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Of Torture Under International Human Rights Law Leiden Journal of International Law http://journals.cambridge.org/LJL Additional services for Leiden Journal of International Law: Email alerts: Click here Subscriptions: Click here Commercial reprints: Click here Terms of use : Click here The ‘Feminizing’ of Torture under International Human Rights Law ALICE EDWARDS Leiden Journal of International Law / Volume 19 / Issue 02 / June 2006, pp 349 - 391 DOI: 10.1017/S0922156506003359, Published online: 13 July 2006 Link to this article: http://journals.cambridge.org/abstract_S0922156506003359 How to cite this article: ALICE EDWARDS (2006). The ‘Feminizing’ of Torture under International Human Rights Law. Leiden Journal of International Law, 19, pp 349-391 doi:10.1017/S0922156506003359 Request Permissions : Click here Downloaded from http://journals.cambridge.org/LJL, IP address: 192.167.90.29 on 24 Apr 2015 Leiden Journal of International Law, 19 (2006), pp. 349–391 C Foundation of the Leiden Journal of International Law Printed in the United Kingdom doi:10.1017/S0922156506003359 The ‘Feminizing’ of Torture under International Human Rights Law ∗ ALICE EDWARDS Abstract International human rights law has been the subject of much scrutiny by feminist scholars over thepasttwodecades,principallybecauseofthewayinwhichitisseenasprivilegingtherealities of men’s lives while ignoring or marginalizing those of women. The international prohibition on torture is identified by feminist writers as a classic example of this ‘male’-gendered nature of human rights law. This article explores the extent to which key feminist critiques of the 1980s and 1990s are now reflected in the commentary and jurisprudence on torture of various international human rights bodies. It asks: have the critiques of international human rights law been satisfied by interpretations applied by international and regional bodies to this so- called ‘male’ right? It concludes by offering both caution and counsel – it cautions against the potentiality of new interpretations simply replacing old gender-based stereotypes with new ones and counsels international decision-makers to focus on the individual or personalized characteristics and circumstances of each claim, of which sex/gender may be but one factor. Key words definition of torture; due diligence; feminist theory; international human rights law; pub- lic/private dichotomy; torture 1. CONTEXT International human rights law has been subject to much scrutiny by feminist writers over the past two decades. Principally, international human rights law has been criticized for privileging the realities of men’s lives while ignoring or marginal- izing those of women. Feminists have argued that human rights norms were initially articulated, and continue to be interpreted and applied, to reflect men’s experiences, while overlooking the harms that most commonly or disproportionately affect wo- men, such as illiteracy, poverty, or sexual violence.1 The United Nations Convention against Torture 19842 (UNCAT) is identified as an example of this ‘gendered’ nature of international law, particularly because under its definition of torture the severe ∗ LLB (Hons.), BA (Tasmania), LL.M in Public International Law (Distinction) (Nottingham), Diploma in InternationalandComparativeHumanRightsLaw(Institutinternationaldesdroitsdel’homme,Strasbourg); Adjunct Lecturer, University of Tulsa College of Law. The author is researching towards a doctoral degree through the Australian National University on the conceptualization of violence against women under international law. She has previously worked as a legal, protection and/or gender adviser to the UN High Commissioner for Refugees and has taught refugee and human rights law at the University of Tasmania and the Australian National University. She wishes to thank Professor Hilary Charlesworth and Susan Harris-Rimmer for their valuable comments on an earlier draft of this article. 1. A. Gallagher, ‘Ending the Marginalization: Strategies for Incorporating Women into the United Nations Human Rights System’, (1997) 19 Human Rights Quarterly 283. 