Volume 2, Issue 2
A Subject without Name-the Inclusion of Gender and the Exclusion of the Woman in Contemporary Human Rights Discourse
Daniela Nadj*

ABSTRACT:The aim of this paper is to revisit what has often been described as a watershed moment in recent feminist activism and scholarship, namely the embrace of gender-specific concerns by international human rights law and the recognition of women’s rights as human rights, which gained heightened visibility starting in the early 1990s. Gender-based violence committed in armed conflict, in particular, animated international feminist scholarship in unprecedented ways, primarily, because it was considered an obvious feminist issue, but also because feminist advocates sensed an opportunity to visibilise wartime sexual violence against women by way of international law aiming to provide legitimacy to a long marginalised phenomenon of war. In line with this development, feminist inclusion strategies, such gender mainstreaming1 that actively promote women’s visibility across the United Nations human rights machinery have assumed a central role in transforming the former absence of women from international law into part of its institutional machinery. And yet there is a sense that the triumph of gender came at a cost to women. Current feminist debates around the issue, for example, reveal a profound tension between ‘universalist feminists’, who generally endorse the jurisprudence of the tribunals and fear that any destabilisation of the female subject or critique of the law will lead to a rupturing of the perceived successes achieved and feminists advocating for critical introspection, who have mainly been sidelined from the dominant debate for fear that their concerns would lead to a renewed denial of female authenticity.2

This article aims to contribute perspective to what the visibility of gender within the international human rights machinery signifies for women in the current political and legal moment. More centrally, it questions whether the embrace of gender terminology is linked to a determination to provide legitimacy to a previously invisible subject in law, the woman. It asks whether feminism with its unequivocal lobbying for the inclusion of politically neutral terminology might have inadvertently departed from its original politics of women.

The article provides a brief definitional background of how gender terminology replaced the ‘woman’ as the preferred strategic trope for feminist legal scholars. It then charts the rise of gender in international law by reflecting on the incorporation of gender-based violence into the human rights vocabulary, a development that contributed to the heightened visibility of gender as a standalone issue. It provides some background analysis in respect of the institutionalisation and incorporation of gender-based violence into international law by charting the key stages in the recognition of women’s rights as human rights. Feminists faced significant conceptual and definitional hurdles in their attempts to actively incorporate a gender terminology into the Rome Statute. The paper then turns to the policy of gender mainstreaming, which has been described as the ‘mantra’3 of international institutions and is a technique used for addressing the legal inequalities between men and women.4 It concludes that the ubiquitous visibility of gender in contemporary human rights discourses and policies has not contributed any answers to issues, such as substantive inequality, which affect women more systematically in everyday life.

The Emergence of ‘Gender’ in Contemporary Human Rights Discourses
The use of gender terminology is ubiquitous in international human rights discourses today. It has to a large extent replaced ‘the woman’ from international legal texts. What gender stands for and why it is the preferred feminist signifier for issues relating to women is thus relevant. According to feminist historian Joan Wallach Scott, gender denotes the social organisation of the relationship between the two sexes.5 In its simplest usage, gender is a synonym for women. But rather than using the politically charged term ‘women’, 1970’s American feminists began to make usage of this trope to evoke the fundamental sense of social inequality based on distinctions around sex.

Gender carries an implicit rejection of the biological determinism inherent in the use of terms such as ‘sex’ or ‘sexual difference’. Moreover, gender stresses the relational aspect of normative definitions of femininity, a key advantage from a feminist perspective.6 As a substitute term for women, it also carries the suggestion that information about women is necessarily information about men, that one implies the study of the other. As Scott has put it ‘[t]his usage insists that the world of women is part of the world of men, created in and by it.’7
Given its focus on social relations between the sexes and its explicit rejection of biological explanations gender is understood as a cultural construct, a system of relationships that may include sex, but is not entirely determined by sex or sexuality.8 The most significant development in relation to the deployment of gender in contemporary human rights discourses, however, might be its disassociation from the politics of feminism. As Scott has put it: ‘[g]ender does not carry with it a necessary statement about inequality or power nor does it name the aggrieved and (hitherto invisible) party.’9

This, for instance, renders it distinctly different from the term ‘women’s history’, which proclaims its politics by asserting that women are valid historical subjects. Gender includes but does not name women and therefore seems to pose no critical threat to the official language of international law.10 From a feminist perspective the advantage of including the less politically charged term gender into human rights language was that it allowed for a broader conceptualisation of women’s lived realities and the emergence of an authentic female voice. This in turn was seen as paving the way for a better understanding of the specific gendered harms experienced by women in their everyday lives. The question posed here, however, is whether the omnipresent contemporary usage of gender in human rights discourse is perhaps a form of depoliticisation11 that disassociates rather than connects women’s lived realities from the political and historical powers that constitute them.

The Rise of Gender-based Violence in International Human Rights Law
One of the most notable side effects of the recognition and visibility of gender within the international human rights framework has been the realisation that gender-based violence must therefore obviously be a feminist issue, as it is a violation that affects predominantly women.12 It is also an issue that has preoccupied feminist and human rights advocates, especially and perhaps not coincidentally since the early 1990s. According to Sally Engle Merry, the invisibility of gender-based violence in international law had to do with its location within the private realm of the family and personal relationships insulating this form of violence from state scrutiny, while at the same time naturalising the practice as something inevitable.13 Similarly, Christine Chinkin has argued that the binary division in international law between the public and the private world and the conceptualisation of the former as superior to the latter has marginalised women from public life.14 It is therefore unsurprising that gender-based violence has remained hidden from view, as the family is often the site where the most severe forms of violations against women’s physical and mental integrity take place. In some contexts, the state has perpetuated the status quo by exercising power over family or privacy rights with detrimental consequences for women, having pushed certain groups even further into the margins of society.15 Crimes such as domestic violence, which disproportionately affect women, for instance, have been largely silenced by international law. According to Rhonda Copelon, for instance, the public/ private dichotomy has ensured that only the more sensationalist forms of violence, such as torture, get visibilised in international legal texts.16 Given the more systemic and intimate nature of domestic violence, which often takes place in secret, such offences are not made subjects of international law.

