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Home > impact on women / resistance > AI (continued)- ’Soft law’ and hard choices: a conversation with Gita (...)

AI (continued)- ’Soft law’ and hard choices: a conversation with Gita Sahgal

Monday 19 April 2010, by siawi2

by Deniz Kandiyoti, 19 April 2010

In the first of a two-part conversation, Deniz Kandiyoti and Gita
Sahgal explore the challenges posed by the international conjuncture
following the “war on terror” for gender justice and women’s rights.

DK: We find ourselves at a particularly critical juncture with respect to upholding the principles of universal human rights. On the one hand, grievous human rights abuses have been committed in the name of the “war on terror”.
On the other, the global resurgence of politicised religion is calling
into question the very notion of the universality of human rights. How
can a women’s rights activist, such as yourself, establish a morally
defensible and consistent position?

GS: Struggles for women’s rights, and more broadly sexual rights, have
taken place at the grassroots in many different countries and in
international arenas, over several decades. These have had a profound
impact on the human rights framework. We actually have answers to your
questions that are both legal and ethical. Yet what we are seeing now,
is that a prominent western dominated human rights organisation, such
as Amnesty International, doesn’t appear to understand what a
commitment to universality entails. That is why it is being challenged
by its own partners in South Asia and in many parts of the world. The
formal human rights movement has been left behind by the activism and
the transformative legal work that is taking place outside it.

DK: What sorts of examples do you have in mind?

GS: Let us take the example of ’forced marriage’. For many years, it
did not exist as a human rights violation recognised by human rights
organisations, although the right to choice in marriage is stipulated
in the Convention on the Elimination Against All Forms of
Discrimination Against Women (CEDAW). But human rights organisations
were not taking up this issue and saw different forms of marriage
merely as manifestations of “culture”. Even the Fourth UN World
Conference on Women held in Beijing in 1995 barely mentioned the term
‘forced marriage’ except in relation to the trafficking of women.

Now, it has been recognised in various parts of international law,
including as a violation of international criminal law. Last year, the
Special Court for Sierra Leone convicted three former leaders of the
RUF of ‘forced marriage’ which the prosecution argued was a crime
against humanity. It’s been about a decade and a half since the term
was coined to deal with abuses in the family to becoming recognised as
a mass crime. This is a relatively short space of time for an issue to
gain such recognition and become embedded in international law. I
remember that we first started to use the term ‘forced marriage’ when
I was still at Southall Black Sisters in the 1990s and tried to get
funding to research the issue - but it was seen as a non-issue and it
was a hard fight to put it onto the British government’s agenda. In
fact, one of the questions we kept being asked was how widespread the
problem was. That is exactly the kind of thing you don’t know until
you research it. But you don’t get research funding until you show
that it is a major problem. It is important to note here that this
major shift was not led by the formal human rights movement but by
feminist activists and legal practitioners such as Sara Hossain, one
of the women who drafted the global petition to Amnesty International
on the Integrity of Human Rights.

Sara used classical remedies under law that are usually applied to
people detained by the state. She filed habeas corpus petitions in the
Bangladesh courts to get young women detained by their families
produced in court, so that they could speak for themselves and say
whether they were under some form of duress. She also worked on a key
briefing when she was at Interights in London which showed that forced
marriage was against the law of the land in South Asian countries, and
that this was consistent with international law. This exercise helped
to remove the ‘cultural excuse’ for non-interference that the British
government was using as a reason to justify its refusal to act to
protect and rescue its citizens who had been kidnapped by their
families and taken to South Asia.

The change from seeing ‘arranged marriage’ as a cultural practice, to
using ‘forced marriage’ in cases where coercion and duress are
involved, helped to develop the idea that this is a serious violation
of rights. These advances were reflected in academic research and
activism on crimes in the name of honour. ‘Honour: Crimes, Paradigms
and Violence against Women’, by Sara Hossain and Lynn Welchman, 2005,
and in my film Love Snatched: Forced Marriage and Multi-culturalism
which was part of the same project, as well as Tying the Knot? made to
inform young people that choice in marriage is a fundamental human

DK: What, in your view, are the obstacles in the way of recognition of
certain forms of abuse against women?

GS: Many atrocious practices are simply not recognized as violations
until they are named and acknowledged by the legal human rights
framework. This process of recognition often lags years behind what is
actually being done in local courts and through local movements, for
instance on domestic violence.

But there are also double standards. A great deal of international
effort has gone into developing strong standards - what is called
‘hard law’- particularly on the absolute prohibition on torture. In
refugee law the term ‘non-refoulement’ refers to the fact that people
should not get returned to countries where they are at risk of
torture. These two standards work together. It seems to me that the
way that these standards have been interpreted has traditionally
excluded harms that are more likely to be inflicted upon women. Now
governments often attack or dilute the standards. The release by the
Obama administration of the torture memos was a major victory for
human rights which was, of course, celebrated by all who were fighting
to uphold or restore the absolute prohibition on torture and cruel,
inhuman and degrading treatment. Attempts to introduce a more thorough
gender analysis are far more contested whether they come from a
leading expert on civil and political rights such as the UN Special
Rapporteur on Torture, Manfred Nowak, or are part of the gender work
at Amnesty International, such as a briefing on the impact of the
complete ban on abortion in Nicaragua. But there are also
international law experts who feel they “own” the standards and spend
a great deal of time trying to exclude abuses against women from them.
This keeps standards frozen in time rather than creatively exploring
ways of advancing them in the light of gender analysis, which is
consistent with existing definitions. I’m sure that the two UN experts
knew that when they argued that women should be protected from
violence by using the ’hard law’ of the torture standard.

Even when the standards do change, the work of international
organisations does not. For instance, in the 1990s there were many who
fled violence at the hands of fundamentalists in Algeria. They found
that because they were not suffering from state persecution they could
not get refugee status. Yet the fundamentalists who attacked them and
who were under threat of arrest and torture by the state, also fled
Algeria and were able to obtain refugee status. Now those fleeing
armed violence by non-state groups, or even from other perpetrators,
should be able to get refugee status because the standards have
changed. Yet those facing gender-related persecution often still don’t
get protection. And what is worse is that there is insufficient
attention in the human rights community to addressing this imbalance.

DK: In the case of women’s rights, do you think that this is because
there are alternative discourses around these issues? Doctrinally
grounded conceptions of what is right and wrong can compete powerfully
with the sorts of criteria adopted by human rights instruments. For
instance, there may be various religious and doctrinal justifications
concerning the levels of mobility women are allowed, or whether
virginity or heterosexuality are mandatory.

GS: Yes, except that the human rights frameworks are not meant to be
susceptible to such justifications, especially if they violate
fundamental rights. After all human rights are supposed to uphold
universality and indivisibility of rights.

Yet these justifications persist. When water boarding was introduced
as an interrogation technique, the human rights organisations quite
rightly wanted to define it as torture, and have spent a lot of energy
trying to do so. Yet there are pervasive and widespread practices
which are quite illegitimate, such as virginity testing and anal
testing (to ‘test’ for homosexuality) that are used by the police and
medical practitioners in many countries, and it has been far harder to
get these defined as either torture or cruel, inhuman and degrading
practices. I think that new practices applied to the sort of men who
the writer Meredith Tax has called ‘the normative subject of human
rights is once again a male prisoner, this time in Guantanamo’ can
readily be analysed to see if they meet the definitions in the
Convention Against Torture and Cruel, Inhuman and Degrading Treatment
or Punishment. But applying a feminist analysis to the definitions was
more likely to be met with resistance. Rather, the legal tendency
would be to wait and see what an expert committee said rather than
trying to lead the legal analysis on the issue.

Underlying this reluctance was a kind of cultural relativism and a
fear of the type of feminist analysis that argues that state control
(and not just family and community control) of sexuality is systematic
and purposeful and often policed with both violence and

DK: Do you think these tendencies have contributed to keeping gender
issues marginal to human rights frameworks?

GS: One of the reasons for this marginality is that many of the
standards on women’s rights have developed through ‘soft law’ – that
is declarations from UN conferences such as those at Vienna (1993),
Cairo (1994) and Beijing (1995) or from declarations such as the
Declaration on the Elimination of Violence Against Women. Now ‘soft
law’ is not a legally binding treaty and therefore for some lawyers is
not persuasive. Human Rights Watch has been reluctant to cite this
‘soft law’, whereas Amnesty International made very creative use of it
during the Stop Violence Against Women Campaign Making Rights a
Reality: the duty of States to address violence against women. It was
also essential to developing work on sexual and reproductive rights by
feminist human rights organisations such as the Center for
Reproductive Rights as well as Amnesty International.

Historically, many specific harms against women, such as female
genital mutilation (FGM), were elaborated through UN discussions on
what were called ‘harmful traditional practices’. Now some
post-colonial discourse theorist may suggest that this is a plot by
Westerners to make Africans feel bad ( or, these days, Muslims, since
the trope of the Global South is the Muslim woman as victim). However,
I think you would find that it was primarily women - and often men -
who come from contexts where these practices are most prevalent who
pushed for these discussions in the UN and also fought for the legally
binding anti-discrimination treaty CEDAW. They were directly affected
by these issues and they needed international attention to put
pressure on their own governments.

