by Darija Zeljko
I. Introductory
Remarks: Intersectionality and Violence against Women
In this post I will focus on how the
Inter-American Commission on Human Rights (hereafter: the Commission) and the
Inter-American Court (further: the Court or the IACtHR) approach the issue of
intersectionality in their decisions which deal with gender-based violence, particularly
in femicide and rape cases.
Intersectionality is a concept which was invented
by Kimberlé Crenshaw in 1989 when she coined the term in an influential paper ‘Demarginalizing
the Intersection of Race and Sex: A Black Feminist Critique of
Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics.’
In 1991 she was again a pioneer
among US scholars in noticing how experiences of black women are often
neglected by competent institutions and identity politics (feminism, racism)
when it comes to the issue of violence against women. Recently, international
and regional human rights bodies are starting to accept intersectionality and
develop it within their own frameworks. There exists consensus among academia
and international adjudicative bodies that ‘Multiple- or intersectional- inequality describes discrimination that occurs
as a result of how these different identities or situations or factors
interact.’ (p. 92) In paragraph 18 of its General Recommendation No.
28, the UN’s Committee on the Elimination of Discrimination against
Women (further: the CEDAW Committee) recognized that:
The
discrimination of women based on sex and
gender is inextricably linked
with other factors that affect women,
such as race, ethnicity, religion or
belief, health, status, age, class, caste and sexual orientation and gender
identity. Discrimination on the basis of sex or gender may affect women
belonging to such groups to a different degree or in different ways to men.
States parties must legally recognize such intersecting
forms of discrimination and their compounded negative impact on the women
concerned and prohibit them. (Emphasis added)
The most dangerous form of discrimination
against women is violence against women, as recognized by the CEDAW Committee
in its influential General
Recommendation No. 19 (1992).
Countless
examples worldwide show how violence against women may have fatal consequences
on women’s life and/or bodily integrity. It follows from the cited CEDAW
Committee’s Recommendation that violence against women (as a form of
discrimination) is also often inseparable with women’s other identities, such
as their age, race, socio-economic status, sexual orientation, etc.
The sad reality for women is that there is
no country or continent which we can say is ‘free’ from gender-based violence.
Reports clearly show, however, that some forms of violence against women are
more prevalent in certain contexts. For example, infamous data confirms that femicide
is a widespread problem in the Latin American and Caribbean countries, inasmuch
14
out of 25 countries with the highest rates of femicide are settled
there. I mention this because ‘just’ being a woman clearly constitutes a
potentially life-threatening risk in Latin America (as in other parts of the
world) which is exacerbated if we add further ‘dangerous’ factors such as being
poor, young, or of a ‘wrong’ background. When it comes to descent, in Latin America
indigenous women are in a specific vulnerable position. Their vulnerability to certain
forms of gender-based violence exists even in the most developed of the OAS
countries, such as Canada. Therefore, the Commission with a reason warned about
gross indigenous women’s rights violations in a report named ‘Missing
and murdered indigenous women in British Colombia, Canada.’ Also, (already) in 1994 in the
Article 9 of the Convention on the Prevention, Punishment and
Eradication of Violence against Women (more known under the acronym Convention
of Belem do Pará) special vulnerability of certain women is linked
with their:
…race or ethnic
background or their status as migrants, refugees or displaced persons. Similar
consideration shall be given to women subjected to violence while pregnant or
who are disabled, of minor age, elderly, socioeconomically disadvantaged,
affected by armed conflict or deprived of their freedom.
The landmark case in which the IACtHR
elaborated on intersectionality was Gonzales
Lluy et al. v. Ecuador (2015, para. 290):
In Talía’s case, numerous factors of vulnerability and
risk of discrimination intersected that
were associated with her condition as a
minor, a female, a person living in poverty, and a person living with HIV.
The discrimination experienced by Talía was caused not only by numerous
factors, but also arose from a specific form of discrimination that resulted
from the intersection of those factors; in other words, if one of those factors
had not existed, the discrimination would have been different. (Emphasis added)
Although the aforementioned case was not
dealing with femicide or ‘…sexual violence (it concerns the rights to life,
physical integrity and education), [and] it is relevant because it defines and
officializes intersectionality as a
judicial approach to discrimination in the IAS, and in consistency
with the UN committees.’ (p. 88)
In the following paragraphs I will discuss
how intersectionality enters into the femicide line of cases and then switch my
analysis to rape cases of the Commission and Court.
II.
