Introduction
Womenâs rights and gender justice have become global policy issues, which can no longer be ignored in the design of transitional justice mechanisms for societies transitioning from either armed conflict or authoritarianism to a peaceful democracy (OâReilly, 2016). This is in the light of a combination of developments in the interpretation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the United Nations (UN) resolutions starting with UN Resolution 1325 in 2000 and policies of regional and international organizations (General Comment 30 on Women in Conflict Prevention, Conflict and Post-Conflict Situations of the CEDAW Committee, UNSCR 1325âUNSCR 2242; Shepherd, 2014). Also noteworthy are the UN General Assembly Basic Principles and Guidelines on the Right to Remedy and Reparation (A/Res/60/147) and the Nairobi Declaration on Women and Girlsâ Right to a Remedy and Reparation.{G} ender considerations should be integrated throughout all TJ initiatives. Ensuring gender justice means not only challenging impunity for sexual and gender-based violence but also ensuring womenâs equal access to redress for human rights violations and abuses and involvement in post-conflict reform. (United States Department of State, 2016)
With regard to policies, the recently adopted European Union policy on support to transitional justice includes a gender focus (Council of the European Union, 2015, p. 8). Similarly, gender integration features as one of the guiding principles in the USâ Department of State policy understanding of transitional justice initiatives (United States Department of State, 2016). Further, the Human Rights Council has recently appointed an independent expert âon protection against violence and discrimination based on sexual orientation and gender identityâ (A/HRC/32/L.2/Rev.1, 2016).
These international legal and policy developments were to some extent inspired by civil society advocacy and feminist criticisms that, notwithstanding their involvement during times of conflict either as civil society actors or as combatants, women are marginalized and excluded from peace-making and peace-building processes (Buckley-Zistel & Stanley, 2011; NĂ AolĂĄin, Haynes, & Cahn, 2011; Rees & Chinkin, 2015). This is also a response to critiques that paradigmatic transitional justice discourses and practices neglect the varied gender dimensions as well as the effect of conflict or authoritarianism on the human rights of women (Ni Aolain, 2011). There is also an emerging scholarship, which draws attention to the need to factor masculinities and rights of sexual minorities in transitional contexts (Hamber, 2007, 2016; Mudell, 2007).
Against this background, enhanced international legal practice is currently dedicated to three key areas (Turner, 2017, pp. 26â30). The first focus has been on the need for an acknowledgment of the gender-based human rights violations of both sexes which occur in periods of either authoritarianism or armed conflict (Lemaitre & Sandvik, 2014; Oosterveld, 2009; Sankey, 2013). Then, there is attention to the necessity of including both men and women in peace negotiations and mechanisms for redressing the past (Gopinath & DasGupta, 2006, p. 202; McWilliams & Kilmurray, 2015). Third, there is the preoccupation with the recognition that gender is a structural feature of transitional justice (Bell & OâRourke, 2007; OâRourke, 2013).
Consequently, womenâs rights and gender justice have now joined âdemocracy, liberalism, rule of law and human rightsâ as benchmarks of political assessment (Moyo, 2012). Liberal democracies that respect the rule of law, human rights and women rights are legitimate and those that do not may risk military intervention (Engle, 2007; Moyo, 2012). Thus, whereas in the past, transitional societies may have adopted transitional justice policies, which are gender blind, nowadays there are legal, political and economic considerations for doing so. In this vein, there is a possibility that some state actors may promote womenâs rights and gender justice to circumvent the perils of contest to their own authority (Sundkvist, this volume).
Nonetheless, not just state actors allegedly appropriate gender and womenâs rights for political ends. The literature abounds with discussions of how âdonorâ states recognize and promote womenâs rights in transitional societies while rolling out neoliberal policies, which usually have seriously gendered consequences that are often disadvantageous to women (Donais, 2005; Gultekgn, 2001; Haynes, 2010). As these writers have pointed out, the ideology that free-market capitalism is innate to the rule of law, democratization and human rights do not fit the realities of most low-income transitional societies (Haynes, 2010, pp. 1805â1815). Neoliberalismâs policies of privatization, market liberalization and internationalization have negative effects on women and other vulnerable groups. This is because, among other factors, a societyâs gender, ethnic, race and class differences are often mirrored when competing in the âfreeâ market (Haynes, 2010, pp. 1819â1821). In addition, cultural norms and practices including laws on property ownership may define womenâs roles in such a way that their participation in the market depends on their association with men. Indeed, few women can prosper in a free-market economy as participation in a free-market economy is gendered.
