Women, Life, Freedom: Normative Status of Gender-based Discrimination

[Psymhe Wadud is a Lecturer in Law at the Bangladesh University of Professionals and currently pursuing her Bachelor of Civil Law at the University of Oxford.]

Introduction

The year 2022 has been marred by systemic discrimination, violence, and endemic oppression against women all across the world. The latter half of the year in particular witnessed outrageous manifestations and images of such discrimination and violence. September 2022, for instance, saw the death of 22-year-old Mahsa Amini, a Kurdi woman from Iran in custody, following her arrest by the Iranian morality police for allegedly breaching Iran’s strict rules for women on wearing headscarves (see here). This sparked protests in Iran that the government confronted mercilessly. December 2022 witnessed the de facto authorities in Afghanistan banning women from secondary as well as higher education (and NGO works) and thereby adding yet another layer to the rights violations systematically committed against the Afghani women (see here). 

The custodial death of Amini seen in the light of the gendered premise of Iran’s statecraft indicates to what can be dubbed as ‘gender apartheid’. Same goes for the Taliban regime and its institutionalized oppression, segregation, and marginalization of women. Both the incidents lay bare what the rulers- both de facto and de jure– stand for with regard to the “woman question”. While the institutionalized attacks on women’s autonomy, agency, and rights, manifested through discriminatory laws, practices, and actions, can be underscored as excesses of statist patriarchy and misogyny, what still remains to be unearthed is why the international actors react to them the way they do. This post argues that international responses to both Iran and Afghanistan reveal an attitudinal myopia towards gender-based discrimination in general. To substantiate this, responses made by the UN are used as instances. 

This post first critiques the UN responses made to the Iran and Afghanistan incidents and using George Floyd murder as a comparator, shows how disproportionately race and gender get treated. It then briefly discusses the status of gender discrimination within the hierarchy of norms that bind states internationally. It argues that since gender-discrimination is yet to be viewed as a stand-alone peremptory norm, international actors fail to approach or view Iran and Afghanistan, among others, exactly for what they are. 

Prelude

The murder of African-American man George Floyd on 25 May 2020 and the ensuing mass protests worldwide garnered international attention. Responding to the situation, the Human Rights Council met in an urgent debate and adopted resolution 43/1. In the resolution, the Council requested the High Commissioner to prepare a comprehensive report on systemic racism, violations of international human rights law against Africans and people of African descent by law enforcement agencies, especially those incidents that resulted in the death of George Floyd and other Africans and people of African descent, to contribute to accountability and redress for victims (see here). The resolution also urged the High Commissioner to examine government responses to anti-racism peaceful protests, including the alleged use of excessive force against protesters, bystanders and journalists, to be submitted to the Council at its forty-seventh session. 

In comparison, the responses to the death of Mahsa Amini, ensuing mass protests, and government’s ultra-violent responses, or to the Taliban ban on women’s education and work seem rather unsystematic and sparse. The UN Security Council expressed its deep concern  about the Taliban ban on women’s education and work in Afghanistan. However, in absence of vigorous acknowledgment of systemic and institutionalized gender-discrimination across the world and assertion of commitment on ensuring accountability or redressing the victims, the ‘concern’ reads rather condescending. Pertinent to mention, one of the greatest concerns raised with regard to the ban is how it has the potential to impede the development of Afghanistan, and thereby harm all Afghan people. Though useful, this tendency of viewing women’s rights violations within the broader canvas of a country’s development, in a way marginalizes women’s personhood and agency. It is important for the UN to not render women invisible by viewing women’s issues as issues of all, and as issues connected to the country’s development as such. 

Pertinent to mention, no statement was issued by the UN Security Council following the death of Amini and the mass protests in Iran. UN Women was prompt to issue a statement noting in the opening that ‘the death of any young person, any young woman, is tragedy beyond measure’ (see here). A notable development following Mahsa’s death on the international plane was the removal of Iran from the Commission on the Status of Women (CSW). The Economic and Social Council passed a resolution for Iran’s removal from the CSW for the remainder of the term 2022-2026. But what good did this removal do for the Iranian women and the causes they are fighting for? Removal of Iran from the principal global intergovernmental body exclusively dedicated to gender equality in a way also masked and silenced the women of Iran. It did not alleviate their plight in any way. It is as though we shut our eyes and disregarded the existence of Iran on the map. Overall, the responses have been sparse, ineffective, and limp and they show that gender discrimination is still viewed from male lenses, scrutinized from male standpoints.

Both Iran and Afghanistan are two broad strokes on the global canvas of gender discrimination and gender-based violence. The responses only make us ponder— what is the normative significance of gender discrimination on the international plane so as to garner such, and not any different, responses?

Normative Status of Gender-discrimination 

A feminist concern with the International Human Rights Law order in general is that it marginalizes and invisibilizes women in many contexts. For instance, feminists have for long critiqued how white supremacy is considered as an international concern, but male supremacy is not (see here and here). More specifically, Charlesworth and Chinkin argue that peremptory norms are determined from an exclusionary male standpoint. Therefore, protection from racial discrimination, slavery, torture (but not gender-based discrimination or gender-based violence), are considered jus cogens or peremptory norms (see, here). Regardless of how institutionalized, systemic, or endemic violence against women or gender-based discrimination is, gender does not concern the international community as much race, for instance, does. 

In 2017, in the case The Prosecutor v Bosco Ntaganda, the Trial Chamber of International Criminal Court observed that ‘the prohibition against rape and sexual slavery [are] peremptory norms,’ and rape and sexual slavery are ‘prohibited at all times, both in times of peace and during armed conflicts, and against all persons, irrespective of any legal status’ (see here and here). 

However, disregarding the Ntaganda jurisprudence, the International Law Commission  excluded, without conducting a comprehensive examination, freedom from gender discrimination as a stand-alone peremptory norm (see here). Arguably, the fifty-five reservations to the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) erected a barrier to its jus cogens status, even though the twenty-one reservations to the Convention Against Torture (from 173 state parties— fifteen less than those to CEDAW) did never bar ‘prohibition from torture’ to be accepted as a peremptory norm (see here). 

As it transpires, the gender of jus cogens veers, decidedly masculine. This shows that the international community is yet to accept gender discrimination as malignant— protection from gender-based discrimination is yet to be valued as a non-derogable norm of highest significance. Perhaps, it is this viewing of gender-discrimination as less malignant (to the level of being almost benign), that dictates the international responses to violence against women across the globe. 

Concluding Remarks

Normative significance of different issues plays an important role in steering the UN and the international community at large into various directions. While violations of peremptory norms are outrightly, vigorously, and effectively condemned, violations of non-peremptory norms receive mostly ineffective and unhelpful “concerns”. The gendered hierarchy of norms on the international plane is something we ought to rethink and address anew now, especially in the context of the recent incidents. 

For instance, gender-discrimination, when seen as a peremptory norm, can pave the way for viewing the Taliban ban and the mandatory veiling rules in Iran for what they are: egregious, violent, and as violations of non-derogable norms— not merely as issues that concern all Iranians or all Afghans or that impede the development of any one of the individual state/s.

The feminist protests are not over a piece of fabric or over education and work only, they are rather fights against gender apartheid generally— in Iran, Afghanistan, and across the globe.  They need to be seen for what they are.