Wednesday, October 7, 2009

What do women want? International law that matters in their day-to-day lives

(Part 3 of a 3-part guest post on what women want from international criminal justice, by Judge Patricia M. Wald. Part 1 is here; Part 2 is here.)

I believe women want international law and tribunals to make a difference in their daily lives.
Even if tribunals do their work well, so that women’s wrongs are recognized as serious war crimes, crimes against humanity, and tools of genocide – even if enough women can infuse their own sensitivities into the process – even if tribunals achievements’ are truly accessible to ordinary women – will all that really help women in states where old ways survive? In states where women are treated, in peacetime as well as in wartime, as property, and their sexual and physical integrity impugned at will?
Even in countries that have ratified the Convention on the Elimination of All Forms of Discrimination Against Women and other human rights treaties, customary law and local norms executed by tribal and religious courts often approve practices that oppress and diminish women – that deny them rights to work, to hold property, to custody of their children, to be educated, to inherit money, or to obtain divorces however maltreated they may be. In these benighted lands, there are only a few embryonic organizations, and even fewer shelters, for oppressed women.
You may ask what all this has to do with tribunals.
I see an entry point whereby the advances of international humanitarian law and tribunal jurisprudence could help the plight of these women and girls. It is future development of the crimes against humanity doctrine.
Unlike genocide, which limits its protection to racial, religious, and ethnic groups, and unlike war crimes, which require a nexus to armed conflict, crimes against humanity can include a state-ordered, perhaps even a state-tolerated, regime of discrimination that violates the fundamental rights of women.
Surely the conditions I have described could, in extreme cases, amount to the discriminatory treatment that is the vital element in the underlying crime of persecution, which can qualify as a crime against humanity. Article 7 of the ICC Statute defines a crime against humanity as prohibited conduct that is part of an “attack,” against “any civilian population,” which involves “the multiple commission of specified acts pursuant to or in furtherance of a state or organizational body”; the violations must be systematic or widespread. Article 7(g) sets out the full list of sexual crimes – rape, slavery, forced pregnancy, etc. – that may anchor a crime against humanity designation. Article 7(h) specifies gender as a ground on which a claim for persecution can be based.
The $64 question, of course, is whether a state-tolerated regime of gender oppression, enforced by private parties or clerical or tribal authorities, would ever meet the test. It is certainly not beyond contemplation that discriminatory legislation, exemplified by the Shiite law on mandated intercourse and travel bans for married women passed by the Afghanistan parliament, might qualify, or that regimes that allow women to be stoned to death for adultery without any formal trial might as well.
Recent developments lend support for this way of thinking:
► Action by U.S. immigration authorities, granting asylum for women who show that the rigid discriminatory codes of conduct pertaining to women in their native countries were officially approved or enabled by the government;
► A ruling by the European Court of Human Rights that Turkey’s failure to protect a woman who had sought help from the authorities from domestic violence amounted to gender discrimination in violation of obligations under CEDAW; and
► The embryonic responsibility to protect doctrine embraced by the United Nations, which seeks to delineate the obligations of a country to keep its residents safe from predatory attacks by nongovernmental groups.
I do not speak in an advocacy mode. Nor am I sanguine that crimes against humanity will proceed along this route. But I persist in thinking that the very existence of a universally accepted criminal norm that so neatly fits the situation that so pervasively stifles the very life and spirit of so many women in so many parts of the world could serve a purpose:
► An extreme case could arise where the degree of violence or slavery-like conditions systematically imposed on civilian women would produce an international cry for humanitarian intervention, including criminal accountability of the persons responsible.
► Following Justice Robert H. Jackson’s more conservative example as Chief U.S. Prosecutor at Nuremberg – he insisted that the crimes against humanity committed by the Nazis against the Jews in prewar Germany could be charged as such if they were part of preparation for war – a prosecutor might in the context of a wartime case against leaders of these regimes add a count based on the continuing abuses perpetrated against women at all times. (I have often wondered how a judge could rule on wartime atrocities against women and not be troubled by equally abhorrent acts committed in peacetime against those same women.)
► There is the hope and some evidence that tribunal decisions on gender crimes will work their way into domestic jurisprudence.
► The recognition of crimes against humanity extending to systematic oppression of women would be a useful talking point in diplomatic negotiations that seek compliance with more traditionally enforceable treaties or convention obligations.
► In some countries – Kuwait, Egypt, even Iran – where women are beginning to organize against gender discrimination and to affirmatively seek rights to education, custody, and property, the crime against humanity designation for persistent denial of their pleas might add to their powers of persuasion.
► If this norm were in place, countries would have to comply with it when seeking to join the ICC – a point at which they must conform their own laws in order to meet complementarity standards.
► It would indeed be salutary if the ICC prosecutor were to mobilize on behalf of women suffering the worst abuses the kind of “Dutch uncle” supervision -- proactive complementarity -- that he has told us is already under way in several countries where outside groups have urged him to open formal investigations into a variety of alleged offenses.
I entreat you to think about ways in which the tribunals can alleviate the misery of women, in situations where the commission of serious crimes against humanity is virtually indisputable, so that if and when the right situation comes along, you will be ready.

No comments: