The Usefulness of Human Rights Framework in Addressing Gender Based Violence

Friday, October 1, 2010
Patience Gulu

The Usefulness of Human Rights framework in addressing Gender Based Violence

The essay will show the usefulness of the Human Rights Framework in tackling Gender Based Violence (GBV). The essay also will use some examples of gender based violence from war and conflict affected areas. I will also analyze the human rights instruments and how they have addressed GBV and I will finally indicate the strength and weaknesses of human rights framework.

Overview of gender based violence and human rights

Gender-based violence in conflict settings violates the fundamental human rights of women and it is therefore regarded as human rights issue to be addressed by human rights instruments and treaties.

Gender based violence may be described as that violence infringed on persons or groups of individuals on a core basis of being a male or female.

The United Nations Declaration on the Elimination of Violence against Women (1994) 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”(Nussbaum, 2005). This violence may occur both in public and private spheres. It is that act that is directed to a woman because she is born a woman and such violence affects her disproportionately.

In this case, not all acts of gender based violence affect women only but also male are victims of gender based violence in certain circumstances. Women are affected differently due to their gender division of labor, roles and responsibilities (Save the Children Report, 2004).Gender-based violence in war affected communities can be noticed in different ways for example forced prostitution, forced marriage, rape, torture, trafficking, custodial violence, forced displacement, enforced abortion among others (Muzarana etal, 2005, pp.4) In times of war instabilities, women do not have “traditional protection” of their families and husbands. They suffer from forced displacement, family breakdown and are poor, powerless, vulnerable and are faced with dangers of armed soldiers and fighting forces who abuse their human rights.

The fight against women's violence was acknowledged by the United Nations (UN) Declaration on the Elimination of Violence against Women in 1993 ( Rico, 1997). In 1995, the Beijing Declaration and Platform for Action agreed to the UN World Conference on Women. The platform insisted that violence against women inclusive of gender based violence needed a punishable action as a crime under the law (legal redress).This would be followed by measures to end violence against women on the basis of racial grounds, sex, honor crimes, rape in times of war and among other crimes committed against women.

The International Criminal Court (ICC) i.e. the Rome statute (1998) classified “rape, sexual slavery, forced pregnancy and enforced prostitution” as war crimes committed against humanity. Therefore the perpetrators would be brought before the law to answer cases of infringements on women's fundamental rights.

Rape has been used as a weapon of war and not just as “violent male opportunity”. Examples of countries where there has been massive rape as one example of gender based violence in times of war include Democratic Republic of Congo (DRC) Sudan, Uganda, Sierra Leone, Bosnia, Kosovo to mention but a few.

A recent case of Thomas Lubanga, a former Rebel Leader in the Democratic Republic of Congo who is on ICC trial charges that include crimes of sexual slavery and inhuman treatment is a good example (ICC press release, 8/ 12/2009).

Gender based violence in political and legal aspects in the context of war

Women in war torn areas do not even exercise their civil and political rights. The conditionality surrounding women in war violent situations such as poverty, sexual slavery, rape and forced prostitution deny women and girls their political rights.” Those who are poor are also the powerless in society” (commins, 2004, pp.71) therefore the recognition of women rights in war areas entails a lot of questioning of whether the political and civil rights can be reasonable.

According to suplveda, etal (2004, pp.33), the most power and “greatest potential violator of human rights” is the state plus those who hold positions of power in public entities such a peace keeping forces. Although there are improvements in the rule of law that have been strengthened in international conventions such as Article (14) of International Covenant on Civil and Political Rights (ICCPR), gender based violence in the political and legal dimensions remains characterized by a clear separation between the public and private spheres and it worsens women's rights when war takes place. The women especially become the most disadvantaged group and are denied their enjoyment of human rights since their lives are not settled and face forced displacement

The United Nations show that violation of women's human rights includes not only acts committed by governments but that government has got to bear social and political responsibility to stop violence against women.

The state has the obligation to protect and secure rights and put positive measures inclusive of affirmative action in areas of law and bring abusers of gender based violence to justice((Nowak, 2005)

This indicates that the government is a de facto “collaborator” if there is no protection measures put in place to prevent and respect women's rights from violent actions. In addition this shows that women are denied and not given equal protection under the state law to prevent them from gender based violence.

Analyzing International Human Rights Instruments

Under the conditionality of the Universal Declaration of Human Rights, Convention on the Elimination of All Forms of Discrimination against Women, Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights, International humanitarian law, International criminal law, International Convention against Torture and Other Cruel -Inhuman or Degrading Treatment or Punishment, women are mandated to have equal rights and freedom as men.