‘Double
Vulnerability’ in Femicide Cases: the IACtHR
The first traces of the recognition of
intersectionality in the context of femicides may be found in the Court’s
landmark judgment Gonzáles
et at. (‘Cotton Field’) v. Mexico (2009). Among
other notable contributions to women’s rights adjudication, in ‘Cotton Field’ the Court pointed to the interconnection
of structural ‘culture of discrimination that influenced the murders of women.'
(para. 399) In this particular judgment, the IACtHR did not use the term
‘intersectionality’ per se, however,
it recognized that some women were ‘double’ vulnerable, meaning that the
victims suffered 'a double discrimination' because they were of the 'humble
origin.' (para. 391) Moreover, it can be concluded ‘between the lines’ that the
Court, besides the already mentioned fact that victims were of a ‘humble
origin’, also took into account victims' sensitive ages (while ordering
reparations, since two out of three victims in case were aged 15 and 17). In
the Court’s words: ‘The State must pay special attention to the needs and
rights of the alleged victims owing to their condition as girls who, as women,
belong to a vulnerable group.’ (para. 408)
However, critics noted the Court’s insufficient
reflection on the problem of intersectionality in the judgment since it was
well established in numerous independent reports that most murdered and
forcefully disappeared women in the infamous city of Ciudad Juárez were of a
lower socio-economic class. It should also be noted, however, that the IACtHR recognized
among the relevant facts that the victims of unprecedented widespread femicides
in this border city were in most cases ‘young, working class, employed in the
maquila sector, underprivileged, students or migrants’, but without further
elaboration. (para. 122) In 2017, the Commission decided to grant admissibility
to six cases of femicides (Silvia
Elena Rivera Morales y otras v. Mexico) in which the victims
were between the ages of 6 and 20, again committed in the city of Ciudad Juárez
in the period between 1995-2003. It will be interesting to see in this somewhat
‘follow-up’ case if the Commission will pay more attention to such a justified
criticism and decide to dedicate more space in its reasoning to the previously
partially neglected issue of intersectionality.
Similarly to the Cotton Field judgment, in Veliz
Franco et al. vs Guatemala
(2014) the Court merely superficially concluded that femicide ‘victims generally lived in poor neighborhoods
and engaged in low-income activities or were students.’ (para. 78) The case
dealt with the Guatemalan failure to investigate the femicide of a 15-year-old
girl. Again, the Court took a simpler approach and focused its analysis on the
fact that girls are “particularly vulnerable to violence” (para. 134) instead
of elaborating on an additional category of vulnerability: victim’s
socio-economic class. In the comprehensive book Intersectionality
in the Human Rights Legal Framework on Violence against Women: At the Centre or the Margins? (Cambridge University Press, 2017), Lorena
Susa rightly criticized the IACtHR’s approach in both cases because it ‘emphasized
the disproportionate number of murders of ‘women’ without really engaging in an
analysis of whether particular ‘groups of women’ are over-represented.’ (p.
153) Recognition that murders were motivated by the victim’s gender is a praiseworthy
element of the judgments, however, it seems that the Court perceived female
victims as a homogenous group (except in specially assessing their age when
ordering reparations). More focus on victims’ socio-economic status’ would be
of added value because it is clear from the States’ inappropriate practice that
authorities are conducting investigations sloppily (or even not conducting it
at all!) where victims of femicides, forced disappearances and sexual violence
are poor, migrant, uneducated, maquilas
workers and/or prostitutes. Deeply rooted gender-based prejudices and
stereotypes against those mentioned, in the eyes of authority, evidently second
categories of female victims. This leads to de
facto and de iure impunity or
minimal punishment for many committed crimes. Moreover, such impunity further
perpetuates gender-based violence against marginalized women.
To conclude, the IACtHR probably omitted
discussing the interconnection between class and gender due to, as Sally Merry
Engle noted in the influential book Gender
violence: A Cultural Perspective (Wiley-Blackwell, 2009), ‘…difficulties of
statistically measuring the impact of poverty, race and migration status on
gender violence.’ (p. 123) However, such widespread and systematic violence
against women should be assessed in the context of all other interrelated forms
of oppressions, such as racism, homophobia and/or xenophobia (depending on the circumstances
of the case).
III.
