Sex and International Tribunals. Chiseche Salome Mibenge

a UN Declaration on the Elimination of Violence Against Women; and the recognition of war crimes against women in an international criminal court (Dauer 2001: 69).

      The General Assembly did go on to approve the UN Declaration on the Elimination of Violence Against Women (1993), and it provided that acts of violence included physical, sexual, and psychological violence occurring in the family, including battering; sexual abuse of female children in the household; dowry-related violence; marital rape; female genital mutilation and other traditional practices harmful to women; nonspousal violence; violence related to exploitation; sexual harassment and intimidation at work, in educational institutions, and elsewhere; trafficking in women; and forced prostitution (art. 2).

      And although the declaration had no binding force, its influence can be detected in subsequent human rights conventions and the work of treaty bodies. The declaration’s preamble referred to an increased vulnerability to violence that women belonging to minority groups, indigenous women, refugee women, migrant women, women living in rural or remote communities, destitute women, women in institutions or in detention, female children, women with disabilities, elderly women, and women in situations of armed conflict experience. However, it did not make the link between sexual violence and war crimes.

      Further, the UN Human Rights Commission approved the appointment of an expert referred to as the Special Rapporteur on Violence against Women, who has produced various studies focusing on sexual violence in armed conflict. The International Criminal Court, established in 2000, includes in its jurisdiction rape and other forms of sexual violence, such as enforced prostitution, forced pregnancy, and sexual slavery, as crimes against humanity and as war crimes when committed in the context of international or internal armed conflict (Dauer 2001: 69).

      The UN World Conference on Human Rights adopted the 1993 Vienna Declaration and Program of Action, and it also confirmed that violations of the human rights of women in situations of armed conflict are violations of the fundamental principles of human rights and humanitarian law and that they require a particularly effective response (Vienna Declaration, art. 30). The Vienna Declaration describes massive violations of human rights, such as genocide, ethnic cleansing, and the systematic rape of women in war situations as “abhorrent” and calls for the punishment of perpetrators (art. 28). It lists discrimination against women among some of the most egregious forms of gross and systematic violations of human rights alongside such crimes as disappearances and arbitrary detentions, crimes that are associated with armed conflict, particularly internal armed conflicts (art. 28 and 30).

      At the Fourth World Conference on Women (Beijing Conference, 1995), the topic of sexual violence against women during armed conflict occupied a prominent position.³³ The Beijing Declaration and Platform for Action (Beijing Declaration) identified women and armed conflict as one of the twelve critical areas of concern that member states, the international community, and civil society should address (Beijing Declaration, para. 131–49). The Beijing Declaration defines violence against women as any act of gender-based violence that results in, or is likely to result in, physical, sexual, or psychological harm or suffering to women, including threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or private life (para. 114). Violence against women in armed conflict is expressly referred to: “Other acts of violence against women include violation of the human rights of women in situations of armed conflict, in particular murder, systematic rape, sexual slavery and forced pregnancy” (para. 115).

      The Beijing Declaration places violence against women in armed conflict within a structural hegemonic framework that subordinates the gender role of women in society (para. 136). It describes rape as a tactic of war and terrorism. The impact of war on women is described in terms of displacement, loss of the home and property, the loss or involuntary disappearances of close relatives, poverty, and family separation and disintegration (ibid.). Women are described not only as rape victims but also as victims of acts of murder, terrorism, torture, involuntary disappearance, slavery, sexual abuse, and forced pregnancy in situations of armed conflict.

      The Beijing Declaration describes violence against women in armed conflict, foreign occupation, and other forms of alien domination not as a limited temporal event but as one having enduring social, economic, and psychologically traumatic consequences (para. 136). This recognition is integral to understanding testimony from women speaking years after the cessation of hostilities, as in the testimony I referenced above. The Beijing Declaration pays particular attention to the enhanced vulnerability to abuse and exploitation that refugee and internally displaced women experience (para. 137).³⁴ It shines some light on sexual violence against uprooted women and girls employed as a method of persecution in systematic campaigns of terror and intimidation that forces members of a particular ethnic, cultural, or religious group to flee their homes (ibid.). The declaration describes gender as a ground for persecution and transcends the temporal jurisdiction of international humanitarian law by pointing out that women persecuted on grounds of gender, for example, through acts of sexual violence, continue to be vulnerable to violence and exploitation while fleeing, in countries of asylum and resettlement, and during and after repatriation. It further states that women often experience difficulty in some countries of asylum in being recognized as refugees when the claim is based on such persecution (ibid.). An unequivocal recognition such as this is pertinent when recalling the invisibility of enforced prostitution, rape, and exploitative sexual bartering that so dominated the landscape of occupied and liberated Europe after World War II.

      The Beijing Declaration is one of the first rights instruments to refer to the positive roles women play in mediating conflict and mitigating its harmful impact on themselves, their wards, and community. It states that during times of armed conflict and the collapse of communities, the role of women is crucial. They often work to preserve social order in the midst of armed and other conflicts and they make an important but often unrecognized contribution as peace educators both in their families and in their societies (para. 141 and 138). The Beijing Declaration also salutes refugee, displaced, and migrant women for their endurance, resourcefulness, and positive contribution to countries of resettlement or the country of origin on their return. The declaration calls on states to involve these women in shaping policy that affects them (para. 138).³⁵ More broadly, the declaration calls on states to mainstream a gender perspective into all programs responding to armed conflict and to increase the participation of women in conflict resolution at decision-making levels (para. 143).

      Taking into account the violent power struggles that many African countries have undergone since the inception of the Universal Declaration, at the regional level, the Maputo Protocol pays specific attention to the protection of women affected by war, including those seeking asylum, refugees, returnees, and internally displaced persons, against all forms of violence, including rape and other forms of sexual exploitation. The Maputo Protocol uses the term women to include both women and girls; however, at times girls are given special mention by virtue of their status as minors, particularly with respect to their special vulnerability in armed conflict to sexual violence and recruitment for child soldiering (art. 11[3] and 11[4]). The Maputo Protocol, in the manner of third tier instruments, asserts that the perpetrators of such violence (gender-based violence as a war crime, genocide, and/or crimes against humanity) will be brought to justice (art. 11[3]).

      References to violence against women in armed conflict in international human rights documents became more specific in the 1990s, with the media devoting attention to gender-based violence as a form of genocide and ethnic cleansing in Rwanda and the former Yugoslavia, respectively. In 2000 the Human Rights Committee noted the particular vulnerability of women in times of internal or international armed conflicts and called on state parties to inform the committee of all measures taken to protect women from rape, abduction, and other forms of gender-based violence (General Comment 28, art. 3[8]). Interestingly, the CEDAW Committee does not focus on making a “war” and “peace” distinction but leans toward describing hegemonic relationships, for example, those arising in occupied territories, where women may be especially vulnerable to sexual abuse and exploitation. In highly specific gendered language, the CEDAW Committee states that wars, armed conflicts, and the occupation of territories often lead to increased prostitution, trafficking in women, and sexual assaults against women, which require specific protective and punitive measures (General Recommendation 19, art. 16).