Daniela Nadj^* Introduction
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:


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:


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:


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:


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:


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 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.

Conclusion
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