Violent Extremism and Terrorism in the Scope of Women, Peace and Security: an Uncomfortable Relationship

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Credit: UN Photo/DN (http://www.un.org/en/sc/about/)

The most recent and very controversial resolution of the United Nations Security Council(UNSC) Women, Peace and Security (WPS) agenda, Resolution 2242 of 2015, has started to be implemented by the member states: a very recent example is Bosnia and Herzegovina. To date, Bosnia and Herzegovina has adopted three National Action Plans (NAPs) to implement the WPS agenda in its legal, judicial and administrative bodies for the periods of 2010-2013, 2014-2017and 2018-2022. Although the first two NAPs have not engaged with counterterrorism (CT) or countering violent extremism (CVE), the third NAP has a specific section regarding the measures for CT and CVE. In the NAP of 2018-2022, greater involvement of women in the initiatives for CT/CVE is highly encouraged.

The engagement of women with the CT and CVE programmes has developed in a very problematic way. The international framework on CT and CVE was established by UNSC Resolution 1373 (2001), immediately after 9/11. Fionnuala Ní Aoláin’s review of 43 UNSC Resolutions regarding the CT/CVE agenda pointed out that the agenda made only a handful of references to women and/or sexual harms. Thus, the CT and CVE agendas were gender-blind. Whereas the WPS agenda, at least initially, was trying to bring a gender lens to the peace and security concepts, CT/CVE resolutions have remained detached from the UNSC WPS purposes and agenda.

Very recently, this detachment has been terminated, not through the application of a gender-sensitive lens to the CT/CVE, but through the engagement of the WPS agenda with the CT/CVE programmes. With the adoption of UNSC Resolution 2242, CT/CVE discourse has been introduced to the WPS agenda.

In Resolution 2242, the SC

“(…) expresses deep concern that acts of sexual and gender-based violence are known to be part of the strategic objectives and ideology of certain terrorist groups, used as a tactic of terrorism, and an instrument to increase their power through supporting financing, recruitment, and the destruction of communities (…)”

To tackle this, the SC

“(…) urges Member States and the United Nations system to ensure the participation and leadership of women and women’s organizations in developing strategies to counter terrorism and violent extremism which can be conducive to terrorism(…)”

Integration of CT/CVE with the WPS agenda through “strategic essentialism” presented women as “an untapped resource for countering violent extremism” (page 31). Feminist scholars have been concerned with the language in the resolution which essentializes women “as wicked purveyors of extremist violence or virtuous saviours of sons, husbands and communities” (page 282).

Bosnia and Herzegovina’s latest NAP echoes this language of Resolution 2242. “Women and children” are depicted as the main victims of violent extremism and terrorism.  The NAP acknowledges the presence of “radical communities” in Bosnia and Herzegovina and encourages international partners, the non-governmental sector, academia and religious communities to cooperate in order to “protect” the main victims of violent extremism and terrorism: “women and children”.

A major problem with both Resolution 2242 and the Bosnian NAP of 2018-2022 is the “over-simplistic understanding of the causes of extremism, and the solutions”(page 108). Such an approach seems palliative; the reasons for the emergence of violent extremism and terrorism in societies are simply ignored and instead the aim is onlyto treat the symptoms.

In addition, Resolution 2242 leaves the meanings of “violent extremism” and “terrorism” open. Similarly, Bosnia and Herzegovina barely specifies the measures for tackling violent extremism and terrorism. This prevents us from gaining any insight into the meaning and scope of “violent extremism” and “terrorism” in the Bosnian context. Expansion of the WPS agenda and alignment of the CT/CVE  and WPS agendas “does not mean that women will be included in defining what constitutes terrorism” and violent extremism. This very point creates concerns for feminist scholarship since the ambiguous and “customizable” scope of violent extremism and terrorism might lead to the securitization and instrumentalization of the WPS agenda, and to the legitimization of the SC.

This is not the first time that international security has intervened in the WPS agenda. In an earlier resolution, Resolution 1960 of 2010, the SC brought forward “targeted sanctions” against perpetrators of sexual violence in armed conflict, which was a “counterproductive development in the contemporary collective security approach to women, peace and security”. Such security-oriented interventions sideline gender equality and aim to “empower” women with the only purpose of providing security in the affected societies.