The International human rights law is one of the international instruments that addresses gender based violence. However it has got some loopholes in addressing this issue. According to Johnston, R.L, (2006), the International human rights instruments such as International Human Rights law defines and emphasizes torture as only “torture by public officials and leaves out violence suffered by women in their homes. In most war areas where there is family breakdown and massive violation of human rights, torture of women includes sexual violence, physical torture, abduction by fighting forces etcetera.

The convention on the Elimination of All Forms of Discrimination against Women (CEDAW) came into existence in 1979 to assure that women enjoy equal rights in both public and private spheres. CEDAW convention. Article3: addresses human rights and fundamental freedoms for women. The convention encompasses cultural, social, economic and political rights to bring forth full development and progression of women with a focus on equality principle.

The women's rights include education, employment, health care, voting among others. State parties that agreed to the convention committed to fight violence directed towards women by making sure that legal and social protection measures are put in place.

The Committee urges all states that are party to the convention to report on the progress made on combating violence against women inclusive of gender based violence in war situations. This also brings to an understanding that state parties can be held accountable if they fail to implement appropriate measures to prevent women from gender based violations as regards the treaty agreements.

Although CEDAW shows a clear concern about gender based violence including trafficking and forced prostitution (Article 6), there is more generality as regards reporting of women's rights. In addition CEDAW describes the concept of discrimination against women in a broad manner and leaves out “discrimination” in spite of the actors, perpetrators, persons, and organizations

Again the International humanitarian law as one of the international human rights instruments is applicable in situations of armed conflict and war. “It can be called be called the law of armed conflict or the law of war” (ICRC, 2005). The central objective is to prevent human suffering in times of war and protect persons that are not participating in hostilities. Additional protocol 1, article (76) focuses on sexual violence where women are to be given respect and be protected from injustices such as rape, forced prostitution and any other forms of violence and indecent assaults.

However in war circumstances there is a “bleach” of this international humanitarian law and most women are found in un protective conditions thus falling victims of gender based violence especially rape. “On few occasions, the United nations is likely to apply a resolution which will eventually reach the military leaders who ordered rape as part of war strategy but only reach the low commanding soldiers committing rapes of which they will never face trial”(Etienne,1995, pp 141).

The year 1998 brought the formation of International Criminal Court and came into force in 2001.The Rome Statute of the ICC identified rape as war crime against humanity. Rape was classified to include “forced pregnancy, enforced sterilization, sexual slavery, enforced prostitution and any other form of aggravated sexual violence (Article 7). In addition the statute focuses on
“a fair representation of female and male judges” i.e. Judges consist of equal gender representation to take legal action on gender crimes committed on women.

Also the formation of o International Criminal Tribunals such as International Criminal Tribunal for the Former Yugoslavia (1996) challenges sexual violence, sexual slavery and torture as crimes and like wise the International Criminal Tribunal for Rwanda adjudicated rape as a crime committed during genocide in 1994. This shows that rape in times of war is a grave offence and with the intervention of legal mechanisms, women's human rights violations inclusive of gender based violence are made more understandable and visible in the public sphere.

Strength and weaknesses of Human Rights Frame Work

The human rights framework has been very instrumental in making women experiences and concerns very visible and also revealing the un equal power relations in societal structures that are core to causing oppression and violence against women. One technique to know the effectiveness of human rights paradigm could be the way in which the international human rights law influences country national policies and legislation which may be useful in determining the strength and limitations of the human rights framework.

Among the strengths is that human rights framework has recognized gender based violent experiences that women have encountered. This has been one way in which women's rights abuses have been officially recognized and effective laws have been drafted and put into action to deal with issues of gender based violence. For example rape in times of war has been moved from being an individual problem to a human right crime under the conditions of some international human rights instruments.

One of the greatest limitations of human rights framework is that the implementation process of the human rights is left entirely in the hands of the states and its political will although “originally the idea of basic rights originated from the need to protect individuals against state power” (Sepulveda etal, 2004, pp.6). Most efforts on human rights accusations are blamed on state violence and suppression of actors in the political and public arena. And there are fewer efforts put to women human rights violations in times of war even within the domestic household and therefore administering justice to women becomes a challenging catastrophe to national justice systems.

States may not be able to do the implementation since gender based violence (violence against women) is considered as a lesser priority as opposed to poverty, peace stability among others.

Secondly the Human rights framework has challenged the violation of women rights in both the public and private sphere with the influence of the International law. At the national level, the government carries the responsibility of implementation. This has also helped individuals and societies to look beyond and analyze the structural gender inequalities that exist in the society showing that gender based violence is not something that is natural but also exists in the political social, economic and political arenas.

