Gender persecution is "aggression against and exploitation of women, because [they] are women, systemically and systematically." Even though women can be abused similarly to the ways in which men are abused, women are also violated in specific ways in which men are not. Notably, if men are violated in such ways, they become the exception to the rule.
Many of these "sex-specific violations are sexual and reproductive" including rape, sexual murder, battery, 'honor killings,' suttee, dowry burnings, Female Genital Mutilation (FGM), prostitution, forced abortion, sterilization and motherhood and sexual violence of any kind. A 1989 UN report declares that the "risk of violence and violation within the household is one thing women, irrespective of their social position, creed, color or culture, share in common."
So this begs the question, how come the international legal order is not predicated on the need to address such crimes even though many are expressly prohibited in international law and all of them within armed conflicts? Why is the presence of this pattern of destruction of women, as women, a reality, but absent in international law?
It's a Man's World:
Perhaps some of the answers lie in the fact that violations of men are better understood within the dynamic of human rights violations, as such ideas were based upon the experience of men. Law was created by men, whose perceptions were translated into ideas that were analogous with the male orientated experience. In turn, this experience dictated national and international conceptions of the human rights dynamic.
Domestically, the state is male, in that it chose to perpetuate the pre-state civil society distribution of power and resources, whereby women were dominated by men. This dichotomy was accepted as normal, neutral and good and characterized as a state of equality.
However, these state paradigms are not neutral at all. They are a self-fulfilling prophecy in relation to men as a group. These men did not provide for those who did not have such rights, like women. This was not even contemplated. The fact that they denied rights to women, for example the right to vote, is not in their interest to acknowledge. This was the beginning of the manifestation of gender blinded law.
In reality, domestic law rarely acknowledges that women are violated in these ways. For example, 33 of 50
U.S. states regard spousal rape as a lesser crime with the perpetrator charged with related crimes such as
assault,
battery or
spousal abuse. In some countries, women are even criminalized for the behavior perpetrated against them. In Afghanistan, Saudi Arabia and Iran, if a married woman is raped, she will often be charged with adultery and the penalty for such a crime can be death.
As Catharine MacKinnon suggests "gender is an inequality of power, a social status based on who is permitted to do what to whom." Humankind maintains a legal way of thinking about equality which was created by Aristotle: legal equality is to treat similarly situated people alike. Therefore
, 'equality' becomes the right to be treated like the white male given that white man's culture is the dominant culture.
History dictates the subordination of women to men and thus women's enforced inequality is a reality of which is mirrored in domestic and international law. "When men sit in rooms, being states, they are largely being men."
Throughout the world women have had, and still have, so little voice and influence in public debate and within their governments.
Moreover, women are routinely violated every day, in every country, in times of war and peace. Even though atrocities like rape and sexual murder are officially illegal, these practices are commonly permitted under domestic and international law. They are permissible and understood as an "excess of passion in peace," or the "spoils of victory in war," or as the "liberties . . . of their perpetrators."
In 1948 the Universal Declaration of Human Rights defined what being human is and the rights associated with being a human. It has been 63 years since its inception. Yet, within the human rights paradigm, what is perpetrated against women is viewed as either "too specific to women to be seen as human or too generic to human beings to be seen as about women."
The State vs. Women:
In terms of men's private acts against women, a legal exception exists in wartime. Atrocities committed by soldiers against civilians are always, in essence, state acts. However, "men do in war what they do in peace." In this way, the lack of acknowledgement and action that defines peacetime continues in war when it comes to the treatment of women, regardless of international humanitarian law.
The parties to the conflict and the atrocities perpetrated are covered by international humanitarian law. Yet, as we can see unfolding in Darfur and the Congo, rarely are international instruments, invoked to prevent or stop the atrocities or hold the perpetrators accountable.
The more a conflict can be defined as internal, as domestic, as social, the "more feminized the victims become no matter the gender," thus reducing the likelihood that international human rights will be established as being violated, irrespective of the reality of that war.
It must be understood that this is not because women's human rights have not been violated, it is because the violations of women have been obscured.
This shroud occurs in two distinct ways. Firstly, when women are violated like men, the abuse is not characterized as violations of women's human rights. For example, when women, with men, are murdered and buried in mass graves, beaten and tortured, these women are defined in history as part of a group, as Colombian (nationality) or Jewish (religion). The specific crimes that they as women faced, are lost in the identity of a more readily distinguishable group.
Secondly, in peacetime, contained by daily hostilities, women are raped and assaulted by partners, family and friends. However, these atrocities are not distinguished as human rights violations, their victims become the "desaparecidos of everyday life," and what is done to them "smells of sex."
