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Women and Children: The Cutting Edge of International Law

Published online by Cambridge University Press:  20 January 2017

Radhika Coomaraswamy*
Affiliation:
I want to thank Suriya Wickremesinghe, Kumari Jayawardens, Vasuki Nesiah, Neloufer de Mel, Vijay Nargaraj, Sonali Deriniyagala, José Alvarez, Philip Alston, Gráinne de Búrca, Nikki Lacey, David Garland, Sally Merry, and Madhuri Menon for their advice, comments, and criticisms. However, the point of view expressed in this speech is strictly my own

Abstract

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Type
Sixteenth Annual Grotius Lecture
Copyright
Copyright © American Society of International Law 2015

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References

* This lecture will also be published in the American University International Law Review, forthcoming 2015.

1 Personal communication, July 12, 2012.

2 Jean-Pierre Bemba Gombo (Bemba) was the head of the Movement for the Liberation of Congo (MLC). The MLC went into Congo in 2002 and has been accused of committing war crimes and crimes against humanity. Bemba has been indicted by the ICC. Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08.

3 For a full description, see Oscar Schachter, International Law in Theory and Practice (1995).

4 Sheeran, Scott, The Relationship of International Human Rights and General International Law: Hermeneutic Constraint, or Pushing the Boundaries?, in Handbook of International Human Rights Law 80 (Sheeran, Scott & Rodley, Nigel eds., 2013)Google Scholar.

5 See Schachter, supra note 3, chapter 1.

6 José E. Alvarez, International Organizations as Lawmakers (2005), http://legal.un.org/avl/ls/Alvarez_IO.html.

7 CEDAW art. 4 (1979).

8 Id. art. 5.

9 Id. art. 2.

10 During the 1990s, especially after the wars in Bosnia and Rwanda, there was a great deal of activism around issues related to women and armed conflict, and to children and armed conflict. Many women were crucial for this activism, although their perspectives greatly differed. Catherine McKinnon (who helped develop the legal concepts in this area), Charlotte Bunch, Jessica Newirth, Sunila Abeyesekere, Sylvia Pimental, Heisoo Shin, and Florence Butegwa were the leading international advocates.

11 There are 187 ratifications of CEDAW and 193 ratifications of the Convention on the Rights of the Child (CRC).

12 See Riddle, Jennifer, Making CEDAW Universal: A Critique of CEDAW’s Reservation Regime Under Article 28 and the Effectiveness of the Reporting Process, 34 Geo. Int’l L. Rev. 605 (20022003)Google Scholar.

13 Id.

14 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 I.C.J. 15 (May 28).

15 Report of the Special Rapporteuron Violence Against Women to the United Nations Human Rights Commission, Annex I, 2003.

16 On a visit to an unnamed country, I was informed upon arrival that comprehensive trafficking legislation had been adopted and a high-powered task force had been set up two years earlier. When I met with the Committee, however, they informed me rather meekly that this was the first time they had met.

17 For an interesting discussion of feminist viewpoints on the Law and Economics Movement, see Feminism Confronts Homo Economicus (M.A. Fineman et al. eds., 2005).

18 Schachter, supra note 3.

19 The two major international covenants—the Covenant on Civil and Political Rights and the Covenant on Economic Social and Cultural Rights—were the main focus of work at the UN Human Rights Commission.

20 In 1967 the Economic and Social Council called on the UN Human Rights Commission to become “interventionist” with regard to apartheid. Res. 1235 (XL11), 42 UN ESCOR Supp. (No. 1) at 17, UN Doc. E/4393 (1967), http://www1.umn.edu/humanrts/procedures/1235.html.

21 In 1980, in response to what was taking place in Chile, the UN Human Rights Commission set up the Working Group on Disappearances. The initial mandate was for one year.

22 In Vertido v. Philippines, the CEDAW Committee went into a detailed analysis of the attitudes and prejudices of the Philippine judges. Committee on the Elimination of Discrimination Against Women, Communication No. 18/20081, UN Doc. CEDAW/46/D/18/2008, July 12–30, 2008.

23 A comprehensive description of these systems may be found in Jean-Marc de la Sablière, Security Council Engagement on the Protection of Children in Armed Conflict: Progress Achieved and the Way Forward (July 2012), https://childrenandarmedconflict.un.org/publications/Delasablierereport_en.pdf.

