Luca Winer, Vol. 37 Editor-in-Chief, Vol. 36 Associate Editor
Violence against women and children is endemic in many conflict zones. Sexual violence is particularly likely to be used a weapon of intimidation and subjugation.[i] The international community has acknowledged this unfortunate truth, and discussed, written and signed many multilateral treaties that attempt to address this type of violation. Since the 1940s, customary international law has recognized that even in wartime, civilians have legal rights and protections.[ii] The Fourth Geneva Convention of 1949 stated that civilians must be cared for in detention and must not be subject to torture; “violence to their life or person;” be taken hostage; subject to “outrages upon personal dignity;” or subject to rape.[iii]
Violence against women was specifically addressed as an international human rights issue in The Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”). [iv] This convention, adopted in 1979, became the foundational international human rights treaty concerned with eliminating violence against women and championing women’s rights.[v] Its overarching goal is “to eliminate all forms of discrimination against women with a view to achieving women’s de jure and de facto equality with men in the enjoyment of their human rights and fundamental freedoms.”[vi] CEDAW binds signatories to three primary obligations: to ensure that there is no discrimination against women in domestic laws and women are protected against discrimination; to improve the de facto position of women; and address prevailing gender relations and the persistence of gender stereotypes. [vii]
Since 1979, further steps were taken to solidify international laws and provide mechanisms, forums and remedies for victims of sexual violence. In 1993, the United Nations Security Council approved UN Security Council Resolution 827 under Chapter VII of the UN Charter.[viii] This resolution formally recognized rape as a crime against humanity in trials occurring at the International Criminal Tribunal for the Former Yugoslavia (ICTY). Though limited at the time to sexual crimes committed during the Balkans conflict, recognizing rape as a crime against humanity set a precedent for later tribunals and post-conflict justice enforcement mechanisms.[ix] In 1998, the International Criminal Tribunal for Rwanda (ICTR) went even further: for the first time, rape was recognized as potentially an act of genocide. In 2002, the Rome Statute of the International Criminal Court (ICC) also recognized sexual violence (including forced pregnancy) as a war crime and a crime against humanity.[x] Condemnation of sexual violence in wartime as an instrument of terror has reached the level of customary international law,[xi] but questions remain on how to best enforce and police these norms, as well as what is the appropriate forum and remedy to provide alleged victims of sexual violence.
How Are These Rights Enforced?
Despite all these universal human rights declarations, it is not clear how much impact international law has had on the behavior of combatants in conflict zones, given the continuing high incidence sexual violence.[xii] Questions remain regarding the interplay between international and domestic legal systems, which body should be used to punish violations against women, and indeed what those enforcement mechanisms should look like.[xiii]
“The universal human rights treaties are, on their own, insufficient to define state obligations. The treaties are riddled with ambiguous and contextually variable standards… [for example,] [t]he Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) requires states to take ‘appropriate’ steps to suppress the trafficking of women; it nowhere identifies the steps that are appropriate.”[xiv]
Identifying “appropriate steps” is often left to the states to handle. Enforcement mechanisms to protect human rights are less codified than the international condemnation of such acts.
“States are notoriously fickle about implementing even human rights norms that are widely accepted as law. In other words, the norms’ international legal status does not generate all that much of a ‘compliance pull.’”[xv] When states do attempt to comply with customary international laws concerning human rights violations, there are primarily two models of how this can occur. First, states themselves can become gap fillers, creating frameworks of regulation and enforcement to ensure that human rights victims have forums in which to seek remedies. This is accomplished by states incorporating international law into domestic prohibitions against similar conduct, so that any perpetrator is violating both domestic and international law, and therefore can be punished locally.[xvi] The second model of state-international human rights law interaction is for states to not let international laws influence domestic laws, and allow international actors, such as the ICC or international criminal tribunals punish domestic perpetrators under a universal jurisdiction justification.[xvii]
Practical issues arise under both of these models of enforcement. When states interact with international human rights norms in the first way (through integration), then a state’s capacity for meaningful prosecutions are raised.[xviii] But if a state relies on the international community to prosecute offenders, then the victims are unlikely to garner relief at all: there has only been limited enforcement to date of sexual crimes by The International Criminal Court.[xix] Unfortunately, no matter how the obligation to protect universal women’s rights is parsed, gaps emerge so that perpetrators remain unpunished, and victims remain without justice.