As Diane Otto has pointed out, any so-called successes in the feminist theory and practice should always be weighed against their consequences. Integration of the CT/CVE into the WPS agenda is presented as a success by the UNSC since this integration could reduce the impacts of terrorism and violence extremism on women. However, as WILPF reminds us, “inclusive” strategies are more often than not used to justify the use of force.

Although Resolution 2242 has already been adopted in Bosnia and Herzegovina and many other countries through NAPs, legal, judicial, and administrative bodies and women’s rights NGOs should cautiously put the NAPs into practice by constantly examining the potential impacts of CT and CVE programmes on women.

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A Transformative Approach to Personal Laws

It’s been a busy few weeks for the Indian Supreme Court with both gains and loses. Notably, in the Sabarimala judgement, Justice Chandrachud observed that the rationale used by the Bombay High Court in Narasu Appa Mali v State of Bombay, which held that personal laws should not be subject to fundamental rights, is not sustainable. Chandrachud, however, only overrules Narasu on the point that customs are not subject to fundamental rights.

This exposition in itself is unremarkable since the Supreme Court in Sant Ram v. Labh Singh had already held that customs are subject to a fundamental rights challenge. The ratio of Narasu Appa Mali only extended to uncodified religious law which hasn’t been modified by either custom or usage. Thus, while the outcome remains unchanged, the observation by Chandrachud that the reasoning of Narasu is flawed, segues into the question of whether personal law can be counted as law and thereby lays the groundwork for a challenge to personal laws when it arises.

What are personal laws?

To set some context to the debate, it might be useful to understand what personal laws are. The idea that religious sphere is entirely distinct is of recent vintage it was through a process of construction during the British era that a separate space was carved out for certain religious laws, generally governing family matters like marriage and divorce. Thus, the first point to note is that there is nothing inherently personal about personal laws. The scriptures gained jurisdiction over certain matters because the colonial state said so, and this determination was due to sociopolitical rather than religious reasons.  It is untenable therefore to think that the body of laws referred to as “personal laws” derive their validity from religion, rather than the state. Second, personal laws were shaped by male elites of each religious community using the colonial state. For example, with regard to Hindu personal law, there was a forced homogenization and enforcement of Brahmanical law. Today, many personal laws are alleged to promote the subordination of women and other minorities. However, to have a fundamental rights review, ‘personal laws’ has to fall under the definition of ‘law’ or a ‘law in force’ in Article 13 of the Constitution.

Narasu Appa Mali v State of Bombay

The petition in Narasu challenged validity of the Bombay Prevention of Bigamous Hindu Marriages Act, 1946 which sought to render bigamous marriages void as well as criminalize the offence of bigamy. What the Court ultimately ended up deciding was the question of whether coming into force of constitution, muslim polygamy is void because it violates Art. 15. This might be explained by the dominant narrative prevailing in the country during the early 1950s. At the time the judgement was pronounced, the Hindu Code Bill was still in deliberation and the general sentiment was that only the Hindus were being ‘punished’. It might be useful to keep this context in mind while evaluating the rationale of the two judge bench.

Prior to determining whether muslim polygamy is unconstitutional, the Court had to answer the question of whether it is law in the first place. To answer this question, the Court looked at Article 13 and applied the principle of ‘Expressio Unius Exclusio Alterius’ i.e. the expression of one excludes the other, and its present application. It characterised customs & usages as deviations from personal laws and relied on Article 112 of the Government of India Act, 1915 which had discussed customs as different from personal laws, to say that personal laws cannot be laws under Article 13. The inclusion of various provisions in the Constitution that relate to state regulation of personal law, such as Article 17 (Abolition of untouchability), Article 25 (Freedom of Religion) would be redundant had the drafters wanted to include personal laws within the definition of law. It further relied on Art. 44, which asks the state to endeavour to build a Uniform Civil Code, to say that there is a presumption by the drafters that different personal laws will exist even after independence. Moreover, Article 44 and Entry V of the Concurrent List seems to suggest that the drafter’s intent was to give this power to the legislature and not the judiciary. It also referred to Article 372 of the Constitution. Pre-constitutional laws continue in force by virtue of this Article, and that they can be amended by the President. The Court reasoned that since the President had no power to modify personal laws, personal laws do not derive their validity from Article 372 of the Constitution.