The inclusion of gender-based violence on the international stage would therefore not have been possible without the feminist activism of the late 1970s and early 1980s when radical strategies in relation to female oppression first began to be articulated. Constructions of sexuality began to be seen as crucial to women’s oppression-they were perceived not just as side effects of patriarchy, but rather as central to the law’s construction of the world along male lines.17 Following on from there, the key strategies of the feminist movement of the 1990s sought to dismantle the binary division between male/ female roles, to protect women’s reproductive autonomy and to incorporate violence against women into the international agenda.18 More specifically, the aim of the movement was to create international consensus about the eradication of violence against women in all societies.19 The liberalist environment of the 1990s was especially conducive to such concerns allowing feminists to embrace the ‘women’s rights-as human rights strategy’ seeking explicit recognition of gender-specific rights abuses as human rights violations.20 The Committee charged with enforcing the Convention on the Elimination of All Forms of Violence against Women (the CEDAW Committee) in General Recommendation No. 19 thus defines gender-based violence as:

‘[a] form of discrimination which seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and any other deprivations of liberty.’21

General Recommendation No. 19 itself reflected the lack of a definition of gender-based violence in the 1979 Convention of all Forms of Discrimination against Women (CEDAW), the first comprehensive treaty UN treaty to address women’s rights for the purpose of eradicating discrimination against women in all spheres of public life.22 The Recommendation was thus introduced by the CEDAW Committee as a result of widespread criticism from feminist scholars and human rights activists about the treaty’s perceived lack of concern for gender- based violence.23
In international law gender-based violence is now the most broadly accepted term used to denote differential acts of violence committed against women, given that its broad remit encompasses harms of a non-sexual nature. It has therefore largely been embraced by ‘universalist’ feminist scholars. Kelly Dawn Askin, for example, has defined gender-based violence as violence that ‘[t]argets or affects women exclusively or disproportionately primarily because of their gender.’24 Former UN Special Rapporteur on Violence against Women, Radhika Coomaraswamy, has described it as a major impediment to women’s fulfilment and enjoyment of human rights around the world, such as their participation in social and public life, which prevents the exercise of their democratic rights.25 The definition also includes violence perpetuated along socially constructed or stereotyped gender roles and it has been understood to refer to violence directed against women because they are women.

The very public nature of gender-based violence committed during the conflicts in the former Yugoslavia and Rwanda, which helped propel the issue to the very top of the feminist agenda, therefore, in many ways collided with a feminist liberal renaissance in international law. The visibility of women’s human rights issues later also allowed feminists to refocus their attentions to other types of perceived female empowerment, such as ‘mainstreaming’ strategies as a paradigmatic institutional tool for the promotion of gender justice in international law.26 It should be stressed that feminist calls for the reconceptualisation of gender-based violence as a human rights violation reflected the mindset of a majority of Western feminist activists, who in the 1990s had gained a high-profile platform for their ideas. This has, for example, been illustrated by the Violence against Women (VAW) campaign, which has sought to bring to the world's attention the multiple ways in which women face discrimination, as well as drawing attention to the physical and emotional abuse they endure in all areas of life.27 The VAW movement has been overwhelmingly successful in translating very specific violations experienced by individual women into a more general human rights discourse and it proved instrumental to the later evolution of wartime sexual violence in international criminal jurisprudence. According to Ratna Kapur the VAW campaign succeeded partly because of its ‘appeal to the victim subject’, which quickly morphed into a shared location from which women from different cultural and social contexts could speak with one voice. The victim status thus provided women with a subject that repudiated the ‘atomized, decontextualized, and ahistorical’ subject of liberal rights discourses, while offering women a unitary subject that enabled them to continue making claims based on their commonality of experience, which in turn was often portrayed as representative of the collective female experience of wartime.28

The Declaration on the Elimination of Violence Against Women (DEVAW) and the Vienna Conference

Violence against Women once again took centre stage by way of the 1992 Declaration on the Elimination of Violence against Women, which served to reiterate the UN’s institutional commitment to the cause of gender based violence. It placed violence against women firmly within the rubric of human rights and fundamental freedoms obliging states to eliminate violence perpetrated by public authorities and by private persons.29 Although lacking in binding force, it has nonetheless been described as a comprehensive document that defines violence against women broadly to encompass physical, sexual, and psychological harm or threats of harm in public or private life.30 Significantly, the Declaration names gender-based violence as a violation of human rights and an instance of sex discrimination and inequality, while attributing the roots of gender violence to historically unequal power relations between men and women based on socially constructed realities rather than on ‘natural’ or biological attributes, which have prevented the full advancement of women in society.31 Moreover, it affirms that wartime violence against women violates international human rights and international humanitarian law:

‘Violations of the human rights of women in situations of armed conflict are violations of the fundamental principles of international human rights and humanitarian law. All violations of this kind, including in particular murder, systematic rape, sexual slavery, and forced pregnancy, require a particularly effective response.’32

The Declaration provides a definition of gender-based violence, and highlights the ways in which violence against women is of relevance to each of the articles of the Women’s Convention by identifying traditional attitudes around the globe as contributing to the subordinate status of women worldwide, most typically perpetuated through prevailing gendered stereotypes, which allow gender-based violence to be maintained as a legitimate form of women’s suppression.33 In this way it addresses the gaps left by CEDAW suggesting that gender-based violence is now an integral part of the Convention. Violence against women is conceptualised as one of the crucial social mechanisms, which forces women into a subordinate position to men. It attributes the roots of gender violence to historically unequal power relations between men and women based on socially constructed realities rather than on ‘natural’ or biological attributes, which have prevented the full advancement of women in society.34 Further, the Declaration enumerates the rights and freedoms infringed through gendered violence, such as the right to equality in the family and the right to equal protection under the law. Thus, CEDAW now prohibits discrimination and disparaging treatment, including violence against women on the basis of gender, thanks to the Committee’s realisation of the importance of this matter, despite the treaty’s initial silence. The DEVAW has also proved inspirational to other treaties, such as the Inter-American Convention on Violence, which urges protection against all forms of violence against women, including sexual violence, whether committed in peacetime or in wartime, in the public sphere or in the private sphere.35 It has been especially singled out for not allowing states the discretion to invoke considerations of custom, tradition or religion as a way of justification for non-compliance with treaty obligations. In this vein, it certainly symbolises the joint effort of the international community in seeking to combat gender-based violence on a universal scale.36 Moreover, the Declaration recognises violence against women in armed conflict as a ubiquitous phenomenon of modern-day conflict and a violation of both of international human rights and international humanitarian law, thus symbolising an important step on the way towards the criminalisation of wartime sexual violence in international law.37

Given the significance of the Declaration, the year 1994 saw the universal condemnation of gender-based violence by the UN Commission on Human Rights, which culminated in the appointment of the Special Rapporteur on Violence against Women whose mandate includes the collection of information relating to violence against women, and the issuing of recommendations and measures to states to remedy the situation on the ground.38 Overwhelmingly regarded as positive developments in international law both the DEVAW and the post of the Special Rapporteur were instituted within six months of the joint appeal of governments and feminist advocates present at the 1993 Vienna Conference. It was the latter forum with its promulgation of the 1993 Vienna Declaration and Programme of Action that proved to be the pivotal moment for women’s human rights.39 The Vienna Conference demonstrated how women could organise successfully at the regional and global level to advocate on behalf of women’s rights. It also provided a forum for women's advocates to express their condemnation of gender-based violence in situations of armed conflict by calling on governments to integrate women’s rights into the mainstream of the UN system.40 The work of diverse groups of feminists who had advocated against key rights violations such as domestic violence, rape and sexual harassment, trafficking in women, forced prostitution and forced labour, as well as traditional practices such as female genital mutilation, dowry deaths, sati and other practices considered harmful to the health of women saw in the Vienna Conference the apex of their long struggle for justice.

The Rome Diplomatic Conference as the Watershed Moment for Gender
It is therefore not altogether surprising that by the time of the 1998 Rome Diplomatic Conference41 , following on from an unprecedented and sustained feminist lobbying in favour of including wartime sexual violence into the statutory framework, gender no longer seemed a controversial term. Serving as the precursor to the establishment of the International Criminal Court, the world’s first permanent international criminal court, 42 the Rome Conference highlighted how gender had become a legitimised part of the international legal vocabulary with a majority of states expressing support for the integration of gender-specific provisions. The gender debates surrounding its incorporation into the Rome Statute of the International Criminal Court reflected the strong, organised women’s movement represented by the Women’s Caucus for Gender Justice (WCGJ), whose objective was to ensure that a gender perspective would be integrated throughout the Statute.43 Women’s Caucus members were, thus, actively lobbying in their countries and capitals before participating in the PrepComs and the Rome Diplomatic Conference.44 Given that gender language had never been specifically incorporated into the statutes of the previous two ad-hoc tribunals, the International Criminal Tribunal for the Former Yugoslavia45 and the International Criminal Tribunal for Rwanda46 , feminist advocates were adamant that gender be defined in a major international treaty for the first time.

Interestingly enough and perhaps symbolic of this new found optimism in feminist thought, women’s advocates didn’t necessarily foresee that the recognition of gender as a separate identity category in Article 7(3) of the Rome Statute could become a lightening rod for conservative state parties, who held strong concerns over gender’s perceived sexual connotations. Unlike with other identity markers such as race and ethnicity, the debates surrounding the incorporation of gender drew far louder protest. From the very beginning, but especially during the negotiations, the Women’s Caucus had to deal with fierce opposition from an alliance comprising of anti-choice groups and delegations representing states where discriminatory treatment is justified through religion.47 The Women’s Caucus pushed for the term gender as opposed to sex because of the latter’s reference to the biological differences between men and women, whereas gender typically denotes the socially constructed roles of men and women.48 It similarly regarded the term ‘gender crimes’ preferable to sexual violence because of its inclusion of crimes which target men or women because of their gender roles regardless of any sexual element.49 Article 7(3) reads as follows:

‘For the purposes of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.’50

The definition was a reflection of the increasingly common use of gender in contemporary international human rights discourse and it rapidly became a substitute for women’s rights, as previously discussed. Naming crimes committed in armed conflict as gender crimes was, moreover, seen as raising increased global awareness of the sexually targeted nature of the crimes,51 which historically had been accepted as inevitable bi-products or ‘spoils of war’ and were thus synonymous with women’s invisibility in international law. Moreover, and given the tensions underlying the negotiations some feminist commentators viewed the outcome as a victory for women’s rights because the narrower terms- ‘sex’ and ‘sexual violence’ had been eschewed in favour of the term ‘gender crime’ to denote the sociological differences between men and women.52 But other observers disagreed pointing out that the definition was ‘oddly worded’, ‘circular’ and reflective of the ‘constructive ambiguity’ underlying the negotiations.53 This reflected the tension within the feminist debate between predominantly ‘universalist feminists’, who hailed the definition as a spectacular victory for women’s human rights and the more critical voices, who decried the conflation of gender and sex, the limitations of the reference to the ‘context of society,’ the potential for the exclusion of sexual orientation and the sidelining of other gender issues.54

The International Criminal Court’s gender definition is likely to have a direct impact on the kinds of cases that the court will prosecute in future, on the prosecutor’s duties, and on the protection and participation of victims and witnesses. Yet while gender is today the preferred legal strategy from a feminist perspective these debates reveal two disconcerting trends. The first concern is over the automatic association of gender with gender-based violence as a largely uncontested fact by the feminists involved in the drafting of Rome Statute. Secondly, and perhaps even more noteworthy for its absence is the woman, who has now definitively been replaced by gender without any protest by feminists, who only a decade earlier would have sought to highlight issues such as social injustice and economic deprivation through a female lens. What is most striking is that feminist advocates so readily gave up on deploying the term woman as a platform from which to argue for the greater inclusion of gender-specific concerns almost suggesting that they did not believe that this terminology could translate into legal success.

Gender Mainstreaming and the Final Institutionalisation of Gender
i) The 1995 Beijing Platform for Action

The cycle charting the institutionalisation of women’s rights as a gender-specific issue would not be complete without a reflection of the1995 FourthWorld Conference on Human Rights, which for the first time gave expression to and prioritised the term ‘gender mainstreaming’ as the mechanism to achieve gender equality.55 Gender mainstreaming has been defined by the UN Economic and Social Council as follows:

‘Mainstreaming of gender perspective is the process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in all areas and at all levels. It is a strategy for making women’s as well as men’s concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic, societal spheres so that women and men benefit equally and inequality is not perpetuated. The ultimate goal is to achieve gender equality.’56

Gender mainstreaming was identified as one of the most important mechanisms whereby to achieve the ambitious goal of formal equality for women across all United Nations agencies and non-governmental organisations. It encompasses the specific adoption of gender equality terminology; stipulating that a gender mainstreaming policy be put into place and that gender mainstreaming be uniformly implemented.57 By the time of the Beijing Conference, it was evident that the concept of ‘gender mainstreaming’ had achieved great popularity.58 It appeared throughout the lengthy Beijing Platform for Action in twelve critical area of concern, including education,59 health,60 as victims of violence,61 armed conflict,62 the economy,63 decision-making,64 and human rights.65 The Platform for Action also asked governments to promote an active and visible policy of mainstreaming a gender perspective in all its policies and programmes, so that before decisions were taken an analysis of its impact on women and men, respectively, would be made.66 According to observers, although a non-binding legal instrument, the Beijing Platform represented a global agenda for change used by women’s rights activist to advocate for reform in their respective countries.67 Given these ambitions, the Beijing Platform commitment to gender mainstreaming was taken up by other U.N. bodies, such as the U.N. Commission on the Status of Women,68 the U.N. Secretary-General, and then by the U.N. Economic and Social Council (ECOSOC), which organised a high-level panel discussion on gender mainstreaming in 1997.69 Moreover, the U.N. General Assembly has ever since been continuously encouraged to incorporate mainstreaming into all areas of its work, in particular on macroeconomic questions, operational activities for development, poverty eradication, human rights, humanitarian assistance, budgeting, disarmament, peace and security, and legal and political matters.’70 As a policy gender mainstreaming is omnipresent in the international arena today with almost all U.N. bodies and agencies having formally endorsed it.71 This suggests that this policy is to become standard practice across all of its programmes.72

However, as some feminists have ventured to argue, the way in which the concept has been deployed by U.N. agencies and treaty bodies carries problematic connotations. Dianne Otto, for example, has expressed concern that ,I>General Comment 28 (on equality between men and women) adopted by the Human Rights Committee73 in 2000 repeats gendered stereotypes rather than dismantling them.74 Thus, General Comment 28 adopts a substantive approach to women’s equality and ensures that women’s specific rights are explicitly recognised as universal. The Comment works its way through each of the ICCPR rights and aims to re-imagine the subject as a woman, thus setting out to feminise civil and political rights, as is for example evident in relation to the right to life (Art. 6), which states:

‘State parties should provide data on birth rates and on pregnancy-and childbirth-related deaths of women. Gender-disaggregated data should be provided on infant mortality rates. State parties should give information on any measures taken by the State to help women prevent unwanted pregnancies, and to ensure that they do not have to undergo life-threatening, clandestine abortions. State parties should also report on measures to protect women from practices that violate the right to life, such as female infanticide, the burning of widows and dowry killings. The Committee also wishes to have information on the particular impact on women of poverty and deprivation that may pose a threat to their lives.’75

The interpretation is certainly ground-breaking in so far as it includes the ‘sexed’ issues that the women’s rights-as human rights’ lobby has been concerned with such as backyard abortions, which have been identified as threats to the right of life. Perhaps even more significant, given international human rights law’s inferior treatment of socio-economic rights is the recognition that ‘poverty and deprivation’ may also pose a threat to women’s right to life. A woman-centric approach is moreover applied to each of the pertinent ICCPR articles, such as domestic violence (Art.7), which, significantly, is recognised as a form of torture.76 However, the Comment’s focus on women’s difference from men means that the sexualisation of gender dualisms that is ingrained in the concept of formal equality has not been adequately challenged. Indeed, all the dangers involved in including women by reference to their specificities remain emphasising women’s helplessness, rather than their agency. The effect of this is that the masculinity of the universal subject is reaffirmed, as he does not need any special enumeration of his gender-specific injuries.77 Thus, rather than dismantling gender hierarchies some of the examples of women’s specific violations, such as infanticide, the burning of widows, or dowry murders serve to resurrect protective and imperialist subjectivities. As Otto argues

‘The unresolved feminist conundrum is well illustrated: in reflecting women’s present gendered experience of human rights violations, human rights law repeats the marginalizing gender tropes that entrench and naturalise women’s inequality.’78

The irony of the situation, therefore, might be that both women’s political and economic disadvantage and women’s realisation of substantive equality are lost in the process of pressing for gender mainstreaming of women’s human rights. This has also been noted by Sari Kuovo, who has argued that while gender mainstreaming strategies can promote equality they can also destroy equality and social justice politics. Thus, ‘the sudden and passionate concern’ for women’s advancement and gender equality sometimes has very little to do with a feminist or radical social justice agenda leading to the depoliticising effects of gender and the dispersing effects of mainstreaming.79

i) U.N. Security Council Resolution 1325
Despite the feminist critique of gender mainstreaming strategies, U.N. Security Council Resolution 1325, the first ever resolution to addresses the impact of war on women and promote their contribution to conflict resolution and sustainable peace, has pursued this strategy.80 The Resolution builds on the commitments of the Beijing Declaration in calling for the inclusion of women at all decision-making levels (national and international), especially in conflict resolution mechanisms. This is in light of its concern, as stated in the Preamble, that civilians, made up predominantly of women and children, account for the vast majority of casualties during armed conflict.81 Acknowledging the absence of a female perspective in peace and reconciliation processes, Resolution 1325 identifies the need to increase female participation at all decision-making levels during the peace process, expand the role and contribution of women in U.N. field-based operations and incorporate a gender-perspective into peacekeeping operations.82 It, therefore, conceptualises a gender mainstreaming perspective in relation to conflict prevention, peace negotiations, peacekeeping operations, humanitarian assistance, post-conflict reconstruction and disarmament, demobilisation and reintegration initiatives83 and reaffirms the need to fully implement international humanitarian law and human rights law to protect women and girls from human rights abuses, including gender-based violence.84

Resolution 1325 is further significant because it marked the first time that the U.N. Security Council turned its full attention to the subject of women and armed conflict acknowledging the role of women as active agents in the negotiation and maintenance of peace agreements, thus, providing a clear legal basis for addressing the issue.85 On a symbolic level it highlighted the impact of armed conflict on women and provided high-level acknowledgment of the fact that the exclusion of women from conflict resolution is a threat to peace, while on a practical level, it triggered the immediate and ongoing attention of the U.N. to women, peace and security, by providing for ongoing U.N. Secretary-General reporting on its implementation.86 Peace negotiations and agreements have become a focus of feminist intervention because they respond to the post-Cold War proliferation of peace agreements and the use of negotiated settlements as the key mechanism by which to bring violent social conflict to an end and they therefore correspond to a new liberal, if not interventionist impulse in relation to human rights.87 Given that peace agreements serve to document agreement between warring parties in an attempt to end the conflict and establish politics as an alternative to military violence, the inclusion of women into such negotiations is an important starting point in achieving broader political, legal and social gains. The scale of the practice, today, is rather overwhelming with around as many states having peace processes and agreements as those that do not.88

The gender mainstreaming perspective of Resolution 1325 is enshrined in paragraph 8, which talks of the need to adopt a ‘gender perspective’. Christine Bell and Catherine O’Rourke have remarked that this concept goes well beyond whether the terms ‘gender’ or ‘women’ have entered an agreement to include, for instance, how civilians/combatant distinctions are dealt with, how provisions for socio-economic rights are made, what role customary law assumes to how conceptualisations of equality underpin any new constitutional order.89 Specific references to women, moreover, are a key indicator of whether a broader gender perspective has been used, or whether the agreement is constructed in terms of gender equality.90 The most startling conclusion produced by the study is the finding that out of a total number of 585 agreements, only 92 agreements, or 16 percent mentioned women.91 However, post-Resolution 1325, quantitatively, references to women have increased with the rise being more marked where the UN had a third-party role.92

But in spite of the modest increase in specific references to women in peace agreements touching on the issues raised by Resolution 1325 this is a rather unsystematic pattern, which indicates that the impact of the Resolution on substantive equality for women has been modest. In spite of the lofty ambitions underlying gender mainstreaming policies, it is therefore far from certain that these normative standards have made a difference or whether they could make a difference in future. This is therefore yet another indication of how the institutionalisation of women’s issues into human rights has not necessarily contributed to gender justice or equality at a more substantive level.

The article has sought to demonstrate that gender-based violence is today conceptualised as a universal violation of human rights law. In particular as a result of sustained feminist lobbying in the 1990s, it has turned into one of the most visible human rights causes animating feminist activists and scholars of varying persuasions and backgrounds. This has been evident most strongly in the contentious negotiations between feminist activists and state representatives around the incorporation of gender-specific terminology in the Rome Statute. The continued denial of state representatives of the existence of entrenched discrimination against women in everyday life led to the difficulties, but is also emblematic of a wider failure to address the root causes of violence against women by international legal actors. Nonetheless, the visibility of gender in international law today is undisputed and is in large part a reflection of the recognition of gender-based violence as a pressing issue of international law. In this way, traditional definitions of sexual violence against women based on women’s reproductive capacities and their specific female traits were broadened to take into account different forms of gendered violence, such as female poverty. The recognition of sexual violence as a pervasive phenomenon of armed conflict, moreover, shifted the perception that such acts occurred solely in the private realm, thus, prompting international law to acknowledge the public dimensions of gendered violence.93

Butthe enormity of these legal successes came at a cost to the feminist movement. Firstly and somewhat paradoxically, these normative developments have led to much feminist anxiety about any critique that could potentially destabilise female subjectivity, or jeopardise future rights claims for broader global recognition of women’s human rights. This has led to a persistent feminist anxiety about the fragmentation of subjectivity that could undermine certain ‘truth claims’ about women's lives. In short, feminists fear losing their new sense of power.

So-called ‘universalist feminists, who have been particularly active in lobbying the various United Nations institutions to incorporate gender-specific concerns into an overarching human rights framework have been keen to stress the commonality of women’ experiences in this way frequently essentialising women’s experiences of war, failing to recognise the often fragmented, diverse and multi-layered stories of war, which cannot be reduced to a gendered formula.94 Critical feminist scholars, such as Ratna Kapur, Doris Buss, Karen Engle and Janet Halley have thus provided an important counterpoint to the rapidly advancing criminalisation of gender-based violence in international law by warning against essentialising tendencies, which seek to paint all women with the same broad brush often leading to a reduction of women to a victim status. The argument advanced by Kapur that the exclusive reliance on the victim subject to make rights claims and slogans based on women's empowerment has some serious limitations, chief among them that the victim subject is based on gender essentialism, thus still has great purchase.95 Not only do these generalisations efface the problems, perspectives and political concerns of women who are marginalised because of their class, race, religion, ethnicity and/or sexual orientation, they also reveal a far more troubling trend, namely that women’s issues could be subsumed under a rubric of gender neutral language which neither reflects the realities of women’s lives, nor in fact resembles any of the ideas and debates that were central to the birth of the feminist legal movement in the 1970s with its emphasis on women as political agents of change. While gender therefore is omnipresent in the human rights machinery, the woman has disappeared from the scene and alongside her the fight for social justice and substantive gender equality. The rise of gender and gender-based violence as intimately linked phenomena describing women’s fate may thus in the end be altogether counterproductive to the feminist cause. It is therefore hoped that the recent worldwide outrage over the brutal gang rape and subsequent death of a woman on a Delhi bus will revive a more overtly political women’s activism that will address the question of what it means to be a woman in the contemporary moment through a social justice lens, rather than from a purely legal and, therefore, more institutionalised perspective.96