The Israeli Case Study
Israel is an interesting case study because it provides an example of a country has been marred by conflict, any yet has suffered very little sexual violence as a result of this conflict.[xx] Though this conflict is over sixty years long, there has been almost no documentation of any crimes of sexual violence perpetrated by Israeli Defense Force soldiers against Palestinian women.[xxi] There are many possible explanations for this lack of sexual violence in this conflict, and some look to the international community’s role and international human rights treaties that Israel signed to explain the conflict’s combatants’ unusual compliance with customary international law norms.[xxii] Israel was a signatory to many legally binding conventions that protect human rights, including women’s rights. Israel signed the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva IV) in 1949, the Convention on the Political Rights of Women in 1953, and CEDAW in 1980.[xxiii]
Israel has undertaken a hybrid approach to international norms: though it has not officially integrated conventions such as CEDAW into its domestic law,[xxiv] it does enforce sexual violence violations and take pains to adhere to these norms.[xxv] Israel has also incorporated the principles of CEDAW into its regulations, official positions on sexual violence, and even into the Israeli Defense Force’s (IDF) (the military arm of Israel) sworn goals. The IDF’s overarching mission is “to defend the existence, territorial integrity and sovereignty of the state of Israel.”[xxvi] The IDF doctrine explicitly protects human rights; the doctrine is replete with phrases such as “IDF soldiers will not use their weapons and force to harm human beings who are not combatants or prisoners of war.”[xxvii] The ‘spirit’ of the IDF draws upon “universal moral values based on the value and dignity of human life.”[xxviii] The IDF doctrine even notes that a basic foundational principle of the IDF is human dignity: “The IDF and its soldiers are obligated to protect human dignity. Every human being is of value regardless of his or her origin, religion, nationality, gender, status or position.”[xxix] ‘Defending Israel’ therefore becomes a balancing act between security concerns regarding Palestinians in Israel-controlled territory and a desire to be seen as a legitimate, sovereign state in the eyes of the international community. Injustices committed against Palestinians, and against the human rights principles Israel has vowed to honor, awaken concerns about the injustice of its establishment.[xxx] Because there is another hypothetical political ‘solution’ to Israel not existing (the establishment of an Arab Palestine in its place), Israel has even more incentive to play by international rules since by doing so it builds legitimacy, which makes it harder for Palestinians to challenge its sovereignty and its political right to exist.
Therefore, in many ways, it was in Israel’s best interests to comply with all of its international obligations: Israel’s largest goals for its future were to survive against all odds; gain political legitimacy in the eyes of the international community; maintain state sovereignty; and maintain state stability.[xxxi] All of these sovereignty goals were furthered by ‘playing nice’ with the international community and demonstrating its good faith effort to behave like a state, not like a rogue entity. Additionally, Israel sees itself as a democracy: a country that is involved in international human rights discourse, has an open, critical media, and a good human rights record.[xxxii] By prosecuting sexual violence perpetrators themselves, Israel has limited the ability of the international community to seek involvement in any other human rights issues within its borders.
Israel’s domestic enforcement and compliance with universal women’s rights norms directly seems to stem from its desire to limit the international community’s ability to question its sovereignty. When Israel first signed and ratified CEDAW in 1991, Israel made substantive and procedural reservations to the Convention, in particular to Article 7(b), which concerns the appointment of women to serve as judges of religious courts, and Article 16, which concerns personal status.[xxxiii] Additionally, as the provisions of CEDAW are not formally incorporated into Israeli domestic law, these provisions are not binding on Israel’s national courts.[xxxiv] Israel also refused to sign the Optional Protocol to the CEDAW in 2000.[xxxv] As a result, “individual women or groups of women may not submit claims of violations of rights protected under the Convention, nor may the Committee initiate inquiries into situations of grave or systematic violations of women’s rights.”[xxxvi]
Beyond CEDAW, Israel contravenes or unilaterally redefines many of the other conventions and laws it has promised to adhere to, despite vigorous objections from other nations. For instance, the policies and practices of Israel’s occupation of Palestine are in direct violation of Geneva IV.[xxxvii] Israel contends the occupation does not violate this convention by arguing that the status of the territories is disputed and there is no Palestinian state, making Palestinian residents non-beneficiaries of the Geneva conventions. This interpretation has been strongly criticized by the international community and completely dismissed in several Security Council resolutions (446 (1979), 465 (1980), and 1322 (2000)) as a deliberate and illegal mislabeling of Palestine.[xxxviii] In addition, as previously shown, though Israeli representatives do not commit violence of a sexual nature, they do still commit other acts of violence that are strictly prohibited under international humanitarian law.[xxxix]
Israel provides an interesting case study that casts doubt on the effectiveness of relying on international obligations and norms to reduce instances of human rights abuses, despite its relatively clean record in regards to sexual violence. Perhaps, “the continuing development of international human rights law in the area of violence against women requires work… on theories of state accountability.”[xl] For example, though CEDAW helped create the first international networks whose mission it was to monitor and research abuses, it notably did not include any individual complaint mechanism. [xli] The lack of explicit, effective enforcement mechanisms has hindered the realization of CEDAW’s goals, and rendered its “take all appropriate measures” language vague and un-actionable. Perhaps it is time to realize that states will not always be effective gap fillers, and when they are, as in the case of Israel, it might not be for altruistic reasons.
In short, the creation of international treaties alone will not stop sexual violence from occurring, without adding intrastate support serving as a gap filler. Therefore, if international law is to play any role in actually stopping these abuses, stricter enforcement of states, not just perpetrators, is necessary. Though international law reflects our universal, cultural norms against sexual violence, it does not yet influence them.
[i] See Christine Chinkin, Rape and Sexual Abuse of Women in International Law, 5 EuR. J. INT’L L. 326, 327 (1994).
[ii] Int’l Comm. of the Red Cross, Geneva Convention Relative to The Protection Of Civilian Persons In Time of War, August 12, 1949, [hereinafter Geneva IV], available at http://www.refworld.org/docid/3ae6b36d2.html.
[iv] Adrien Katherine Wing, Conceptualizing Violence: Present And Future Developments In International Law, 60 Alb. L. Rev. 943, 946 (1997).
[v] Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 19 I.L.M. 33 (1980) [hereinafter CEDAW].
[viii] Theodor Meron, Rape as a Crime Under International Humanitarian Law, 87 AJIL 424, 427 (1993).
[ix] Malaika Rajandran, Sexual Violence and International Law, 23 Refugee Surv. Q., 58, 70 (2004).
[x] Miranda Alison, Wartime Sexual Violence: Women’s Human Rights and Questions of Masculinity, 33 Review Of Int’l Studies, 75, 83 (2007).
[xi] Chinkin supra note i, at 331.
[xii] Well-documented examples of conflicts rife with sexual violence include the wars of Yugoslav disintegration, the Rwandan genocide of 1994 and the Sierra Leone civil war.
[xiii] Monica Hakimi, The Role of Opinio Juris in Customary International Law: Law and the Universal Human Rights Treaties (July 2013).
[xvii] See Chinkin, supra note i, at 336.
[xviii] A state may have the desire to prosecute abusers without the actual means; post-conflict states in reconstruction mode often cannot spare resources for a comprehensive judicial system. (See, e.g., Analysis: New Laws Have Little Impact On Sexual Violence In DRC, IRIN (June 7, 2011), http://www.irinnews.org/report/92925/analysis-new-laws-have-little-impact-on-sexual-violence-in-drc; Sierra Leone: Sexual Violence Defies New Laws, IRIN (July 30, 2009), http://www.irinnews.org/report/85511/sierra-leone-sexual-violence-defies-new-law (demonstrating the inability of the Democratic Republic of Congo and Sierra Leone to punish sexual violence perpetrators, despite new laws prohibiting conduct.)
[xix] The ICC has only handled twenty-two cases since its inception. Only claims against the worst offenders and the leaders of violent conflict movements get heard. Situations and Cases, International Criminal Court, available at http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx.
[xx] Elizabeth Jean Wood, Variation in Sexual Violence During War, 34 Politics and Soc’y, 307, 314 (2006).
[xxi] I am only examining the phenomenon (or lack thereof) of IDF on Palestinian sexual violence because the IDF represents Israel, a state, as a coherent, single military- there are many Palestinian groups, combatants, and authorities, and it would be harder to ascribe statehood, with the accompanying human rights responsibilities, to Palestine, especially considering I am looking at the conflict broadly from 1948 until present day. Wood, supra note xx, at 314.
[xxii] Tal Nitsán, Controlled Occupation: The Rarity of Military Rape in the Israeli-Palestinian Conflict, trans. Tal Amiel, The Shaine Center for Research in Social Science, 12 Shaine Working Papers 1, 186 (2007).
[xxiii] Israel Ministry of Foreign Affairs, International Conventions on Human Rights, Israel Ministry of Foreign Affairs (2013), [hereinafter Israel Ministry], available at: http://www.mfa.gov.il/mfa/mfa-archive/1999/pages/international%20conventions%20on%20human%20rights.aspx.
[xxiv] Monitors the Convention on the Elimination of All Forms of Discrimination Against Women, Adalah: The Legal Center for Arab Minority Rights in Israel, http://www.adalah.org/en/content/view/7516.
[xxv] Israel Ministry, supra note xxiii.
[xxvi] IDF. Israeli Defense Forces Doctrine Government Page. Israeli Defense Forces. (2013), http://www.idf.il/1497-en/Dover.aspx.
[xxx] Tomis Kapitan, Violence and Self-Determination in the Israeli Palestinian Conflict, 36 Peace and Change, 494, 520 (2011).
[xxxii] Nitsán, supra note xxii, at 186.
[xxxiii] CEDAW, supra note v.
[xxxiv] Although the provisions are considered persuasive, and do influence perceptions of related domestic laws. Id.
[xxxv] Violence against Palestinian Women, Committee on the Elimination of Discrimination against Women, The World Organization Against Torture (July 2005), available at http://www2.ohchr.org/english/bodies/cerd/docs/ngos/OMCT.pdf.
[xxxvii] Andrea Ernudd. The Role of Gender in the Israeli-Palestinian Conflict: Exploring the Impact of Occupation and Patriarchy on Palestinian Women, LUND University, 1, 10 (2007).
[xxxviii] Kapitan, supra note xxix, at 511.
[xxxix] Jeff Handmaker, UN’s Committee on Women criticizes Israel, The Electronic Intifada (Aug. 22, 2005), available at http://electronicintifada.net/content/uns-committee-women-criticizes-israel/5715.
[xl] Important Steps And Instructive Models In The Fight To Eliminate Violence Against Women, 52 Wash & Lee L. Rev. 1109, 1120.
[xli] No Woman, No Cry – Ending The War On Women Worldwide And The International Violence Against Women Act (I-VAWA), 33 B.U. Int’l L.J. 73, 84.