The other strength has been to challenge the traditional ideas of what human rights entails to include (scope of human rights). For example the concepts of humanity and the gay- lesbian rights are absolutely facing human rights violations even when Article 17(1) and (2) of ICCPR “obliges governments to protect individuals against unlawful interference with their privacy” (suplveda, etal 2004). It should be noted that the human rights framework has brought forward educative debates of minority groups but due to racism, traditional beliefs, homophobia and sexism; homosexuality has remained a challenge to global human rights framework. Bedi, s. shows how the state has practiced rights inequality- “considering the argument of sexual freedom, the conventional also accounts that prohibiting sex improperly discriminates on the basis of sex or sexual orientation. A law mandating racial segregation is problematic as it evokes race or discriminates against an identity group. It violates ones right equal treatment” (Bedi, 2009, pp.2)

Therefore as human rights activists, there is a need to be reminded to use the framework and put in mind that there is failure to incorporate multicultural experiences of gays, lesbians, transgenders indigenous people other minority groups. In this case human rights frame work remains unequally practiced. A case in point is the “Anti homosexually Bill” in Uganda that proposes death sentence of aggravated homosexuality acts.

The human rights framework has opened wide doors for women to participate in political spaces and legal structures. Instances include defining theories that place women at the centre of freedom to speak about discrimination, violence and women rights. Long ago before the women's movement came into force, gender based violence and other women human rights violations were not considered in the political sphere but now women feminists have combined efforts in a global voice with the help of international law to fight injustices such as rape, women trafficking and sexual violent assaults.

However the limitation to this is that the principle of universality has not been widely and equally practiced by political governments and is only understood and used by elites who are likely to make human rights a monopoly. The relative achievements of human rights “depends on the functionality of the country's legal sytem, the country's judicial and political openness and country's cultural context” (Fortman, 2006). This is possible because elites hold powers and resources in the government. Therefore this calls for an effective analysis of the concept of universality and its implications in the human rights framework.

The human rights framework has therefore been a great advantage in bringing to light gender based violent actions through the facilitation of political engagements with governments, lobbying, advocacy and mobilizations through the global technologies and networks and documentation of human rights interest stories of gender based violence in times of war. The issue of gender based violence has moved from being invisible to being embraced in the human right programmes by state parties, human rights organizations and individuals. The framework has also driven demand of concrete accountability borne by the governments.

Human Rights framework however still faces two -three important aspects such as impunity and implementation means. This needs to be incorporated in the framework especially by institutions working for peace, social justice and development of marginalized groups i.e women and girls whose rights are not respected and protect in times of war. Despite all the resources that have been injected to expose human rights violations, gender based violence continue to be exposed than being prohibited. Wars continue to be perpetuated and the culture of violence against women evolves from time to time (examples include violence in Goma, Sudan, Democratic republic of Congo). It's through the human rights framework that gender based violence can be analyzed if political and social justice is to be administered.

The successful stories of the human rights paradigm indicate that there is strong will to put women issues especially gender based violence into the legal system usually with the help of lobbying for an “international human rights document”. But the fact that the political hierarchy is male dominated; the legislation may not have an immediate effect on solving the situations of women rights violations.

But also most women feminists or movements have been largely engaged within the UN human rights framework which may not be able to directly effect social change especially in war torn economies where women still suffer violence. Therefore the question remains that how can we be able to use the human rights framework to unleash injustices in the social, cultural, economical and political arenas and uphold those rights that are already realized to have a transformed- equal social justice system?

Lastly the human rights discourse has been strengthened by UN language of human rights in regards to combating gender based violence. The gender concept is widely used in most UN documents. Those UN agencies that have not yet incorporated gender have given mandate to national government ministries and human rights organization to carry out the responsibility of giving exposure to women rights. But what actually does this human rights “strong and compelling language mean to world's poor?”(Fortman, 2006) where there is a continous war culture of women's violence. The limitation remains in the budgetary and lack of resource allocations to effectively carry out the tasks of reducing and eradicating gender based violence.

Conclusively, I can say that the human rights framework has done great in making sure that gender based violence in conflict areas moves from being an individual problem to making it more visible as a massive social problem. Gender based violence like sexual abuse, rape used as a weapon of war which were hidden and quieted in the private sphere have all been brought to discussion through the human rights instruments at local, national and international heights. This calls for a time to work together and end the revolving cycle of gender based violence through effective implementation of the human rights instruments.
Gender based violence in conflict affected areas/ war can only come to an end if human rights are respected, protected and fulfilled. Therefore as human rights activists we have to analyze the cultural, social, economic and political relations within societies in order to address the issue of gender based violence. Thus human rights framework need to be used to advance the successes of women human rights in the social–cultural, political and economical facets with a special focus on violence against women in war torn areas.


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