Re-evaluating Narasu Appa Mali

Narasu has never been challenged in the Supreme Court. Previous decisions such as John Vallamottam v Union of India and C Masilamani Mudaliar v Idol of Sri Swaminathaswamiswaminathaswami which are commonly cited as examples of the Court subjecting personal laws to a fundamental rights review, only dealt with codified personal law.

However, there is some literature offering a contrary view. Krishnan argues that the term ‘includes’ in Article 13 is an inclusive definition. For example, Art. 13(3)(a) does not use the word “common law” and yet we subject that to Part III. There is no evidence to suggest that the drafter were referring to the Government of India Act, 1915 in drafting this section. As Bhatia argues, Article 17 could have just been incorporated by way of abundant caution. The corrosive and pervasive nature of caste discrimination could have made the framers include a specific article prohibiting untouchability as an extra measure to leave nothing to chance.  Moreover, the scope of Article 25 is way broader than personal laws.  It protects an individual’s right to practice her religion rather than protecting religious norms or rules. Article 44 is located in Part 4 of the Constitution (Directive Principles of State Policy) and therefore casts no positive obligation on the State. Many Directive Principles duplicate obligations that would arise from fundamental rights themselves.

However, the question ultimately comes down to how we understand our constitution. Should we read the Constitution textually, debating the technical points of law or should we read it as a transformative document capable of bending the moral arc of the Indian polity towards justice. In the words of Chandrachud-

“Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution.”

Not only was the Constitution transformative in the sense that it indicated a break from India’s past, but it also has a transformative potential. At the heart of transformative constitutionalism is vision of change, a redemptive potential. By subjecting personal laws to a fundamental rights challenge would mean acknowledging how some of these laws have becomes sites of hierarchy and subordination, where minorities like women and lower castes are denied equal moral membership of society. A transformative vision places the individual dignity at the forefront of its endeavours and values constitutional morality over societal morality. Here’s hoping that when the challenge to personal laws comes, it is also on these grounds.

Will the new crimes against humanity treaty protect women and LGBTI persons?

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               Photo courtesy of Groundswell.

If you haven’t heard about the new treaty on crimes against humanity that the United Nations has in the works, you’re not alone. Most haven’t.

What you should know is if this treaty goes forward for adoption in its current draft form, only some—not all—people will be protected from crimes against humanity like massacres, rape, torture and persecution. This is because the treaty adopts an outdated definition of gender that some states will inevitably use to shirk their responsibility for addressing gender-based crimes.

We need this treaty, first of all, because it could help bring such atrocities to light and perpetrators to justice. The only permanent court in existence for prosecuting such crimes, the International Criminal Court (ICC), doesn’t have a mechanism for interstate cooperation, and few states have crimes against humanity incorporated into their domestic legislation.

The problem is that the draft treaty adopts the definition of gender from the Rome Statute, which established the ICC, stating: “it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society.” On its own, the definition does not make clear who is protected. While it’s understood to be inclusive of all gendered crimes that meet the threshold of persecution, there has never been a successful prosecution at the ICC. Not surprisingly, since the Rome Statute’s codification, such a definition has never been used again.

To understand how this definition of gender came about we have to go back about twenty years. During the 1990s in Rome, women’s rights advocates rallied for the term “gender” instead of “sex” to be listed alongside race, ethnicity, religion and the other the protected groups from persecution. A small, socially conservative opposition objected, fearing the term “gender” would more broadly affirm LGBTI rights as human rights. They also wanted to limit the scope of women’s rights.

Since Rome, two decades of international human rights law has solidified the definition of gender as a social construct across UN Agencies and human rights mechanisms. The term sex is left for biologists. However, while this “footnote” to the term gender is understood to be inclusive, there are states that would gladly use this opaque definition as an excuse to ignore conflict-related gender-based crimes.

So how does an outdated definition to a protected group get adopted into a new crimes against humanity draft treaty?

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             Photo courtesy of CUNY Law School

While oodles of rights and protections were taken into consideration during the dialogues on the draft treaty, no one thought to discuss gender. Perusing through the comments over the last four years of discussions and debates by states and experts partied to the drafting process, not one mentions the outdated definition that was cut and pasted into the draft. While issues concerning everything from the rights of witnesses and victims to the cooperation between states have been discussed in great detail, there’s no mention of women, gender, LGBTI people, or even sexual violence. 