*Daniela Nadj, LLB, LLM, PhD is a graduate of Queen Mary College, Cornell University and the University of Westminster. Currently a lecturer in law at the University of Westminster, she has lectured in the following subjects: The United Nations System for the Protection of Human Rights; Human Rights Law in the United Kingdom; International Criminal Law; Public Law, EU Law, Evidence Tort and Contract Law. During the academic year 2011-2012, she acted as senior lecturer in law/LLB programme coordinator at Middlesex University, Mauritius. Daniela’s primary research interests lie in the fields of international criminal law, human rights, feminist legal theory and armed conflict. Her research focuses on international wartime sexual violence jurisprudence and its impact on women in the current political and legal moment.
1 Gender mainstreaming has been defined by the UN Economic and Social Council as follows: ‘Mainstreaming of gender perspective is the process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in all areas and at all levels. It is a strategy for making women’s as well as men’s concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic, societal spheres so that women and men benefit equally and inequality is not perpetuated. The ultimate goal is to achieve gender equality.’ United Nations (1997) ‘Report of the Economic and Social Council for 1997’, A/52/3, 18 September, 1997.
2 See for example: K. Engle, 'Feminism and its (Dis)Contents: Criminalizing Wartime Rape in Bosnia-Herzegovina', 99 American Journal of International Law (2005), 778 at 779.
3 H. Charlesworth, ‘Not Waving but Drowning: Gender Mainstreaming and Human Rights in the United Nations’, 18 Harvard Human Rights Journal (2005), 1.
4 Gender mainstreaming strategies have increasingly been deployed in UN Security Council Resolutions as a means of visibilising gender-based violence against women during armed conflict, while at the same time seeking to increase female participation in peace processes and truth and reconciliation mechanisms.For a discussion see: C. Bell & C. O’Rourke, ‘Peace Agreements or Pieces of Paper? The Impact of UNSC Resolution 1325 on Peace Processes and Their Agreements’, 59 International and Comparative Law Quarterly (October 2010), 941
5 J. Scott, ‘Gender: A Useful Category of Historical Analysis’,91 American Historical Review (1986), 1053.
6 Jane Flax has, for example, has argued that the term ‘gender relations’ captures gender as a complex set of social processes. Gender as an analytical category and social process is thus seen as relational, while gender relations are complex and unstable processes…constituted by and though interrelated parts.’ J. Flax, ‘Postmodernism and Gender Relations’, in L. Nicholson, (ed.), Feminism/Postmodernism, (New York, NY:Routledge, 1990), 44.
7 Scott (1986), 1056.
8 Ibid at1056-1057.
9 Ibid at 1056.
10 The term gender was, for example, only included in the 1995 Beijing Declaration and Platform for Action after states agreed that it was to be interpreted according to its ‘ordinary, generally accepted usage’, and that no new connotation differing from its original usage would be deployed in the Beijing Platform for Action. For a discussion, see: B. Bedont & K. Hall Martinez, ‘Ending Impunity for Gender Crimes under the International Criminal Court’, VI The Brown Journal of World Affairs (1999) 66,67;V. Oosterveldt(2005), 55, 56.
11 W. Brown, Regulating Aversion: Tolerance in an Age of Identity and Empire (Princeton, NJ: Princeton University Press, 2006), 15.
12 As Elena Loizidou states, ‘Sex and gender are always at the centre of feminist debates’. In E. Loizidou, ‘The Trouble with Rape: Gender Matters and Legal ‘Transformations’’, 7 Feminist Legal Studies (1999), 279.
13 In S. Engle Merry, Human Rights & Gender Violence, (Chicago: University of Chicago Press, 2006), 25.
14 C. Chinkin, ‘A Critique of the Public/Private Dimension’, 10 European Journal of International Law (1999), 387.
15 The disproportionately negative impact of the private/public binary in international law has also been theorised by Donna Sullivan in the United States context. She has thus argued that state intervention into private life only seems to have occurred only in relation to disempowered communities, such as black women upon whom the state had sought to impose coercive reproductive health policies in the past. Thus, race, class, ethnicity, and sexual orientation have all shaped definitions of what constitutes a family life entitled to protection against state intervention. In D. Sullivan, ‘Women’s Human Rights and the 1993 World Conference on Human Rights', 88 American Journal of International Law, (Jan. 1994), 126 at 127.
16 R. Copelon,Intimate Terror: Understanding Domestic Violence as Torture, in R. Cook Human Rights of Women: National and International Perspectives, (Philadelphia:University of Pennsylvania Press, 1994), 116.
17 See for example R. Coomaraswamy and L. Kois, ‘Women and International Human Rights Law’, in K. Askin and D. Koenig (eds.) Women and International Human Rights Law, (New York, NY: Transnational Publishers, 1999), 180.
18 One of the central preoccupations of feminist legal scholarship, as Hillary Charlesworth points out, has been the structure of international law itself, which has been built on the silence of women. This sense of inferiority has been reinforced in international law through the exclusive focus on the public sphere at the expense of the private sphere, the latter having traditionally served as the site of oppression for women. Charlesworth, thus, contrasts the male sphere of the workplace, law, economics, politics, intellectual and cultural life with the ‘home, heart and family' preserve of female identity arguing that the public/private distinction operates to obscure and justify men's domination over women. In H. Charlesworth et al., ‘Feminist Approaches to International Law’,93 American Journal of International Law, (1991), 616. The public/private distinction in international law has extensively been critiqued elsewhere, and in the early and mid 1990’s dominated international feminist scholarship. See: H. Charlesworth, ‘Human Rights as Men’s Rights’, in Peters, Wolper (eds.), Women’s Rights: Human Rights, (London: Routledge, 1995), 103-114; K. Engle, ‘After the Collapse of the Public/Private Distinction: Strategizing Women’s Rights’, in D. Dallmeyer (ed.) Reconceiving Reality: Women and International Law, 143-157; F. Olsen, ‘International Law: Feminist Critiques of the Public/Private Distinctions’, in Reconceiving Reality: Women and International Law, 157-171; C. Romany, State Responsibility Goes Private: A Feminist Critique of the Public/ Private Distinction in International Human Rights Law, in R. Cook (ed.) Human Rights of Women, University of Pennsylvania Press, (1994), 85-116.
19 See Coomaraswamy (1999) at 180.
20 C. Bunch ‘Women’s Human Rights as Human Rights: Toward a Re-Vision of Human Rights’, 12 Human Rights Quarterly, (1990); for a critique see D. Otto, ‘Holding Up Half the Sky but for Whose Benefit? A Critical Analysis of the Fourth World Conference on Women', 6 Australian Feminist Law Journal (1996), 7.
21 United Nations Committee on the Elimination of all Forms of Discrimination against Women, General Recommendation No.19, U.N. Doc A/47/38 (Eleventh session, 1992). [Hereinafter General Recommendation No.19], at para.1.
22 CEDAW is one of six UN Conventions that have been widely ratified and are monitored regularly by the CEDAW Committee. As on one of six conventions forming the core of the human rights system, it has been firmly dedicated to the principle of universalism, or the idea of ‘minimal’ standards of human dignity that must be protected in all societies. See: Convention on the Elimination of all Forms of Violence against Women (CEDAW), 1249 U.N.T.S. 13, 19 ILM 33 (1980), adopted by GA. Res. 180 (XXXIV) (18 Dec. 1979), entered into force: 3. Sept. 1981
23 For a critique see: S Zearfoss, ‘The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable or Reactionary?’ 12 Michigan Journal of International Law, (1997), 912.
24 K. Askin, & D. Koenig, Women and International Human Rights Law (New York, NY: Transnational Publishers, 1999), 42.
25 R. Coomaraswamy & L. Kois, <.i>Women and International Human Rights Law, in K. Askin & D. Koenig, Women and International Human Rights Law, (Ardsley, New York: Transnational Publishers, 1999), 178.