Rape
Cases:
As
seen in the Cotton Field and Veliz Franco judgments, I would argue
that the Court and the Commission are particularly sensitive and attentive when
it comes to the violation of girl’s rights since both institutions clearly
recognize their special vulnerability due to age and gender. Likewise in the
case V.R.P
and V.P.C. v. Nicaragua, a 9-year-old girl was the victim of a gruesome
sexual assault committed by her own father. The Commission inter alia noted how the ‘situation is exacerbated
by the nature of the offence, as well as the situation of double
vulnerability of V.P.R as a woman and a child.’ Since Nicaragua
did not comply with the Commission’s recommendations, the case was referred to
the IACtHR
in 2016 and therefore it will be interesting to see if the IACtHR will focus its
analysis in more depth on the issue of intersectionality. Lorena
Sosa is of the opinion that: ‘The focus on the girl-child,
encouraged by Article 19 of the American Convention, is the most relevant element
for incorporating diversity in these cases…’ (p. 166)
While
discussing numerous violations in the Fernández Ortega et alt. v. Mexico (2010)
judgment, the Court recognized the ‘special vulnerability of indigenous
woman’ (para. 230) who was a victim
of brutal rape. However, the Commission
went one step further than the Court in Fernández
Ortega (2009) because it highlighted that indigenous women ‘suffer
from a combination of various forms of discrimination: as women, because of
their ethnic or racial origin, and/or by virtue of their socio-economic status.’
(para. 179) Instead of focusing their analysis on the special vulnerability/multiple
discrimination of indigenous women, in my view the more accurate terminology
would be to use intersectionality since it, as Lorena
Sosa pointed out, ‘…emphasizes long-term social and structural
constructions of inequality’ (p. 165) which indigenous women unquestionably face.
However, according to the article written by Mariana Prandini Assis Violence
against Women as a Translocal Category in the Jurisprudence of the
Inter-American Court of Human Rights (Direito&Práxis
revista, 2017), a notable contribution of the Court is that it: ‘went further
to link the difficulties faced by the indigenous peoples to access justice, to
the historical process of marginalization, deprivation and non-recognition
within the Mexican nation state.’ (p. 1533) Likewise when assessing the victim’s
consistency during testimonies, the Court was clearly well aware of the victim’s
difficult personal situation from which it is easy to detect many (intersectional/structural)
difficulties which Inés Fernández
Ortega faced as: ‘…an indigenous woman, who lived in an isolated
mountainous area, who had to walk many hours for denouncing her rape to health
and legal authorities who did not speak her language...’ (para. 107)
In
Rosendo
Cantú (2010), the rape victim was an indigenous girl and the
Court reinforced its view according to which she was at a particular risk of
violence both as a minor as well as an indigenous descendant. Moreover, while
ordering extensive reparations, in Rosendo
Cantú and Fernández Ortega et al. v
the IACtHR evidently took into account indigenous and gender perspectives which
will hopefully have positive impacts on pro
futuro victims of sexual violence.
IV. Conclusion:
It
is clear that intersectionality in the discussed gender-based violence cases
decided by the IACtHR was firstly referred to under the notion of women’s (special)
vulnerability, similar to the approach taken by the Council of Europe’s
(further: the CoE) Committee of Ministers which noted in the Recommendation
Rec (2002)5 on the protection of women against violence that
‘women are often subjected to multiple
discrimination based on their gender.’ As in Article 8 of the Convention do
Belem do Pará, the CoE’s Convention
on Preventing and Combating Violence against Women and Domestic Violence
(more known under the acronym Istanbul Convention) also does not explicitly use
the term intersectionality. It does, however, recognize the greater risk –
special vulnerability- faced by certain groups of women (e.g. migrant women,
women with disabilities). Some aspects of the European Court on Human Rights’
(further: the ECtHR) case-law on violence against women are slowly developing
towards recognition of intersectionality (e.g. when it comes to
forced sterilization of Roma women, like in N.B.
v Slovakia, Application No. 29518/10, 12 June 2012, para. 96), however,
the ECtHR is still reluctant to apply an intersectional lense (and consequently
to use the term) even in cases where intersectionality is obviously an issue. Instead,
the ECtHR refers to certain categories of victims as ‘a particularly vulnerable
group’, Roma women being the most prominent example. Therefore, even when it
comes to the variety of forms of violence against women where intersectionality
was recognized, it can be concluded that both the Court and the Commission have
much more developed case-law than their European counterpart, and furthermore,
that their jurisprudence is in accordance with CEDAW Committee’s recommended
standards.