At the beginning of the drafting process, a small handful of legal advocates pointed to the definition and called for the drafters to either not include it¾since no other ground of persecution required one¾or adopt a clearer definition as used by the UN. Valerie Oosterveld, an international criminal law professor who was a pivotal delegate at Rome, raised concerns about the problematic nature of adopting a definition into the CAH treaty that was drafted to be deliberately ambiguous (“constructive ambiguity” in diplomatic parlance) in order to resolve polarized positions during the Rome Statute negotiations. Considering she’s one of the foremost experts on the issue of gender under international criminal law, it’s astonishing her ideas were dismissed.

Part of the problem stemmed from the fear that the controversy surrounding the definition twenty years ago would resurface and tank the treaty if the debate on gender were reopened. Some states and drafters have expressed the need to get the treaty passed expeditiously and to keep the original language from Rome intact.

But does a new treaty that codifies an outdated definition of gender serve the interests of justice?

Fighting for recognition of gender-based violence is not new. Sexual violence crimes were not taken as seriously as other crimes in the early years of international criminal tribunals. Feminists had to struggle tirelessly to secure the recognition of rape as a form of torture in certain contexts.

In the 1990’s the Human Rights and Gender Justice Clinic of CUNY Law School, (known then as the International Women’s Human Rights Initiative Clinic) served as the secretariat for the Women’s Caucus for Gender Justice, a global coalition of women’s rights activists working to address gender gaps in the draft Rome Statute. Just as there was push-back against the term “gender”, there was also great opposition to recognizing sexual violence as a serious international crime.

A key component to their success was combining advocacy with legal strategy. Gender strategies in the tribunals grew from the notion that “women’s rights are human rights.” Today, advocates are calling for a “gender equal world.”

This is a pivotal moment in history to affirm our understanding of discrimination, including where gender-based oppression dictates narratives for sexual orientation, gender identity and sex characteristics. What we do now will affect people’s rights for generations to come.

It’s time for the international community to take a stand. A treaty meant to protect people against the worst atrocities imaginable by its nature should protect all of us.

 

African Court issues its first judgment on women’s rights

On 11 May 2018, the African Court on Human and Peoples’ Rights issued a landmark judgment in the case APDF and IHRDA versus the Republic of Mali. For the first time in its history, the Court found a violation of the Protocol on the Rights of Women in Africa. The Court held that Malian Family Code violates women’s rights as recognized under international law, and condemned the State of Mali to modify its legislation.

Two civil society organisations had lodged a complaint before the African Court in September 2016 alleging that the Malian Family code adopted in 2011 is not compatible with the State’s obligations under international law. The Court therefore proceeded to examine if the code was in conformity with human rights instruments Mali had ratified, and found that several provisions of this code are not.

The Malian Family Code permits marriage for girls from the age of 16-years. In specific circumstances, the minimum age for marriage for girls may be lowered to 15-years. Consent is not always a requirement for a marriage to be valid. The African Court found that the relevant provisions of the Family Code are blatant violations of the Protocol on the Rights of Women in Africa (Maputo Protocol) under which the minimum age for marriage is 18 years for both women and men. The Maputo Protocol also provides that free and full consent in marriage must be protected by law. In matters of inheritance, Islamic law and customary practice is the applicable regime by default in Mali. This means that women only receive half of what men receive and children born out of wedlock receive inheritance only when their parents so decide. In relation to this issue, the African Court emphasized that women and natural children should be entitled to inheritance by law, and as such, the Family Code should not allow the application of rules contrary to this principle. The Court held that the relevant provisions of the Malian Family Code are discriminatory and perpetuate practices or traditions harmful towards women and children, in violation of the Maputo Protocol, the African Charter on the Rights and Welfare of the Child and the UN Convention on the Elimination of All Forms of Discrimination against Women.

