Are women's rights, human rights?

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.