24 Id.

25 United Nations “Human Rights Up Front” Action Plan (2013), http://www.un.org/sg/rightsupfront/doc/RuFAP-summary-General-Assembly.htm.

26 See Prosecutor v. Akayesu, Case No. ICTR-96-4, Judgment (Sept. 2, 1998).

27 See Prosecutor v. Kunarac, Case No. IT-96-23, IT-96-23/1-A, Judgment (June 12, 2002).

28 See Prosecutor v. Dyilo, Case No. ICC-01/04-01/06, Judgment (Mar. 14, 2012).

29 See Vishakha v. State of Rajasthan, AIR 1997 SC 3011.

30 See Unity Dow v. Att’y Gen. of Botswana [1992] L. Rep. Commonwealth, 623.

31 See Muojekwu v. Ejikeme [2000] 5 N.W.L.R. 402.

32 See Bhewa v. Gov’t of Mauritius [1991] LRC (Const.).

33 See Noorfadilla Binit Ahmad Saikin v. Chayed Bin Basirun [2012] 1 MLJ 832.

34 See Bhagwati, P.N., Bangalore Principles, 14 Commonwealth L. Bull. 1196 (1988)Google Scholar.

35 See Slaughter, Anne-Marie, International Law in World of Liberal States, 6 EJIL 503 (1995)CrossRefGoogle Scholar.

36 See David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (2004).

37 See General Recommendation No. 23 (16th sess., 1997).

38 Sally Merry, Engle, Rights Talk and the Experience of Law: Implementing Women’s Human Rights to Protection from Violence, 25 Hum. Rts. Q. 343–81 (2003)CrossRefGoogle Scholar.

39 Kennedy, David, The International Human Rights Movement: Part of the Problem, 15 Harv. Hum. Rts. J. 101 (2002)Google Scholar.

40 The violence against women movement and the discussion around war crimes and crimes against humanity highlighted the issue of the responsibility of nonstate actors in discussions at the international level, especially in the 1990s.

41 See Velásquez Rodríguez Case, Inter-Am. Ct. H.R. (Ser. C) No. 4 (July 29, 1988).

42 See generally Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, UN Doc. A/Res/48/104 (Dec. 20, 1993).

43 See Due Diligence Project, 58th Session of the Commission on the Status of Women Side Event: “Beyond 2015: Due Diligence Framework to End Violence Against Women (Mar. 7, 2013), http://www.duediligenceproject.-org/Events/Events.html.

44 Copelon, Rhonda, Recognizing the Egregious in the Everyday: Domestic Violence as Torture, 25 Colum. Hum. Rts. L. Rev. 291 (19931994)Google Scholar.

45 See, e.g., Newsxlive, Delhi Gang Rape: People Demand Castration for Accused, Youtube (Dec. 19, 2012), https://www.youtube.com/watch?v=9Z1P61O-C5s.

46 Garland, David, Penalty and the Penal State, 51 Criminology 475 (Aug. 2013)CrossRefGoogle Scholar.

47 See Akayesu, Case No. ICTR-96-4-T; Delalicć, Case No. IT-96-21-T; Furundzẑija, Case No. IT-95-17/1-T; Kunarac, Case Nos. IT-96-23 & IT-96-23/1; ICC Statute art. 7(g) (specifically prohibiting rape and including “sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity” as crimes against humanity). See also Statute of the Special Court Sierra Leone art. 2(g).

48 ICTY Statute Rules of Procedure and Evidence, Rule 96, UN Doc. T/32 (Mar. 14, 1994).

49 See Garkawe, S., Victims and the International Criminal Court: Three Major Issues, 3 Int’l Crim. L. Rev. 345 (2003)CrossRefGoogle Scholar.

50 See Prosecutor v. Dyilo, Case No. ICC-01/04-01/06, Judgment (Mar. 14, 2012).

51 See Margaret E. Keck & Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (1998); Finnemore, Martha & Sikkink, Kathryn, International Norm Dynamics and Political Change, 52 Int’l Org. 887 (1998)CrossRefGoogle Scholar.

52 G.A. Res. 60/1, paras. 138–40, UN Doc. A/RES/60/1 (Oct. 24, 2005) (describing the responsibility of the individual state to protect its populations from genocide, war crimes, ethnic cleansing, and crimes against humanity).