The political context in which the Malian Family Code was adopted, characterized by vigorous opposition by religious movements to a more progressive legislation, was at the heart of the arguments put forward by the State of Mali in its defence. But to the African Court, this was no good excuse for passing a law contradictory to its international obligations. It thus ordered Mali to modify its legislation as well as to take measures to inform, teach, educate and sensitize the population on the rights of women, and to report to the Court on the implementation of the judgement within a period of two years. Continue reading

U.N. Sanctions Can Help Stop Rape in War

Sexual violence is clearly prohibited in peacetime and wartime, both by international human rights law and the lex specialis international humanitarian law. Despite these prohibitions, sexual violence remains prevalent in many modern conflicts. Furthermore, it continues to be used intentionally by government forces and militias as a weapon in order to achieve military or political objectives. As seen in Myanmar, South Sudan, Syria and the DCR, sexual violence is used effectively to terrorize, forcibly displace, ethnically cleanse, and control civilian populations seen as the “enemy”- at the cost of women and girls.

In 2008 the United Nations Security Council (UNSC) issued a groundbreaking resolution (1820) that threatened the use of targeted sanctions against individuals ordering, tolerating or engaging in sexual violence as a weapon of war. Sanctions, foreseen in article 41 of the UN Charter, are one of two coercive powers that the Security Council holds under Chapter VII. Through the threat of coercive measures, the UNSC thus affirmed its ability and willingness to place meaningful restraints on sexual violence in conflict.

This was a groundbreaking and welcomed move. Designation criteria relying on international human rights and humanitarian norms have the potential to reinforce legal frameworks on prevention and accountability. Indeed, targeting political and military commanders with sanctions can create an incentive to stop deliberately ordering or implicitly tolerating sexual violence committed by their soldiers. Sanctions can compel commanders to change behavior and exercise better control over troops.

But ten years after the UNSC first threatened sanctions, where are we in practice? This question drove Georgetown University’s Institute for Women, Peace and Security to investigate whether the Security Council actually translated its threat of sanctions into concrete action.

We studied 8 sanctions regimes in countries characterized by continuing armed conflict and massive human-rights violations, including the use of sexual violence as a tactic of war: Central African Republic, the Congo, Libya, Mali, Somalia, South Sudan, Sudan and Yemen. Our report finds that sanctions have great potential, but are largely underutilized and implemented ineffectively.

Unfortunately, the inclusion of sexual violence in sanctions regimes is not consistent, nor is it timely. Some sanctions regimes do not once mention sexual violence as part of the designation criteria – despite evidence of widespread use (such as in Sudan). Some regimes include references to sexual violence, but only decades after the first violations were reported (such as in Somalia). Moreover, follow-up of the threat of sanctions with concrete designations of individuals is often neither timely nor reflective of the main perpetrators. Failure to act on the threat of sanctions actually gives perpetrators permission and incentive for brutality, because it gives them confidence that no meaningful rebuke will follow. Continue reading

Debating the Istanbul Convention in Lithuania: The Term ‘Gender’ is not Alien

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(Pixabay)

In June 2018, Lithuanian president Dalia Grybauskaite submitted to the national parliament the Council of Europe Convention on preventing and combating violence against women and domestic violence — known as the Istanbul Convention — for ratification. Entered into force in 2014, the Convention provides a comprehensive set of policy and legal measures to prevent and prosecute violence against women and protect the survivors.

Yet the treaty is bound to face political opposition, as demonstrated by the earlier parliament’s decision to put on hold its ratification. The main reason for the delay was the use of the term ‘gender’ in the Istanbul Convention. In accordance to Article 3c, ‘gender’ means ‘socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men’. The term is central to the Convention since it depicts violence against women as gender-based. In other words, it views gender violence as a consequence of power inequalities between men and women, which are rooted in sociocultural norms. The critics in Lithuania assert that the concept of ‘gender’ is unfamiliar to national law. It is further argued that the treaty challenges binary sex system and paves the way to the recognition of lesbian, gay, bisexual and transgender (LGBT) people.

This post, however, asserts that the concept of ‘gender’ has been long present in national law consequent to the country’s entry into two international treaties, 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the 1998 Rome Statute of the International Criminal Court (ICC). Relatedly, existent gender obligations are highlighted, including those owed to LGBT people.

CEDAW: promoting gender equality

The ruling Lithuanian Farmers and Greens Union party previously suggested that CEDAW, which Lithuania ratified in 1994, provided a sufficient framework to tackle violence against women. As a treaty dedicated to the elimination of discrimination against women, it is absent of the term ‘gender’ and is believed to overlap with the Istanbul Convention.

 Such arguments are defective. CEDAW does not contain a specific provision on violence against women. It is true that CEDAW uses the term ‘sex’, not ‘gender’; in substance, however, CEDAW is in alignment with the Istanbul Convention insofar both treaties require the state parties to undertake measures altering proscribed gender roles. For instance, CEDAW mandates the state parties:

 ‘To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women’ (Article 5a).

 ‘To eliminate ‘any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim’ (Article 10c).

 Appreciation of sociocultural factors is also evident in general recommendations of the Committee on the Elimination of Discrimination against Women, the treaty monitoring body. General Recommendation 28, for example, stipulates that ‘although the Convention only refers to sex-based discrimination . . . [it] covers gender-based discrimination against women. The term ‘gender’ refers to socially constructed identities, attributes and roles for women and men’. The addition of ‘gender’ to the Committee’s documents does not conflict with CEDAW. On the contrary, it provides the name to the addressed social dimension of inequality between women and men. The name, which entered a vocabulary of international law only in 1990s, after CEDAW was made. 

 The genie is out of the bottle: just as resistance to the concept of ‘gender’ due to its newness appears to be ungrounded, so does the belief that Lithuania does not have commitments to LGBT persons seems to be false. As Article 1 of CEDAW demonstrates, the treaty is a non-discrimination instrument targeting ‘any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing . . . of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’. It may therefore be applicable, for example, to lesbians whose rights to marriage, health care and employment are adversely affected owing to heteronormative impositions.

The Rome Statute and the pioneer legal definition of ‘gender’

The Rome Statute may seem to have little relevance to the debates surrounding the Istanbul Convention and violence against women. It established a permanent international criminal court which has the jurisdiction to prosecute individuals over the crimes of genocide, crimes against humanity, and war crimes. Yet for the purpose of this article, the Rome Statute significant, since it was the first international treaty to define ‘gender’. Its ratification by Lithuania in 2003 demonstrates that the country encountered the term; and was presented the opportunity to engage the concept through its translation.

In accordance to Article 7(3) of the Rome Statute, ‘gender’ refers to the ‘two sexes, male and female, within the context of society’. This rather peculiar conceptualisation has a clear deterministic foundation: it acknowledges only two sexes, male and female. As I contended elsewhere, it may consequently exclude intersex individuals who are neither female nor male: they possess a combination of male and female genitalia, or have ambiguous genitalia.

The phrase ‘within the context of society’, meanwhile, enables the ICC to consider contextual factors, including gender roles, social attitudes, and sexual orientation. Article 7(3) has the scope of accommodating LGBT persons since most of them identify themselves as either male or female, yet they tend to experience discrimination due to non-adherence to heterosexual norms. The social construction of gender has also been highlighted by the ICC Office of the Prosecutor. Its 2014 Policy Paper on Sexual and Gender-Based Crimes explains that the definition of ‘gender’ ‘acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys’. Alas, the sociological component is lost in the Lithuanian translation of Article 7(3); in effect, it conflates ‘gender’ with ‘sex’.

So the Istanbul Convention would neither introduce the term ‘gender’ nor impose the requirement of LGBT-inclusive gender equality — both have been part of Lithuanian international responsibilities. It would, however, assist the country in addressing the root causes of gender-based violence, criminalise the latter adequately, and implement victim-centred protection and support measures.

Human Trafficking as a Gendered Phenomenon: CEDAW and a missing jigsaw piece – Part II

In the first part of this blog, we provided a summary of our article “Human Trafficking as A Gendered Phenomenon: CEDAW in Perspective in which we argue that the CEDAW Committee is an important actor whose voice should be heard when discussing States obligations towards the elimination of trafficking and that Article 6 of the Convention needs further clarification/development.

Since publication of our article we have continued to ask ourselves how and why trafficking is divorced from the issue of violence against women within CEDAW’s framework. This posts sets out part of this brief history as a prelude to our article and as part of the history of women’s rights advocacy on these issues. We hope that others can elaborate on the schism between Article 6 and violence against women, and the ongoing lack of a GR on human trafficking.

