Gender and the limits of human rights

• The UDHR (1948) formally includes sex as a prohibited basis for discrimination
  • But “human” in human rights was implicitly male
• Early frameworks focused on civil and political rights: state violence in the public sphere
  • Torture, political imprisonment, executions; the assumed victim was male
• Much violence against women occurs in the private sphere (home, family, relationships)
  • States disclaimed responsibility: a “cultural” or “personal” matter, not a political one
  • The public/private divide placed women’s suffering outside the reach of rights

Bunch’s approaches to women’s rights as human rights

1. Women’s rights as civil and political rights
   • Take women’s specific needs into consideration as “first generation” rights
     • “Negative” rights: freedom from state interference
     • Freedom of speech, religion, assembly; right to vote; freedom from torture
   • E.g., sexual persecution should give grounds for refugee status, someone can claim free speech for defending LGBTQ+ rights but not for being LGBTQ+
2. Women’s rights as socioeconomic rights
   • Second generation rights: “positive” rights: freedom to access certain goods
     • Right to work, education, health care, and social security
   • Women’s vulnerability to violence is inseparable from economic disparities
3. Women’s rights and the law
   • Create new legal mechanisms; expand state responsibility to codify these rules
   • Recall legal positivism: we have rights because laws and institutions protect them
4. A complete feminist transformation of human rights

Discussion: Bunch’s framework

• Which of the four approaches do you find most convincing? Most limited?
• Which violations do the different frameworks cover? Which require a state actor?
• What would a “feminist transformation” of human rights actually look like in practice?
• Is there anything missing from Bunch’s framework entirely?

International law’s initial silence on sexual violence

• Legal recognition of sexual violence in conflict is recent
  • Prior to the 1990s, international criminal law was almost entirely silent on it
• The UDHR and Geneva Conventions prohibited it only indirectly
  • Subsumed under torture, cruel, inhuman, or degrading treatment
  • Not named or prosecuted as its own category
• No consensus definition of what counts as conflict-related sexual violence
• The absence of explicit criminalization had real consequences
  • Possible to prosecute only under general provisions, which rarely happened
  • The ability to eliminate a wrong is contingent on it being named

The ad hoc tribunals: ICTY and ICTR

• Atrocities documented in Yugoslavia and Rwanda prompted international outcry
• UN Security Council established two ad hoc tribunals: ICTY (1993) and ICTR (1994)
• Both tribunals extensively addressed sexual violence in their judgments
  • Including rape as a crime against humanity
  • Established important legal precedents for future prosecutions
• This created political momentum heading into ICC negotiations
  • A climate of progressive advancement in international criminal law

The ICC and the criminalization of sexual violence

• International Criminal Court (ICC): permanent international court
  • Established by the Rome Statute (1998)
  • Prosecutes individuals for genocide, crimes against humanity, and war crimes
• Sexual violence remained controversial during the drafting of the Rome Statute
• Women’s Caucus for Gender Justice successfully lobbied for an expansion of crimes
  • Detached sexual crimes from “outrages upon personal dignity”
  • Removed the implication that sexual crimes violate victims’ honor
• First time international law explicitly criminalized this range of acts

Article 7 (crimes against humanity) and Article 8 (war crimes):

rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity

Defining conflict-related sexual violence

UN definition:

“Rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, enforced sterilization, forced marriage, trafficking in persons when committed in situations of conflict for the purpose of sexual violence/exploitation and any other form of sexual violence of comparable gravity perpetrated against women, men, girls or boys that is directly or indirectly linked to a conflict.”

For discussion:

• What stands out to you about this definition?
• What might be missing?

Why does sexual violence happen in conflict?

• Not primarily about sexual desire: power, dominance, and abuse of authority
• Functions it serves:
  • Creates fear and deters resistance
  • Used as torture and reprisal
  • Destroys community ties and individual coping mechanisms
  • Can be a deliberate warfare strategy targeting group reproduction and cohesion
• Enabled by: climate of impunity, weapons, collapse of normal social constraints

Case study: Romania under Nicolae Ceaușescu

Case study: Grandmothers of the Plaza de Mayo

• Founded 1977 as a splinter group from the Mothers of the Plaza de Mayo
• Mission: locate and identify living grandchildren disappeared during Argentine dictatorship
• Children were taken from detained or killed parents and given to other families
• The forensic challenge: how do you prove biological kinship without parents?
  • Pioneered use of DNA testing and profiling to establish family relationships
  • National Genetic Data Bank systematically preserves and matches biological evidence
  • First grandchild recovered in 1984, over 50 stolen children reunited by late 1990s

The right to identity

• Convention on the Rights of the Child, Article 8 (1989):
  • Children have the right to preserve their identity, nationality, name, and family relations
  • States must restore identity if illegally deprived
• But no standalone “right to identity” exists in international law
  • CRC mandates birth registration framework, forming a baseline for legal identity
  • Anti-human trafficking conventions focus on use of identity documents for prevention

For Wednesday: Quiz 2

• Today: gender-based crimes
  • Gender gap in human rights
  • Conflict-related sexual violence
  • Reproductive coercion and the right to identity
• Wednesday: Quiz 2 at the start of class
  • Taken on Canvas, so please bring your laptop
  • Same format as Quiz 1
  • Covers material through today’s lecture
• We will then begin Part III of the course: how different factors shape state crimes
• Questions?

Final project discussion time (~25 minutes)

• Think through what we’ve talked about so far with relevance to your policy brief topic:
  • Genocide, displacement, torture, disappearances, police violence, the carceral state, etc.
  • What type of crime of the state is your case primarily about?
  • How does your case intersect with other types of crimes we have covered?
• Is the state the direct perpetrator, or does it enable, tolerate, or fail to prevent the violence?
• What is the hardest part of your case to explain using course concepts so far?
• Who is the audience you want to talk to in your brief?
  • The UN? A specific country/government? An NGO?
  • How do the suggestions you will offer change depending on the audience?