Sex and International Tribunals. Chiseche Salome Mibenge

issues such as high incidence of domestic violence or early marriage within marginalized minority groups or cultures are overlooked because the focus of the General Comments is fixed on the position of vulnerable groups vis-à-vis oppressive state policy. Gender discrimination emanating from within the group is studiously avoided in the human rights narrative of second tier rights in an effort to avoid further stigmatizing such groups as the Mormons in North America, the Roma in Europe, and aboriginal peoples in the Pacific region. This omission inadvertently mirrors the omission of first tier rights to subject the family and other private institutions from any serious scrutiny of institutionalized violations against women and girls, particularly those arising from custom and religion.

      The second tier instruments also continue to evade issues of sexual autonomy, thus leaving the enjoyment of this freedom in the custody of matriarchs and patriarchs in the family and the community. LGBT communities are well aware that their status as subaltern sexual minorities combined with race, color, descent, nationality, or ethnic features can greatly magnify hostility and even violent reprisals from their own ethnic but heterosexual community as well as from the dominant heterosexual community. This omission places the reality of discrimination on the grounds of race and sexual orientation out of sight and reach of human rights protections.

       Third Tier

      The distinguishing feature of third tier human rights instruments is that they are focused foremost on gender. Gender is not an afterthought but the core element shaping discriminatory practices against women. Third tier instruments view women’s rights away from the mirror reflection that is a man (formal equality) or the uniform representation of a woman as Everywoman (single category axis). I focus in particular on the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (2003) (Maputo Protocol);¹⁵ CEDAW General Recommendation 12 (1989) on violence against women, Recommendation 14 (1990) on female circumcision, and Recommendation 19 (1992) on violence against women; the CERD General Comment 25 (2000) on gender related dimensions of racial discrimination; and the reports of the UN Special Rapporteurs, particularly, the Special Rapporteur on violence against women and its causes and consequences.¹⁶ Rather than providing a descriptive account of each provision within these instruments, I analyze the most profound distinction between third tier instruments and earlier instruments, namely, the expansion of third tier rights into the private sphere. This move has brought once invisible forms of gender-based discrimination, particularly familial and intimate partner exploitation, abuse and violence against girls and women to the forefront of human rights discourse. Most important, I look at the way in which third tier instruments have brought violence against women into the narrative of human rights law.

      The CEDAW Committee’s General Recommendations and the provisions of the Maputo Protocol supply some of the most innovative normative and interpretative protections against inequality and discrimination on the grounds of gender. In 1989, the CEDAW Committee’s General Recommendation 12 specifically called on states to protect women against violence, including sexual violence, abuses in the family, and sexual harassment in the workplace. It also recommended that CEDAW signatories include in their periodic reports to the committee information about the legislative and other measures in force to protect women against violence; the existence of support services for women who are the victims of aggression or abuses; and statistical data on the incidence of violence of all kinds against women and on women who are the victims of violence (art. 1–4).

      And in 1992, the CEDAW Committee’s General Recommendation 19 extended CEDAW’s general prohibition on sex discrimination to include gender-based violence, “that is, violence that is directed against a woman because she is a woman or that affects women disproportionately.” General Recommendation 19 states that CEDAW’s definition of discrimination prima facie includes gender-based violence, including acts that inflict physical, mental, or sexual harm or suffering; threats of such acts; coercion; and other deprivations of liberty (art. 6). General Comment 19 provides an illustrative list of those fundamental rights and freedoms that can be impaired by gender-based violence: the right to life; the right not to be subject to torture or to cruel, inhuman, or degrading treatment or punishment; the right to equal protection according to humanitarian norms in times of international or internal armed conflict; the right to liberty and security of the person; the right to equal protection under the law; the right to equality in the family; the right to the highest standard attainable of physical and mental health; and the right to just and favorable conditions of work (art. 7).

      It is a defining feature of third tier human rights instruments such as CEDAW General Recommendations that “private” violence is not only identified as a human rights violation but that state parties have an obligation to protect victims, punish abusers, and eliminate the practice in communities (art. 9).

      The preamble to the Maputo Protocol points out that “despite the ratification of the African Charter on Human and Peoples’ Rights and other international legal instruments by the majority of States parties, and their solemn commitment to eliminate all forms of discrimination and harmful practices, women in Africa continue to be victims of discrimination and 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