53 Anghie, Antony, International Human Rights Law and a Developing World Perspective, in Routledge Handbook of International Human Rights Law (Sheeran, Scott & Rodley, Nigel eds., 2013)Google Scholar.

54 Mahmood Mamdani, Saviors and Survivors: Darfur, Politics and the War on Terror (2010).

55 Richard Rorty, Contingency, Iron and Solidarity (1989).

56 Samuel Moyn, The Last Utopia: Human Rights in History (2012).

57 See, in particular, the writings of the subaltern movement—works by Gayatri Spivak, Partha Chatterjee, and Ranajit Guha, who also draw on the works of Foucault, Derrida, and other post-modern and post-structural scholars in the West.

58 See Nicole Pope, Honor Killings in the 21st Century (2011).

59 See the scholarly work of A. An’Aim and the reports of Special Rapporteur on the Right to Culture Farida Shaheed.

60 See Bilge, Sirma, Beyond Subordination vs. Resistance: An Intersectional Approach to the Agency of Veiled Muslim Women, 31 J. Intercultural Stud. 9 (2010)CrossRefGoogle Scholar.

61 Wynter, Sylvia, “Genital Mutilation” or “Symbolic Birth?” Female Circumcision, Lost Origins, and the Aculturalism of Feminist/Western Thought, 47 Case W. Res. L. Rev. 501 (1997)Google Scholar.

62 See Spivak, Gayatri Chakravorty, Can the Subaltern Speak?, in Colonial Discourse and Post-Colonial Theory: A Reader (Williams, Patrick & Chrisman, Laura eds., 1994)Google Scholar.

63 Spivak, Gayatri Chakravorty, The Rani of Sirmur: An Essay in Reading the Archives, 24 Hist. & Theory 247 (Oct. 1985)CrossRefGoogle Scholar.

64 Spivak, supra note 62, at 93.

65 See The Commission of Sati (Prevention) Act, 1987, available at http://www.wcd.nic.in/commissionofsatiprev-ention.htm.

66 Francis Fukuyama, The End of History and the Last Man (2006).

67 The role of China today and its search for natural resources, its monopoly and commissions with regard to infrastructure projects, and its interactions with authoritarian developing-country states and politicians have yet to be analyzed in detail.

68 Kumari Jayawardena, The White Woman’s Other Burden: Western Women and South Asia During British Rule (1995).

69 Bethia N. Bell & Heather M. Bell, H.C.P Bell: Archaeologist of Ceylon and the Maldives (1993).

70 Helene Petrovina Blavatsky et al., Five Part Series on the Theosophists (2004).

71 See Anne-Marie Slaughter, A New World Order (2009).

72 See Butler, Judith, Subjects of Sex/Gender/Desire, in Feminism and Politics 273 (Phillips, Anne ed., 1998)Google Scholar; see also Butler, Judith, Imitation and Gender Insubordination, in Women, Knowledge, and Reality: Explorations in Feminist Philosophy 371 (Garry, Ann & Pearsall, Marilyn eds., 1996)Google Scholar.

73 President Museveni signed the Rome Statute primarily to deal with the Lord’s Resistance Army. President Bashir of Sudan and President Kenyatta of Kenya have often urged the African Union to boycott the ICC.

74 Mbeki, Thabo & Mamdani, Mahmood, Courts Can’t End Civil Wars, N.Y. Times, Feb. 5, 2014.Google Scholar

75 Personal Communication, Kigali 1995.

76 The lack of regulation of U.S. drones over Yemen and Pakistan, and the continued existence of the Guantánamo Bay detention camp, remain open symbols of double standards, despite the change of administration in the United States.

77 The U.S. State Department’s Trafficking in Persons Report focuses on laws and punishment as a way of assessing states’ compliance with trafficking norms. The report is available at http://www.state.gov/j/tip/rls/tiprpt/.

78 Nicholas Kristoff, Op-Ed., Back to the Brothel, N.Y. Times, Jan. 22, 2005.

79 Merry, supra note 38.

80 Nietzsche deals with this at length in On the Genealogy of Morals. An excellent article on the subject is Reginster, Bernard, Nietzsche on Ressentiment and Valuation, 57 Phil. & Phenomenological Res. 281 (1997)CrossRefGoogle Scholar.

81 See the website of UN women (http://www.unwomen.org/en) with regard to Millennial Development goals.

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