Nevertheless,
there is still space for further improvements with the Court’s and the Commission’s
approach in this area, especially since there exists an inconsistency with the
(mis)usage of terms ‘special vulnerability’ and ‘intersectionality.’ Experts like
Lorena Sosa in her article Inter-American
case law on femicide: Obscuring intersections? (Netherlands
Quarterly of Human Rights, 2017, Vol. 35(2)) noticed how ‘the Commission has
shown more inclination than the Court towards the adoption of an intersectional
approach, particularly in recent reports.’ (p. 102) Additionally, it is evident
that there is prioritization when it comes to dealing with certain categories
of intersectionality in gender-based violence cases. Some mentioned critics warned
that the Court omitted an analysis of the clear interconnection between class
and gender in femicide cases (Cotton
Field judgment being the most prominent example). A contrario, the Court pays much more attention to the special
vulnerability of girls in the context of gender-violence (including both
femicide and rape cases). Certainly, the most praiseworthy aspect of the Court’s
current approach to intersectionality is, as Lorena
Sosa concluded in her book: ‘Recognition of the importance of
intersecting grounds… in relation to
rape of indigenous women, in which gender, indigenousness, language and, more
notably, child status were addressed by the Court.’ (p. 166)
Finally,
the need for firmer analysis by the Court and Commission on intersectionality
in their decisions is important in order to emphasize the structural
discrimination which certain groups of women are confronted with. Elaboration
on intersectional causes of discrimination that marginalized women often face
may have positive impacts on victims, OAS Member States and also, according to Rosa
Celorio’s article The
rights of women in the Inter-American System of Human Rights: Current
opportunities and challenges in standard-setting (University of
Miami Law Review, Vol. 65, 2011), ‘to the organs of the system to develop
important concepts related to the social exclusion faced by these groups and to
report on the specific barriers they face in their pursuit to justice.’ (p. 860)
References
Books:
Aldao,
Martín, Clérico, Laura, Ronconi, Liliana: A
Multidimensional Approach to Equality in the Inter-American Context:
Redistribution, Recognition and Participatory Parity in Armin von Bogdandy et alt. (editors): Transformative Constitutionalism in Latin America: The Emergence of a
New Ius Commune, Oxford
University Press, 2017
Engle,
Sally Merry: Gender violence: A Cultural
Perspective, Wiley-Blackwell, 2009
Sosa,
Lorena: Intersectionality in the Human
Rights Legal Framework on Violence against Women: At the Centre or the
Margins?, Cambridge University Press, 2017
Articles:
Celorio,
Rosa: The rights of women in the
Inter-American System of Human Rights: Current opportunities and challenges in
standard-setting, University of. Miami Law Review, Vol. 65, 2011
Sosa,
Lorena: Inter-American case law on
femicide: Obscuring intersections?, Netherlands Quarterly of Human Rights,
2017, Vol. 35(2)
Prandini
Assis, Mariana: Violence against Women as
a Translocal Category in the Jurisprudence of the Inter-American Court of Human
Rights, Direito&Práxis revista, 2017
Martin
Beringola, Ana: Intersectionality: A Tool
for the Gender Analysis of Sexual Violence at the ICC, Amsterdam Law Forum,
Vol. 9, No. 2, 2017
Treaties and General Recommendations:
CoE,
Convention on Preventing and Combating Violence against Women and Domestic
Violence, 2009
OAS,
Inter-American Convention on the Prevention, Punishment and Eradication of
Violence against Women ("Convention of Belem do Para"), 9 June 1994
CEDAW/C/GC/28,
General recommendation No. 28 on the core obligations of States parties under
article 2 of the Convention on the Elimination of All Forms of Discrimination
against Women, 16 December 2010
Committee
of Ministers, Recommendation Rec (2002)5 on the protection of women against
violence
The
Commission, Missing and Murdered Indigenous Women in British Columbia, Canada, OEA/Ser.L/V/II.,
Doc. 30/14
Cases:
The
IACtHR
Gonzales Lluy et al. v.
Ecuador, 1 September 2015
Gonzales et al. v. Mexico
(Cottonfields case), 16 November 2009
Veliz Franco et al. v.
Guatemala, 19 May 2014
Fernández Ortega et al.
v. Mexico, 30 August 2010
The Commission
V.R.P and V.P.C. v.
Nicaragua, Parts of English translation available on: http://www.oas.org/en/iachr/media_center/PReleases/2016/138.asp,
accessed on 3/6/2019
Application
to the IACtHR in the case of Inés
Fernández Ortega, May 7, 2009 (Case 12.580)
The ECtHR
N.B. v Slovakia,
Application No. 29518/10, 12 June 2012
Web
pages:
http://www.unwomen.org/en/news/stories/2017/2/take-five-adriana-quinones-femicide-in-latin-america,
accessed on 3/7/2019
https://rfkhumanrights.org/news/iachr-femicide-admissibility,
accessed on 3/6/2019
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