26 The Beijing Declaration and Platform for Action, adopted at the Fourth World Conference on Women in Beijing in 1995 established gender mainstreaming as ‘the global strategy for promoting gender equality’. See Gender Mainstreaming: An Overview (DAW/OSAGI, New York, 2001) and Gender Mainstreaming: Strategy for Gender Equality (New York, OSAGI, 2001). At the United Nations, gender mainstreaming was created through the adoption of the Economic and Social Council’s (ECOSOC) Agreed Conclusions, on gender mainstreaming in 1997 and through the Secretary-General’s communication to management the same year. The ECOSOC Agreed Conclusions gave the UN-women centred institutions-the intergovernmental Commission on the Status of Women and the Secretariat institutions, the Division for the Advancement of Women and the Office of the Special Advisor on Women’s Advancement and Gender Issues-the mandate to develop, initiate and promote UN gender mainstreaming. The ECOSOC Agreed Conclusions also stressed that gender mainstreaming is a system-wide and broad based strategy. In short, equality between the sexes should no longer be addressed as a separate women’s issue, but the promotion of equality should be part of all UN activities. See ECOSOC Agreed Conclusions 1992.
27 See for example: C. Bunch, ‘Transforming Human Rights from a Feminist Perspective’, in J. Peters and A. Wolper (eds.), Women's Rights, Human Rights: International Feminist Perspectives (New York, NY: Routledge, 1995), 11 (this article discusses widespread violence against women);R. Cook, ‘International Human Rights and Women’s Reproductive Health’, in Peters and Wolper (eds.), (1995), 256 (This article discusses the causes and effects of female genital mutilation); I. Gunning, ‘Arrogant Perception, World-Travelling and Multicultural Feminism: The Case of Female Genital Surgeries’, 23 Columbia HumanRights Law Review (1991-92), 189; R. Copelon, ‘Recognising the Egregious in the Everyday: Domestic Violence as Torture, 25 Columbia Human Rights Law Review, (1994), 291, D. Otto, ‘Violence Against Women: Something Other than a Human Rights Violation?’, 1 Australian Feminist Law Journal (1993), 159,. For an excellent critique of the VAW discourse: see: R. Kapur, ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native Subject” in International/Post-Colonial Feminist Legal Politics', 15 Harvard Human Rights Journal, (2002), 1. Also see: V. Nesiah, ‘Toward a Feminist Internationality: A Critique of US Feminist Legal Scholarship’, 16(1) Harvard Women’s Law Journal (1995), 32
28 In R. Kapur, 'The Tragedy of Victimization Rhetoric: Resurrecting the “Native Subject” in International/Post-Colonial Feminist Legal Politics', 15 Harvard Human Rights Journal, (2002), 1.
29 United Nations Committee on the Elimination of all Forms of Discrimination against Women, General Recommendation No. 19, U.N. Doc A/47/38 (Eleventh session, 1992).[Hereinafter General Recommendation, No.19].
30 Merry Engle (2006), at 23.
31 General Recommendation No.19, Preamble. According to Engle Merry, this statement ‘[p]laced violence against women squarely within the rubric of human rights and fundamental freedoms’ and it made clear that states would be obliged to eliminate violence perpetrated by public officials or authorities , as well as private actors. See: Engle Merry (2006), at 21. On Otto’s view, moreover, the CEDAW framework has by way of these General Recommendations strengthened the substantive equality framework that advance then project of ‘re-imagination’ of women’s rights by further releasing CEDAW’s subject from comparison with men.See: Otto (2006) at 340.
32 Vienna Declaration and Programme of Action, part.II, para. 38.
33 General Recommendation 19 defines gender-based violence as a form of discrimination that ‘seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men.’ Gender-based violence is violence directed against a woman ‘because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and any other deprivations of liberty.’ General Recommendation, No.19, at para. 1.
34 General Recommendation No.19, Preamble. According to Engle Merry, this statement ‘[p]laced violence against women squarely within the rubric of human rights and fundamental freedoms’ and it made clear that states would be obliged to eliminate violence perpetrated by public officials or authorities , as well as private actors. See: Engle Merry (2006), at 21. On Otto’s view, moreover, the CEDAW framework has by way of these General Recommendations strengthened the substantive equality framework that advance then project of ‘re-imagination’ of women’s rights by further releasing CEDAW’s subject from comparison with men.A further example Otto provides is of General Recommendation 16, which urges State parties to recognise and value women’s unpaid contributions and makes it clear that the Committee considers unpaid wok in family enterprises to be a form of exploitation of women contrary to CEDAW. See: Otto (2006) at 340.
35 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, adopted by the General Assembly of the OAS (9 June, 1994), Doc. OEA/ Ser.P AG/doc. 3115/94 rev. 2 (commonly referred to either as the Convention of Belém do Para, or the Inter-American Convention against Violence).
36 As she has put it, ‘The recognition that violence against women is a social creation allows the freedom to challenge its use and suggest alternative plans and programs for its elimination. It grants opportunities to create a new history in which violence against women would be condemned and not recognized as an inevitable and unchangeable consequence of gender relations.’ See Coomaraswamy (1999) at 177.
37 Vienna Declaration and Programme of Action, part.II, para. 38.
38 The Special Rapporteur forms part of the special procedures under the newly established Human Rights Council. For a recent overview of the work of the Special Rapporteur on Violence against Women, its Causes and Consequences,see: ’15 Years of the United Nations Special Rapporteur on Violence Against Women (1994-2009)-A Critical Review', Available at: http://www2.ohchr.org/english/issues/women/rapporteur/docs/15YearReviewofVAWMandate.pdf; (last accessed in April, 2011). For a discussion of the key roles inherent in the post, see: H. Charlesworth & C.Chinkin, The Boundaries of International Law, (Manchester: Manchester University Press, 2000), 149-150.
39 The concluding document formally recognises the human rights of women as ‘an inalienable integral and indivisible part of human rights.’ General Assembly A/CONF. 157/23 World Conference on Human Rights, Vienna Declaration and Programme of Action, adopted at the World Conference on Human Rights in Vienna, U.N. Doc. A/CONF. 157/23 (12 July, 1993), at para. 18. Available at: www.unhchr.ch/huridocda/huridoca.nsf/(symbol)/A.CONF.157.23.En?OpenDocument (last accessed in May, 2011).
40 Beijing Declaration and Platform for Action, Fourth World Conference on Women, A/CONF.177/20 (1995) and A/CONF.177/20/Add.1 (1995) (15.Sept, 1995).
41 The Preparatory Commission and Assembly of State Parties [hereinafter PrepComI] conducted the drafting and promulgation of the ICC Rules of Procedure and Evidence and the ICC Elements of Crime. For an extensive critical feminist overview of this process, see: Halley (2008-2009), at 18.
42 The treaty to establish the ICC was adopted in Rome on July 17, 1998 with the affirmative vote of 120 countries at the ‘Rome Conference’. See: The Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998, U.N. Doc. A/CONF. 183/9 (1998), entered into force on July 1, 2002. [hereinafter the Rome Statute].
43 This was an alliance of feminist legal activists and scholars mostly composed of Canadian and U.S. representatives. They were part of a larger, yet loosely knit global campaign for women’s human rights, which identified the 1993 Vienna World Conference on Human Rights as a target for grassroots organising on behalf of women’s human rights. Counting about 200 affiliates at the time the Conference began, its overarching aim was to transform existing human rights discoursesthrough the integration of women’s rights. It thus adopted a consolidated and coherent platform for reform and lobbied hard in the Rome Statute negotiations. Fora discussion see: Bedont&Hall-Martinez (1999), 66. As Janet Halley has argued, although a large number of NGOs were involved in the Prep ComI, the WCGJ, as the only nominally women’s or feminist organisations successfully became their coalition leader. As Halley points out, this alone is evidence that it mastered the ‘behavioral codes’ that gave some NGOs legitimacy. For a critical discussion of its activities, see Halley (2008-2009), at 22, 23.
44 Bedont & Hall-Martinez (1999), 66.
45 An overview of the composition, mandate and structure of the court is available at: www.icty.org.
46 An overview of the Rwanda Tribunal is available at: www.ictr.org.
47 These delegations included the Vatican and a core group of Islamic states, who were hostile to the idea of adopting the concept of gender when addressing gender crimes.Ibid at, 67. See also: V. Oosterveldt, ‘Sexual Slavery and the International Criminal Court: Advancing International Law’, 25 Michigan Journal of International Law, (2003), 605.
