Sex and International Tribunals. Chiseche Salome Mibenge
law narrative in which African men, women, and children suffer (colonial) persecution as a universal or monolithic experience.
CERD is one of several thematic human rights instruments expanding on a specific area of discrimination referred to broadly by the International Bill of Rights. It is rooted in the fundamental equality principle of the International Bill of Rights, although it focuses exclusively on the prohibition of discrimination on the grounds of race, color, descent, and national or ethnic origin (CERD, art. 1). Like the Banjul Charter, CERD is located in social and political structures, such as apartheid and segregation, that led to wide-scale racial discrimination. However, as race is taken as the single category axis, no effort is taken to investigate the ways in which racial discrimination combines with such intersecting features as caste, class, gender, and religion. In this way, CERD could fail to effectively protect, for example, Dalit Christians in India, Malaysians with Chinese ancestry, or African American women from discrimination in the workforce or school system. There is a uniformity assumed in groups targeted for racial discrimination but no attempt to disaggregate these groups in order to see how multiple identities might exacerbate or mitigate discrimination.
The Banjul Charter and CERD made substantial advances from their precedent in the first tier of human rights, the International Bill of Rights. They provide clearer definitions of discrimination, and while they do not refute the universality of human rights, they deny any uniformity in the ways in which freedoms are enjoyed and denied. In the case of Banjul, rights are placed in the context of African culture, history, and politics. CERD focuses on specific groups who suffer discrimination on the grounds of race and the political regimes that make widespread racism possible. Banjul and CERD begin the task of disaggregating victims of discrimination; however, like the International Bill of Rights, they fail to expose gender-based discrimination as a pervasive human rights violation.
Second Tier
The advent of the Convention on the Elimination of All Forms of Discrimination Against Women (1978) (CEDAW) represents the evolution from first to second tier instruments marked by the prominent location of women’s rights in human rights law. CEDAW, the central second tier instrument, made several bold moves away from the approach of the International Bill of Rights to eradicating gender inequality and discrimination. It provides an important substantive definition of discrimination against women as follows: “Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field” (art. 1).
The indivisibility of economic, social, and cultural rights from civil and political rights is affirmed by this definition, and although the term sex rather than gender is used, CEDAW does not underestimate the socially constructed gender roles and expectations that constrain women in their enjoyment of human rights. CEDAW urges states to end prejudices and harmful stereotypes of women based on the idea of their inferiority in all spheres of life, specifically in the field of education (art. 5 and 10[c]). In a revolutionary step revealing its recognition of the unevenness of the playing field between men and women in the enjoyment of their rights, CEDAW provides for temporary special measures such as affirmative action to facilitate women’s attainment of gender equality with men (art. 4).7
Despite its status as the International Women’s Bill of Rights, CEDAW has not escaped criticism for maintaining elements of the formal equality approach to attaining gender equality, particularly with respect to the right to employment and participation in political life and omissions relating to forms of gender-based violence, such as domestic violence. CEDAW calls for women’s equal participation in the workforce and the political realm, areas traditionally dominated by male employers and employees, without addressing hostile hegemonic responses such as sexual harassment. Sexual harassment was not acknowledged as a human rights abuse in CEDAW’s narrative on women and their enjoyment of human rights, despite it being a long-standing barrier for many women to enter, excel, and be retained in the workforce or in political life. And indeed, women who experience harassment from subordinates, peers, and superiors may have no option but to opt out of a hostile work environment. This “free choice” is not far removed from the “voluntary” decision taken by Prosecutor Aimable’s victims to opt out of the justice process in Rwanda. Human rights instruments may grant equal rights to men and women but then leave women ill-equipped to navigate the hostile repercussions from colleagues, family members, governmental authorities, and others that constrain them from fully realizing their rights.
CEDAW provides extensive protection for women as a unitary and universal group. However, it is limited in its efforts to acknowledge that within the universal woman group there are differences that can increase vulnerability to human rights abuse. It restricts this recognition to married women, rural women, prostitutes, and trafficked women (art. 6, 14, and 16). The selection is in its own way a caricature of the different roles that women may play in a society and may even be understood to suggest that a married woman, for example, cannot also be both a prostitute and a rural woman. The complexities of women’s multiple identities are far from encompassed by first and second tier instruments. These groups identified by CEDAW inarguably require special attention; however, their inclusion cannot be justified when migrant women, domestic workers, displaced women, LGBT (lesbian, gay, bisexual, and transgender) women, disabled women, women living with HIV/AIDS, refugee women, and other groups of women are not considered.
With regard to CEDAW’s reference to prostitutes and trafficked women, in particular, the failure to address the intersection of gender discrimination with other bases of discrimination, in particular race discrimination, weakens any protection measures. The international traffic in women is in many cases embedded with beliefs in the racial inferiority of women, whether they are trafficked Slavic women being received in the Netherlands, Filipino women in the United States, Korean women in Japan, Senegalese women in Spain, or Albanian women in Italy. In order for states to respond effectively (and not only with the arrest and/or deportation of prostitutes and trafficked women), international norms that recognize the intersecting and complex issues that lead to violations of the rights of women must guide them.
A founding principle of the women-of-color movement states that the struggle against patriarchy is linked to the struggle against all forms of subordination, and therefore all forms and patterns of oppression and subordination are interlocking and mutually reinforcing.8 Similarly, the theories of Third World feminists have insisted on the complex interrelationships between feminist, antiracist, and nationalist struggles (Ferguson 2003, quoted in Anghie 2008: 46). CEDAW’s narrative of discrimination against women and inequality suggests that the subordination of women on the grounds of sex and gender occurs along a single category axis. Kimberlé Crenshaw argues that this axis “erases black women” in the conceptualization, identification, and remediation of race and sex discrimination by limiting inquiry to the experiences of otherwise privileged members of the group (1989: 139–40). Crenshaw points out that this approach, when applied to feminist theory and antiracist politics analysis, creates a paradigm of sex discrimination that tends to be based on the experiences of white middle-class women while the model of race discrimination tends to be based on the experience of black middle-class men (ibid.: 151).
The Human Rights Committee (HRC) and the CERD Committee are committees for the ICCPR and the CERD, respectively. The HRC was established to monitor the implementation of the ICCPR, and the CERD Committee monitors implementation of the CERD. The General Comments passed by the HRC and the CERD Committee are widely accepted as interpretative sources of human rights substantive law, and within my trilevel framework, their comments represent the most (gender) developed spectrum of the second tier of human rights instruments.
However, the foremost comments made by the HRC and the CERD Committee neglected to put gender into the interpretation of their respective conventions. Like the first tier instruments before them, the treaty bodies were criticized for failing to recognize that gender adds a significant dimension when defining the substantive content of individual rights or that it should affect the choice of methods that must be adopted by states to ensure that all individuals within their jurisdiction enjoy those rights equally (Byrnes 1988: