Sex and International Tribunals. Chiseche Salome Mibenge
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aims this criticism specifically at HRC General Comment 16 (1988) on the right to privacy, which ignores the importance that this right has assumed in the struggle of women for control over their reproductive lives, for example, with respect to abortion or the spacing of children (HRC General Comment 16, art. 17).10 Instead, traditional (androcentric) concepts, such as the inviolability of the home from state interference and restrictions on the use of sensitive personal information by governments and others, were the major preoccupation of the HRC (Byrnes 1988: 217). The narrative arising from the HRC General Comment on the issue of privacy privileges the concerns of men.
However, with the passage of time committee members have come to place gender at the core of their comments. Through these General Comments, first and second tier human rights instruments have been elaborated upon in order that women’s multiple identities are identified and considered. General Comments have become an important means of normative development in a regime that is frustratingly limited in this respect (Otto 2002: 10). The HRC, earlier criticized for failing to take gender into account, produced the far reaching General Comment 28 (2000) addressing article 3 of the ICCPR on equality between men and women. Gender is squarely addressed as grounds for discrimination, and its impact on vulnerability to discrimination as well as the shape of discrimination is discussed within this comment. States are instructed by General Comment 28 that combating inequality in both public and private spaces is the responsibility of the state and cannot be limited to formal equality but requires multiple responses, including the removal of obstacles to the equal enjoyment of such rights, the education of the population and of state officials in human rights, the adjustment of domestic legislation, and affirmative action for the advancement of women (art. 3 and 4).
General Comment 28 goes on to prohibit states from justifying unequal treatment and opportunity for women on the grounds of tradition, history, and culture or religious attitude. Dowry killings, clandestine abortions, prenatal sex selection, and the abortion of female fetuses are condemned as a manifestation of discriminatory attitudes that subordinate women (art. 5 and 10). General Comment 28 describes how poverty and deprivation, armed conflict, and states of emergency can compromise women’s rights and increase their vulnerability to discrimination, often in the shape of violence, such as sexual violence and abduction (art. 10).
As I stated earlier, CERD had ignored gender related aspects of racial discrimination. The CERD Committee replicated this omission in all nineteen of its General Comments passed before 1996. At one stage, the CERD Committee chairperson made the astounding declaration that he rejected directives to integrate gender issues into the CERD’s work as “fundamentally misconceived” and considered that it was the CEDAW Committee’s job to deal with women (Gallagher 1997: 304, quoted in Otto 2002: 27).11 This statement was even more astounding considering that in 1995 the chairpersons of the treaty committees had endorsed a shared commitment to “fully integrate gender perspectives into their working methods, including identification of issues and preparation of questions for country reviews, general comments, general recommendations, and concluding observations.”12
It is notable, therefore, that in the past decade the CERD Committee has surpassed the HRC in its efforts to incorporate gender into its treaty. Indeed, the CERD Committee has introduced a gender analysis of human rights into various comments and not only a thematic comment on gender. In General Comment 25 (2000), the CERD Committee notes that there are circumstances in which racial discrimination only or primarily affects women, or affects women in a different way or to a different degree than it affects men. Such racial discrimination will often escape detection if there is no explicit recognition or acknowledgment of the different life experiences of women and men, in areas of both public and private life (art. 1). Further, certain forms of racial discrimination may be directed toward women specifically because of their gender, such as the coerced sterilization of indigenous women and the abuse of women workers in the informal sector or domestic workers employed abroad by their employers (art. 2).
The CERD Committee’s General Comment 25 (2000) elaborates that racial discrimination may have consequences that affect primarily or only women, such as pregnancy resulting from racial bias–motivated rape; in some societies, the women victims of such rape may also be ostracized (art. 2). Women may also be further hindered by a lack of access to remedies and complaint mechanisms for racial discrimination because of gender related impediments, such as gender bias in the legal system and discrimination against women in private spheres of life (art. 2). General Comment 25 clearly states that gender discrimination is highly likely to intersect with racial discrimination and urges states to investigate this intersection in a consistent, systematic manner (art. 3). This is a landmark interpretation, and analysis of racial and gender discrimination as indigenous women, minority women, displaced women, imprisoned women, women before a prejudiced justice process, women political prisoners, women in armed conflict, and other unspecified groups are envisaged by the committee as falling within the mandate of CERD.
The CERD Committee succeeds with this General Comment in enhancing its efforts to integrate gender perspectives, incorporate gender analysis, and encourage the use of gender inclusive language in its sessional working methods, including its review of reports submitted by states’ parties, concluding observations, early warning mechanisms and urgent action procedures, and general comments (also known as general recommendations) (art. 4). This is a remarkable commitment, and since it was made, the CERD Committee has passed two other General Comments that show a sophisticated analysis and mainstreaming of gender issues. General Comment 27 (2002) on discrimination against the Roma provides states with measures for the protection of Roma communities. It also refers in several instances to Roma women who are often victims of “double discrimination” (art. 6). In the area of education, for example, states are urged to take responsibility for the high drop-out rates of Roma children and to take into account gender issues that might force girls out of school far earlier than boys (art. 17). The comment calls on government programs, projects, and campaigns in the field of education to take into account the “feminization of poverty” (art. 22). The committee also urges that health programs implemented by states to service Roma communities factor into their policy and administration cultural attitudes that subordinate women and girls and contribute to their lower levels of education (art. 34).
CERD General Comment 29 (2002) focuses on the unique oppression caused by descent based discrimination, discrimination on the grounds of caste and analogous systems of inherited status.13 Discriminatory practices against affected communities might include the restricted ability to alter inherited status; socially enforced restrictions on marriage outside the community; private and public segregation, including in education and access to public spaces, places of worship, and public sources of food and water; subjection to debt bondage; and subjection to dehumanizing discourses referring to pollution or untouchability (art. 1). Moving further and further away from the monolithic construction of women seen in first tier instruments, General Comment 29 also identifies the particular vulnerability of women to multiple forms of discrimination in the areas of personal security, employment, and education (art. 12).
The comment goes on to identify discrimination in education based on perceived gender roles for girls as well as caste or descent (art. 44). General Comment 29 specifically refers to sexual exploitation and forced prostitution as gendered experiences for women discriminated against on account of descent. The comment encourages states to account for such abuse and respond to it in projects designed to support these groups (art. 11). Both General Comments 27 and 29 with their careful attention to multiple and intersecting forms of discrimination have been successful in acknowledging claims of Third World feminists and the women-of-color movement that fighting discrimination requires an evaluation of interlocking forms of oppression. The CERD Committee also provides a gender analysis in General Comment 31 on the prevention of racial discrimination in the administration and functioning of the criminal justice system (2005).14 It is certain that in future comments gender will remain central to any analysis of racially discriminatory practices.
The CERD General Comments focus chiefly on discrimination that can be traced to state policy, for example, discriminatory entrance requirements for schoolchildren or discriminatory selection criteria for public housing. However, less attention is paid to investigating and naming inequality and discrimination as it manifests itself in formal and informal community institutions,