48 Oosterveldt (2005), 55, 56.
49 But some Arab states, for example, objected to the term ‘gender’ claiming that it may be understood to include sexual orientation. Such positions also served to justify obstructions on many provisions throughout the statute which promoted women’s rights. The dispute regarding terminology, thus, threatened the inclusion of certain gender crimes, of a non-discriminations clause, and of special protective measures under the procedural provisions.In Bedont & Hall- Martinez (1999), 67.
50 Art. 7(3) Rome Statute.
51 For a discussion, see: Bedont & Hall Martinez,(1999), 66;Oosterveldt(2005), 55, 56.
51 Art. 7(3) Rome Statute.
52 Bedont & Hall-Martinez (1999), 65-85. For a discussion on the conceptual differences between ‘gender’ and ‘sex crimes’, moreover, see: I. Skjelsbaek, ‘Sexual Violence and War: Mapping out a Complex Relationship’, 7 European Journal of International Relations (2001), 212.
53 Oosterveldt, (2005), 71.
54 Charlesworth and Chinkin, for example, argue that the phrase presents gender as an issue of biology rather than social construction, and that the definition therefore has limited transformative edge. They fault the definition’s lack of attention to aspects of social relations that are culturally contingent and without a foundation in biological necessity, as use of the term ‘gender’ should do. In H. Charlesworth; C. Chinkin, The Boundaries of International Law, (Manchester: Manchester University Press, 2000), 335.
55 For an in-depth discussion of the 1995 Beijing Platform for Action, see: C. Moser & A. Moser, ‘Gender Mainstreaming since Beijing: A review of Success and Limitations in International Institutions’ 13 (2) Gender and Development, (July, 2005), 11.
56 United Nations (1997) ‘Report of the Economic and Social Council for 1997’, A/52/3, 18 September, 1997.
57 Moser & Moser (2005), at 11.
58 In H. Charlesworth, ‘Not Waving but Drowning: Gender Mainstreaming and Human Rights in the United Nations’, 18 Harvard Human Rights Journal (2005), 1 at 3.
59 See Beijing Declaration and Platform for Action,1 Report of the Fourth World Conference on Women, Beijing 4-15 September, 1995, U.N. Doc A/CONF.177/REV.1, UN Sales No. 96 IV.13 (1996), at para. 79.
60 At para. 105.
61 Ibid at para, 123
62 Ibid at para. 141.
63 Ibid at para. 164.
64 Ibid at para. 189.
65 Ibid at para. 229.
66 This wording appears throughout the Beijing paragraphs.
67 V. Oosterveldt, (2005), at 82.
68 Foreign & Commonwealth Office (U.K.), Inclusive Government: Mainstreaming Gender into Foreign Policy (2004), cited in Charlesworth (2005), at 3.
69 Provisional Summary Record of the 20th Meeting, U.N. ESCOR, 1997 Substantive Sess., U.N. Doc.A/52/3/Rev. 1 (1997).
70 Report of the Economic and Social Council for the Year 1997, U.N. GAOR, 52nd Sess., Supp. No.3, at 24, U.N. Doc. A/52/3 Rev.1 (1997).
71 The gender policy of the World Health Organisation (WHO), for instance states that the ‘WHO, will as a matter of policy and good public health practice, integrate gender considerations in all facets of its work.’ See: WHO Gender Policy: Integrating Gender Perspectives in the Work of WHO 1 (2002). Cited in Charlesworth (2005) at 5.
72 This has been similarly reiterated across various U.N. mission statements, such as the U.N. Development Programme (UNDP), U.N. Educational, Scientific and Cultural Organization (UNESCO), the Food and Agricultural Organization (FAO), the World Bank, and the International Labour Organization (ILO). Moreover, gender mainstreaming is also firmly entrenched inside the European Union, and the Organization for Security and Cooperation in Europe and the Commonwealth. Ibid at 6.
73 The Human Rights Committee is the body responsible for monitoring the International Covenant on Civil and Political Rights (ICCPR). For an overview of the work of the Committee, see the website of the Office of the United Nations High Commissioner for Human Rights. Availlable at: http://www2.ohchr.org/english/bodies/hrc/index.htm. (last accessed in July, 2011).
74 Human Rights Committee, ‘General Comment 28’ (29 March 2000), UN Doc.CCPR/C/21/Rev. 1/Add.10.Cited in Otto (2006), at 348.
75 Human Rights Committee, General Comment No 28, reprinted in Otto (2005), at 349.
76 Moreover, a husband’s marital powers to restrict women’s freedom of movement (Article 12) constitutes a violation of the right to freedom of movement, and making the exercise of reproductive rights contingent upon a husband’s authorisation is seen as a violation of the right to privacy (Article 17). The Human Rights Committee has consistently followed up the adoption of General Comment 28 by questioning state parties about issues such as unsafe abortions, domestic violence, stereotyped gender attitudes and gender discrimination in the enjoyment of rights during its examination of States Parties’ reports. In Otto (2005) at 349.
77 Ibid at 350.
78 Ibid.
79 S. Kouvo, ‘The United Nations and Gender Mainstreaming: Limits and Possibilities’, in D. Buss and A. Manji, International Law: Modern Feminist Approaches: (Oxford and Portland, ON: Hart, 2006), 237.
80 United Nations Security Council Resolution 1325 (S/Res/1325)on Women, Peace and Security, adopted by the Security Council at its 4213th meeting, 31 October 2000.S/Res/1325 (2000). [hereinafter UN Resolution 1325].
81 The Preamble also expresses concern for refugees and internally displaced persons, as they are increasingly targeted by combatants and armed elements. See: S.C. Resolution 1325, Preamble.
82 Ibid at paras. 1-5.
83 Resolution 1325 has been described as a ‘thematic’ resolution best understood as a Chapter VI UN Charter non-binding resolution. Its legal authority was enhanced by the fact that it was passed unanimously, and that the resolution uses the language of obligation. For the status and nature of the Resolution, see: C. Bell & C. O’Rourke, ‘Peace Agreements or Pieces of Paper? The Impact of UNSC Resolution 1325 on Peace Processes and Their Agreements’, 59 International and Comparative Law Quarterly (October 2010), 941 at 943. For the interplay between UN Security Council Resolution 1325 and CEDAW, see ‘Women, Peace and Security: CEDAW and Security Council Resolution 1325: A Quick Guide.’ Available at: http://www.unrol.org/files/CEDAWandUNSCR1325_eng.pdf. (Last accessed in June, 2011).
84 SC Res 1325, at paras. 9, 10, 11 and 12.
85 Ibid 943.
86 SC Res. 1325, at para. 17.
87 Bell & O’Rourke (2010), 946.
88 Figures provided by the authors show that before the adoption of Resolution 1325, 68% percent of a total of 399 peace agreements of a total of 585 peace agreements entered into between 1 January 1990 and 1 May 2010 were signed, while after the Resolution, 32% or 186 agreements were signed. Ibid at 955, 956.
89 Bell & O’Rourke (20100), 945.
90 They make this determination by deploying a quantitative analysis of the number counts of specific references made to women in peace agreements. This helps them assess whether the ‘gender perspective’ mandated by the Resolution has been adopted. Ibid at 945, 946.
91 As the authors make explicit, this figure includes all references to women, including those which limited rather than furthered equality, and those with only small provisions. Ibid at 955.
92 Thus, when agreements mentioning women were disaggregated with reference to the timing of the Resolution 1325, 42 agreements mentioning women were reached before Resolution 1325 was passed constituting 11 percent of all agreements signed before 1325, while 50 agreements mentioning women were reached after Resolution 1325 was passed, constituting 27 percent of all agreements signed after Resolution 1325. The results thus indicate a significant increase in references to women in peace agreements after Resolution 1325 was passed. Ibid at 956.
93 Beijing Declaration and Platform for Action, Fourth World Conference on Women, A/CONF.177/20 (1995) and A/CONF.177/20/Add.1 (1995) (15.Sept, 1995) at: Section E: Women and Armed Conflict Diagnosis.
94 Prominent US feminist Catherine MacKinnon has in many ways been at the forefront of this universalising tendency acting as the spokeswoman for women victims of war, claiming to have special knowledge of how war impacts women due to her standpoint as a woman, albeit a privileged Western woman with no first –hand experience of armed conflict. For some of Mac Kinnon’s most polemic reflections on the Yugoslav War, see: Catherine Mac Kinnon, ‘Rape, Genocide and Women’s Human Rights’, in A. Stiglmayer, Mass Rape: The War against Women in Bosnia-Herzegovina (Lincoln, NA: University of Nebraska Press, 1994), at 183.
95 Ibid at 6 and 7.
96 C. Jones, ‘Indian Victim of Gang Rape dies in Hospital in Singapore’, (The Guardian, Friday, December 28th, 2012). Available at: http://www.guardian.co.uk/world/2012/dec/28/indian-gang-rape-dies-singapore (last accessed in December, 2012).