Gender-Based Violence Against Women

Last year, the CEDAW Committee updated General Recommendation No 19 on violence against women in its General Recommendation No 35 (2017). This GR has garnered much attention for both its content and for its procedure with over 100 women’s groups, NGOs and stakeholders contributing to its promulgation.[1] The Recommendation, which acts as authoritative guidance on the Committee’s interpretation of the Convention’s provisions in relation to violence, acknowledges that despite advances in the field since GR19, gender-based violence against women remains pervasive in all countries of the world and it manifests in a continuum, in a range of settings.[2] The updated substantive statement on gender-based violence against women is a reminder of where we have come and where we still have to go to eradicate violence, and make the right to live a life free from violence a reality.[3]

GR 35 however does not however deal with the issue of human trafficking of women and girls. While trafficking has been mentioned in a number of the Committee’s General Recommendations (GR 26, 28, and 35) the Committee has only done so in passing, instead commenting in its GR on migrant workers that the phenomenon of trafficking could be more comprehensively addressed in its own GR on Article 6. It has remained a mystery to us as to why the Committee has remained interpretatively silent on an important substantive article, leading us to question why Article 6 and violence against women have become separated and whether the Committee has always taken this approach.

An Archaeological Dig

It is well known that the Convention did not include a substantive article on violence against women and that instead GR19 marked an important step in the Committee’s interpretation of the Convention to make explicit the link between violence and discrimination. An analysis of the CEDAW Committee’s session minutes indicates that at the time of drafting GR19, Article 6 (trafficking) formed an integral part of that discussion. GR19 was adopted at the eleventh session, and it was and still is a landmark statement on gender-based violence. It provides an article by article approach setting out how the different articles of the Convention interact and relate to violence against women.

Interestingly, the minutes of the 10th and 11th sessions seem to indicate that originally violence and trafficking were to be considered together in one general recommendation.  The report mentions an anticipated discussion of Article 6 of the Convention and that members were asked to consider the report of the Secretary General on Violence against Women in all its forms, which contained the report of the Expert Group Meeting on Violence against Women, held in Vienna in 1991. We then see that a member (anonymised) expresses concern over the lack of coordination of the CEDAW Committee with the Expert Group and the Commission of the Status of Women. Different experts voiced their consideration at the risk of duplication. One member asked if “it was perhaps necessary to have two separate recommendations: one on violence and one on article 6”.

The report then records that GR19 was adopted as a response to the Expert Group Meeting on Violence against Women and that comments of the Working Group on Article 6, would be picked up at a later session. Ms Bustelo and Ms Aouij volunteered to prepare draft general comments for the next session. At the 12th session, the Working Group recommended that the work should be continued. The minutes of the 12th session thus further indicate that there has been long-standing work on a General Recommendation on Article 6 yet it is unclear from the later minutes what happened and why this GR has not come to fruition. This mystery is underlined further by the Committee’s own statement in the GR on migrant women that there should be a separate recommendation in relation to Article 6 and trafficking.

Conclusion

The work of the Committee continues today and is phenomenally important to women’s rights advocates. The Committee’s work on gender-based violence against women as a form of discrimination together with its specialised status in interpreting human rights norms and obligations in relation to women has been significant and influential. In the context where regional and international courts and tribunals have yet to grasp how trafficking is a gendered phenomenon CEDAW’s interpretative expertise is welcome, and in our view, long overview. Understandably, the Committee has many competing issues to deal with, and we recognise that Article 6 presents particular theoretical and political challenges.  However, the seriousness and pervasiveness of the violations of women and girls’ rights who suffer from human trafficking and exploitation in prostitution demands the Committee’s specialised and expert action. The enactment of GR35 forms another historical moment for the Committee, and for us another reminder that more has to be done to tackle trafficking against women and girls.

[1] ‘The CEDAW Committee’s General Recommendation 35. A renewed vision for a world free of gender-based violence against women’, available at http://ehrac.org.uk/wp-content/uploads/2018/01/EHRAC-Winter-2017-WEB.pdf.

[2] ‘CEDAW General Recommendation 35 draws an explicit link between gender, discrimination and conflict-related violence against women’, available at http://blogs.lse.ac.uk/wps/2017/09/12/cedaw-general-recommendation-35-draws-an-explicit-link-between-gender-discrimination-and-conflict-related-violence-against-women/

[3] ‘CEDAW General Recommendation 35 on violence against women is a significant step forward’, available at http://blogs.lse.ac.uk/wps/2017/09/06/cedaw-general-recommendation-35-on-violence-against-women-is-a-significant-step-forward/