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.
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)
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
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
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
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)
N.B. v Slovakia, Application No. 29518/10, 12 June 2012
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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