in peace," or the "spoils of victory in war," or as the "liberties . . . of their perpetrators."
In 1948 the Universal Declaration of Human Rights defined what being human is and the rights associated with being a human. It has been 63 years since its inception. Yet, within the human rights paradigm, what is perpetrated against women is viewed as either "too specific to women to be seen as human or too generic to human beings to be seen as about women."
The State vs. Women:
In terms of men's private acts against women, a legal exception exists in wartime. Atrocities committed by soldiers against civilians are always, in essence, state acts. However, "men do in war what they do in peace." In this way, the lack of acknowledgement and action that defines peacetime continues in war when it comes to the treatment of women, regardless of international humanitarian law.
The parties to the conflict and the atrocities perpetrated are covered by international humanitarian law. Yet, as we can see unfolding in Darfur and the Congo, rarely are international instruments, invoked to prevent or stop the atrocities or hold the perpetrators accountable.
The more a conflict can be defined as internal, as domestic, as social, the "more feminized the victims become no matter the gender," thus reducing the likelihood that international human rights will be established as being violated, irrespective of the reality of that war.
It must be understood that this is not because women's human rights have not been violated, it is because the violations of women have been obscured.
This shroud occurs in two distinct ways. Firstly, when women are violated like men, the abuse is not characterized as violations of women's human rights. For example, when women, with men, are murdered and buried in mass graves, beaten and tortured, these women are defined in history as part of a group, as Colombian (nationality) or Jewish (religion). The specific crimes that they as women faced, are lost in the identity of a more readily distinguishable group.
Secondly, in peacetime, contained by daily hostilities, women are raped and assaulted by partners, family and friends. However, these atrocities are not distinguished as human rights violations, their victims become the "desaparecidos of everyday life," and what is done to them "smells of sex."
Thus when a husband abuses his wife in her home, humanity is not seen to be violated.
Link Between Gender Based Crimes and Human Rights Law:
No international instrument expressly prohibits gender-based crimes. There is no enumerated ground in any international convention that includes 'based on sex or gender' as an element.
An example of this is the Refugee Convention, which fails to reference gender as a ground for persecution. Article 1A(2) explicitly marks "race, religion, nationality, membership to a particular social group or political opinion" as reasons for persecution. Therefore, a woman cannot receive surrogate protection from another country on the basis that she is being persecuted because she is a woman.
There are only rare references to sex or gender in international humanitarian law or to any crimes that include sex as an element. Crimes against humanity, which can often be gendered, for example rape, sexual slavery, enforced prostitution and forced pregnancy, are not a component of treaty law, they are characterized as international customary law. Hence there is no duty to prevent such atrocities and very little impetus for one state to interfere in another's internal affairs.
However, it must be noted that the Rome Statute of the International Criminal Court (ICC) changed this. In article 7(1)(h) the ICC defined persecution on the basis of gender as a crime against humanity, while in 7(1)(g) "rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity" are considered crimes against humanity when "committed as part of a widespread or systematic attack directed against any civilian population."
Furthermore, while many international crimes are based on sex, for example, rape in war and trafficking in women, international law has a tendency to "suppress their gendered element." There is no international crime that acknowledges the "destruction of women as women, as a group or as members of the group."
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) classifies such discrimination against women in "largely gender-neutral and referential terms." CEDAW guarantees the enjoyment of rights "on a basis of equality of men and women."
However, this has been construed non-substantively and claims by individuals or groups, claims against governments who remain inactive, and claims against private parties, have been regarded as impermissible.
Nevertheless, the CEDAW committee has finally recognized violence against women as a type of sex discrimination, thus making states accountable for 'private acts' if they fail to prevent, investigate or punish discriminatory acts of violence. But this is impossible to enforce.
While Art. 3 and 26 of the International Covenant on Civil and Political Rights (ICCPR), guarantees sex equality, only the Optional Protocol allows complaints by individuals coupled with state parties. Nonetheless, only those states that have expressly signed and accepted this Optional Protocol can enable individuals or groups of that state to report breaches of the Convention.
Many states who are signatories to the ICCPR have not signed onto the Optional Protocol. For example, the United States has not signed or ratified the protocol and only after the war did the former Yugoslavian states separately sign on. The ICCPR cannot be interpreted retrospectively, thus successfully denying victims of the war in the former Yugoslavia from reporting past atrocities.
Furthermore, the International Court of the Former Yugoslavia (ICTY) has inherited the present construction of humanitarian crimes in its founding statute, which seeks to diminish women's harm and has yet to expressly distinguish gender based crimes.
In Art. 5(g) of the ICTY statute, rape is only established as a crime against humanity, not as a tool of genocide. Like other domestic and international forums, the ICTY is hindered by "legally institutionalized sex inequality," is easily manipulated by the historical denial of sexual and reproductive harm to women, and is obligated to grant institutional deference to states.
Yet again, state sovereignty is used as a tool by the international legal order to ensure that the ICTY does not effectively address sexual and reproductive atrocities committed in the former Yugoslavia and does not provide justice for those who are left without effective recourse for violations of their human rights.
Hence there is only a limited practical and bona fide link between the types of sexual and reproductive atrocities committed against women, as women, and the international human rights law available to such victims to hold the perpetrators accountable or to seek surrogate protection.
It is glaringly obvious that if a society does not grant you rights, so that a state does not have to even deny them to prevent you from possessing them, then the fact that they are somewhat expressly guaranteed in international law, is useless.
The law must liberate itself from this "essentialist circularity." One way of achieving this might be to empower women to confront the state committing such human rights violations against them, through international and domestic forums coupled with the ability to directly challenge men in society who harm them.
It must be recognized in law that the violation of women sexually and reproductively is a "form of unequal treatment." The links between marriage, battery, sexual harassment, rape, prostitution and sexual humiliation in the home, at work, in pornography, in brothels and in the streets, must be made in order to fully grasp the unequal treatment of women by society and thus the law.
Cultural practices like aborting female fetuses, female infanticide and the deprivation of nutrition to girls and women, which guarantees that millions of girls are never even born or mature to become second class citizens, needs to be incorporated into the human rights discourse and instruments.
Further, rape in genocide must be understood to be what Andrea Dworkin coined as "gynocide;" the destruction of women as women, as a group or as members of the group.
Catharine MacKinnon urges that grounds like ethnicity and sex be joined so that crimes against humanity like suttee, FGM, honor killings and rape perpetrated in rape/death camps can be defined as what they really are: "destructive acts against women "in part" on ethnic grounds combined with sex."
Perhaps then, women will be granted legal avenues for prevention, recourse to and accountability for reproductive and sexual crimes committed against them. Perhaps then, when a woman is harmed reproductively or sexually, in war or in peace, humanity will be understood to have been violated.