Supplementary to the politics of transitional justice, there are practical challenges relating to the domestication of abstract universal human rights norms. Human rights law can be said to be conceptually gender biased mainly because of the traditional public/private divide. This means that conventionally the focus has been on violations which are attributable to public bodies and there has been limited attention paid to the socio-economic structures within which violence against women (VAW) is committed (Romany, 1993). In addition, there may be clashes between womenâs claims to gender equity and domestic legal entrenchments, which are usually justified by religious and cultural traditions.
Thus, it may be simplistic, monolithic and essentializing to argue that universal gender norms always liberate women and other marginalized groups from either their religion or culture. This is because religion and culture interconnect with gender and womenâs rights in complex ways (Report of the Special Rapporteur in the field of cultural rights A/67/287). Some of these complexities can be garnered from the submissions of some states that either voted against or abstained when the Human Rights Council voted on the resolution on âprotection against violence and discrimination based on sexual orientation and gender identityâ (A/HRC/32/L.2/Rev.1). Nigeria, on behalf of the Organization of Islamic Cooperation, stated that the resolution privileged Western notions of sexual orientation and gender identity at the expense of most societiesâ views. Also significant here is the African perspective which was presented by Botswana. According to the Africa Group:
This demonstrates that gender justice has joined human rights in the contestation between the Western states and developing countries on universality versus cultural relativism. There are also vivid differences on the question as to what should be prioritized in human rights interventions. However, the history of the development of international law reveals that amidst such contestations there are opportunities for agency. Indeed, there are opportunities for feminist agency within the law such as the use of United Nations Security Council Resolutions as advocacy tools (UN Women, 2015). Progress can also be discerned from recent developments in international law such as its contemporary regulation of rights between individuals. Areas which were traditionally left to statesâ private law within the purview of human rights, for example rights to reproductive health and attention to violence and discrimination based on sexual orientation and gender identity, are to some extent now a part of the human rights discourse (see also CEDAW General Recommendation 19). It is also evident from recent general comments of some committees tasked with interpreting human rights and women rights treaties that the law is not static (see, e.g., CESCR General Comment no. 16, 2005; see also Nussbaum, 2016).{N}on-internationally agreed notions such as sexual orientation and gender identity are given attention, to the detriment of issues of paramount importance such as the right to development and the racism agenda. (Narrain, 2016)
Against this background, the invitation to contribute chapters to this book had specifically asked for papers from scholars and practitioners working on womenâs rights issues, broadly defined, in post-transition countries in Africa, Latin America, the Middle East and Southeast Asia and the Pacific regions. In the case of Africa, we were particularly interested in submissions, which focused on countries that experienced the âArab Spring Uprisingâ in North Africa. With respect to the Pacific regions, we were particularly seeking case studies from Timor-Leste.
The contributors were asked to take cognizance of womenâs diversity, to reflect on the impact of transitional justice and human rights policies/institutions on women and to examine these policiesâ contribution to the pursuit of âgender justiceâ in post-conflict societies. They were also asked to analyse both the possibilities and limitations of using legal strategies to promote womenâs rights in a context in which women are often caught between âneoliberalâ agendas and âcultural relativistâ agendas. Furthermore, we welcomed submissions that would draw out the role of different actors, including womenâs activists, in advancing a gender justice agenda, as well as those which would consider some of the tensions and barriers to the pursuit of this goal.
The authors acknowledge that gender justice issues are not merely feminist concerns. Whereas gender denotes the socially constructed characteristics of either femininity or masculinity, sex refers to bio...