2. GA Res. 39/46, 10 Dec. 1984; entered into force 26 June 1987. http://journals.cambridge.org Downloaded: 24 Apr 2015 IP address: 192.167.90.29 350 ALICE EDWARDS pain or suffering must be inflicted ‘by a public official or other person acting in an official capacity’.3 Although a few feminist writers acknowledge that women also suffer harm that falls within this circumscribed context of torture, they argue that even in these circumstances the international provisions do not fully reflect the nature and extent of violations faced by women in the public sphere.4 As Catharine MacKinnon states, ‘When what happens to women also happens to men, like being beaten and disappearing and being tortured to death, the fact that those it happened to are women is not registered in the record of human atrocity’.5 This aspect of feminist reasoning on international law could be classified as deconstructionist in approach, as it seeks largely to criticize or deconstruct human rights law, without offering concrete ways in which human rights law could be developed to encompass the experiences of women. In parallel to, and building on, the deconstructionist approach emerged what couldbedescribedasareconstructionistfeministapproachtohumanrightslaw.This approach focuses less on criticizing the ‘male’ nature of torture under international law and rejecting it on that basis as irrelevant to women’s lives, and more on questioning and analysing the potential scope for such provisions to be interpreted and applied in favour of women. Feminist writers do not easily fall into one or other of these approaches, neither do the two approaches follow each other sequentially. However, international feminist writers of the mid- to late 1980s and early 1990s were more likely to fall into the deconstructionist approach as they sought to highlight, as a first step, the faults and problems of international human rights law. Only later did some of these same theorists and scholars seek to embrace human rights law as a tool to be used in pursuit of women’s rights. In the absence of an explicit international treaty right protecting women against violence, women’s rights activists and feminist academics began to argue that existing provisions could and should be revisited to incorporate better the concerns, experiences, and interests of women.6 In other words, there has been an attempt to update traditional 3. See, e.g., H. Charlesworth, C. Chinkin, and S. Wright, ‘Feminist Approaches to International Law’, (1991) 85 AJIL 613, 628–30; H. Charlesworth and C. Chinkin, ‘The Gender of Jus Cogens’, (1993) 15 Human Rights Quarterly 63; A. Byrnes, ‘The Convention Against Torture’, in K. D. Askin and D. M. Koenig (eds.), Women and International Human Rights Law (1999), II, 183; C. A. MacKinnon, ‘On Torture: A Feminist Perspective on Human Rights’, in K. E. Mahoney and P. Mahoney (eds.), Human Rights in the Twenty-First Century: A Global Challenge (1993), 21; R. Copelon, ‘Recognising the Egregious in the Everyday: Domestic Violence as Torture’, (1994) 25 Columbia Human Rights Law Review 291. 4. Byrnes, supra note 3, at 184. 5. C. A. MacKinnon, ‘Rape, Genocide, and Women’s Human Rights’, (1994) 17 Harvard Women’s Law Journal 5, 5 (emphasis in original). 6. See, e.g., R. J. Cook, ‘State Responsibility for Violations of Women’s Human Rights’, (1994) 7 Harvard Human Rights Journal 125; A. P. Ewing, ‘Establishing State Responsibility for Private Acts of Violence against Women under the American Convention on Human Rights’, (1995) 26 Columbia Human Rights Law Review 751; D. Q. Thomas and M. E. Beasley, ‘Symposium on Reconceptualizing Violence Against Women by Intimate Partners: Critical Issues: Domestic Violence as a Human Rights Issue’, (1995) 58 Albany Law Review 1119; J. D. Wilets, ‘Conceptualizing Violence: Present and Future Developments in International Law: Panel III: Sex and Sexuality: Violence and Culture in the New International Order: Conceptualizing Private Violence against Sexual Minorities as Gendered Violence: An International and Comparative Perspective’, (1997) 60 Albany Law Review 989; B. C. Alexander, ‘Convention Against Torture: A Viable Alternative Legal Remedy for Domestic Violence’, (2000) 15 American University International Law Review 895; A. N. Wood, ‘A Cultural Rite of Passage or a Form of Torture: Female Genital Mutilation from an International Law Perspective’, (2001) 12 Hastings Women’s Law Journal 347; R. Lord, ‘The Liability of Non-State Actors for Torture in Violation of http://journals.cambridge.org Downloaded: 24 Apr 2015 IP address: 192.167.90.29 THE ‘FEMINIZING’ OF TORTURE UNDER INTERNATIONAL HUMAN RIGHTS LAW 351 notions of torture to their contemporary setting. The first manifestation of this renewed hope in international law can be traced to the decisions delivered by the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda after worldwide attention was paid to the mass rape, forced impregnation, sexual enslavement, and murder of thousands of women during the conflicts in these countries. It has been claimed that these wars were ‘foughtonandthroughwomen’sbodies’.7 Humanrightscourtsandcommitteessoon followed suit. Feminists writing during this phase could also be called integrationist, as they attempted to work for and to advocate women’s rights within mainstream institutions. This approach, even if not an intended outcome, has contributed to the practice of gender mainstreaming8 in
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