There is a convergence between some of the demands of the ‘soft law’
and ‘hard law’. As women’s rights have developed there have been
strong demands to criminalise rape more effectively and to criminalise
practices such as domestic violence, that are seen as culturally
acceptable right across the world. In ‘hard law’, torture was
sometimes seen as the only human rights violation which states were
under a duty to criminalise. The ‘soft law’ advances have crept up on
some international experts. Yet, feminist lawyers such as Hilary
Charlesworth feel that there has been great resistance to the
absorption of issues of gender and sex into international law and that
their work continues to be marginalized. And ‘classical’ academic
human rights lawyers or practitioners can get quite cross when you
point out that there is now a duty to criminalise gender based
violence, and that an analysis has developed which fits the
description of torture. Under the definition in the Convention,
torture can only be committed by state agents or with the consent or
acquiescence of the state. This, in fact, fits exactly the definition
of ‘due diligence’ which Amnesty International used so powerfully in
the Stop Violence Against Women Campaign. According to this principle,
the state is responsible, even if it is not the perpetrator, because
it has failed to prevent, prosecute or punish the immediate

It’s interesting that Amnesty International started some of its work
on gender issues, whether on hate crimes against LGBT people and the
state failure to act against them, or state failure on domestic
violence, under the Torture Campaign which preceded the Stop Violence
Against Women Campaign. But as soon as there was a use of the ‘soft
law’ standards, such as the various conferences and Declarations that
we have talked about, the analysis that linked domestic violence to
torture fell into disuse. Amnesty International generally ceased to
use standards relating to torture. One of the women who first
developed this analysis and was very disappointed that Amnesty
International did not take this perspective on board in the campaign
against violence against women was Rhonda Copelon who made the case in
’Intimate Terror: Understanding Domestic Violence as Torture’ in Human
Rights of Women: National and International Perspectives ).

FGM has now been defined as a form of torture, because of marked
state failure to act to end the practice as well as the nature of the
act itself. But this is quite controversial and it is sometimes argued
strongly against by international law experts on torture for whom FGM
is a cultural practice with no detrimental intent. The drive to
control the sexuality of women is not seen as a form of systematic
discrimination. To prove that an act constitutes torture under
definition of the Convention, it must also be intentional and carried
out for a purpose such as extracting information or exercising
discrimination. That is why it is so important to look carefully at
whether all elements of the definition are present. But not to shy
away from the conclusion if all the tests are met.

One of the big challenges in human rights is that the battle between
what are called ‘black letter ‘ lawyers and feminist lawyers and
advocates was partly resolved by a truce that allowed the ‘women’s
standards’ to develop on this parallel track of soft law. This left
what are called ’jus cogens’ norms relatively untouched by gender
considerations which Hilary Charlesworth and Christine Chinkin explore
in their work. It is when feminists and others seek to understand
these norms in new ways that they are fiercely defended as if they are
under attack from those who would wish to destroy them.

DK: Do you think that there is a paradox at the moment whereby gender
issues are both made prominent and visible, through global practices
such as gender mainstreaming, and yet sidelined and marginalized
because nobody wants to deal with them in any politically meaningful

GS: It is one of the paradoxes of our time, that what is known as
‘gender mainstreaming’ is a conventional practice often used to water
down specific work on women. In spite of many very vigorous struggles
and great advances, gender analysis has been thoroughly depoliticised
as well as remaining marginal in practice.

Of course when I say depoliticised, there were actually profoundly
political choices made. The attack on the torture standard – that is
to say the attempt by the US administration (among others) to try and
water down the absolute prohibition on torture during the war on
terror , led to the decision to protect the standard vigorously. One
of the ways of protecting it was to decide to exclude any
re-interpretation as it was thought that this would make the
definition ’inflationary’. I’ve participated in several discussions
where as soon as any aspect of gender based violence is mentioned,
someone invariably uses the term ‘inflationary’ to preclude any
consideration of gender-related abuses.

Torture was seen as something that primarily applies to men and not to
the more routine ways in which women experience harm. Thus, the ’war
on terror’ has had a very profound effect on women’s rights. Yet there
is really very little analysis of what has happened. So much
commentary has concentrated simply on what Bush or Blair said about
women’s rights at one time or another to further their own
instrumental agenda, that we have simply ignored the areas where
advances in women’s rights have been undermined - either because of a
fundamentalist backlash to enforce what they consider their cultural
and religious rights, or by human rights professionals who, as they
see it, are trying to protect the purity of the human rights

Gita Sahgal is a former Head of the Gender Unit at Amnesty
International. She left Amnesty International on April 9th 2010 due to
’irreconcilable differences’. You can read her statement on leaving
Amnesty International here . The views expressed in this interview are
entirely her own

About the author

Deniz Kandiyoti is Professor of Development Studies at the School of
Oriental and African Studies, University of London

source: Open Democracy: Interview with Gita (Part 1)
The second part of this interview can be read here