The Role of CEDAW in Combating Gender-Based Violence in Conflict Zones
CLAIRE CRITES* ∙ August 16, 2023 ∙ ARTICLE
Gender-based violence (GBV) against women and girls is one of the most pervasive human rights violations in the world. Globally, 736 million women and girls, approximately one in three, have been victims of GBV at least once in their lives.[1] GBV is an endemic that knows no cultural, social, national, or economic boundaries.[2] Despite the ubiquitous and insidious nature of this human rights violation, it is often treated with apathy and victim-blaming, which shrouds this crime “in a culture of silence.”[3] GBV is particularly heinous and pervasive in conflict zones. Women and girls’ bodies are commodified in wartime as the “spoils of war,” making mass rape and sexual violence a common warfare tactic that sadistically degrades, humiliates, intimidates, and injures women and girls in warring communities.[4] The United Nations (UN) human rights mechanisms have taken major steps within their internal supervisory network to combat this human rights violation over the past three decades.[5] One of the UN human rights bodies that has had a significant impact in systemically combating GBV and the way GBV manifests in conflict zones is the UN’s Committee on the Elimination of Discrimination against Women (CEDAW). CEDAW, which was established by the Convention on the Elimination of All Forms of Discrimination Against Women (Convention) in 1979, is a treaty body that monitors the implementation of the Convention.[6] There are currently 189 state parties to the Convention, and as such, they are legally required to follow the Convention, which includes eradicating all forms of GBV in their home countries.[7] The two key tools CEDAW uses to influence change within signatory states are through its general recommendations and concluding observations.[8] Using general recommendations and concluding observations, CEDAW has revolutionized how GBV in conflict zones is normatively perceived, which has led to pragmatic policy and legal changes within signatory states to eradicate GBV.
CEDAW releases general recommendations to highlight and provide guidance to states “on any issue affecting women to which it believes the State parties” should prioritize.[9] General recommendations “provide guidance on the content of the legal obligations” to state parties under CEDAW’s Convention.[10] CEDAW’s general recommendations have proven to be essential to combating GBV, developing the crime as a human rights violation, and in thwarting GBV in conflict settings. Prior to 1992, the UN did not view GBV as a human rights violation but rather characterized it as a private, domestic crime. However, the advocacy of civil society and activists within CEDAW resulted in the UN undertaking a drastic shift in its approach to GBV.[11] In its 1992 General Recommendation No. 19, CEDAW was the first UN body to recognize “violence against women is a form of discrimination” and thus, required states to work towards ending GBV.[12] General Recommendation No. 19 reflected a tremendous shift within the UN as it moved away from treating GBV as a private issue that women were exposed to by accident and towards treating it as human rights violation that was “the result of structural, deep-rooted discrimination.”[13] Despite the fact CEDAW’s Convention does not contain a single express reference to GBV, CEDAW declared GBV violates Article 1 of the Convention and has spearheaded the charge to ensure that GBV is an issue “addressed at the international level.”[14] Since CEDAW’s recognition of GBV as a form of discrimination against women and girls, CEDAW has become a catalyst for international norms, laws, and standards concerning GBV.[15]
Following the establishment of GBV as an international human rights violation through General Recommendation No. 19, CEDAW authored an additional general recommendation on GBV in conflict zones, which further developed GBV international jurisprudence. General Recommendation No. 30 was published in 2013 with the primary aim of ensuring “women’s rights are protected before, during and after conflict.”[16] Based upon the precedent of General Recommendation No. 19, CEDAW reestablished that both state and non-state actors must be prevented from engaging in GBV within conflict settings.[17] General Recommendation No. 30 stressed the extreme GBV human rights abuses women and girls in conflict zones face and thus called upon states “to understand the relevance and application of CEDAW to situations of conflict.”[18] The right of women and girls to be free from violence is particularly violated in a conflict setting, and General Recommendation No. 30 tasked states with a “duty to protect” women and girls in these settings.[19] Under this duty to protect, states must “prevent, investigate, punish, and ensure redress” for the victims of GBV in conflict zones.[20] General Recommendation No. 30 declared that even if states are weakened, fragile, failed, or collapsed due to conflict, they still must “ensure full respect for and enjoyment of women’s rights at all times.”[21] General Recommendation No. 30 has been “pivotal in intentionally driving” a shift in focus within the UN system onto efforts to combat GBV in conflict settings.[22] By highlighting the violence women and girls face in conflict zones, CEDAW further established itself as a platform for building international jurisprudence concerning GBV.[23] Through General Recommendation No. 30, CEDAW boldly reminded states that conflict does not allow them to shirk their responsibilities to the Convention.[24]
Following General Recommendations No. 19 and 30, there has been considerable change in how state signatories address GBV in conflict settings. While general recommendations are broad and can contain vague, aspirational statements, they facilitate much-needed normative change that leads to practical recommendations for signatory countries.[25] A particular country that has implemented CEDAW recommendations related to GBV while in conflict is South Sudan. South Sudan ratified CEDAW’s Convention in 2014 in an effort to establish a legal framework to combat GBV following its civil war.[26] In 2013, civil war erupted in South Sudan between the two largest ethnic groups, the Dinkas and the Nuers, concerning political control of the South Sudanese government.[27] Following an attempted coup from the Nuer ethnic majority, violence emerged throughout the state that specifically targeted civilians along ethnic lines, which included mass rape and sexual violence against women and girls.[28] The Organization for World Peace reported that as of June 2022, up to 65% of South Sudanese women and girls have experienced physical or sexual violence since the war began.[29] Additionally, the UN Human Rights Council published a 48-page report in 2022 on South Sudan that described “a hellish existence for women and girls” as “widespread rape is being perpetrated by all armed groups across the country, often as part of military tactics.”[30] During the five years of war, an estimated 400,000 were killed, and an additional four million fled the country or were internally displaced.[31] After five years of intense fighting and violence, a ceasefire and peace agreement between the warring parties was signed in 2018; however, despite the official end of the war, it is a “fragile peace” as there are still reports of continued attacks and human rights violations.[32]
Within the context of South Sudan’s flagrant violations of the Convention, when South Sudan submitted its state report to CEDAW in 2021, CEDAW issued robust concluding observations to attempt to protect women and girls in the region.[33] Concluding observations are published after CEDAW reviews a state party’s report and are “a comprehensive overview of the status of human rights protection for women in a state party.”[34] The crucial aspect of concluding observations that facilitate change within state parties are the recommendations CEDAW enumerates within the report, which aim to develop the rights of women and girls within the state party.[35] While these recommendations are not legally binding, they are crucial as they make the normative, broad changes established by general recommendations a practical, country-specific reality.[36] Concluding observations draw upon the jurisprudential precedent of general recommendations, which provides justification and backing for the recommendations made in the concluding observations.[37] For example, when making recommendations on how to improve the South Sudanese judiciary for women seeking redress for conflict-related sexual violence, CEDAW relied upon General Recommendation No. 30 as its justification.[38] The interconnection of CEDAW’s general recommendations and concluding observations reinforces and further develops international jurisprudence related to GBV.[39]
Following the publication of South Sudan’s concluding observations, South Sudan has successfully implemented and is currently in the process of implementing many of CEDAW’s recommendations. For example, South Sudan recently ratified The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) in March of 2023, which was an express recommendation made by CEDAW.[40] The Maputo Protocol is “the most comprehensive and progressive” regional instrument on women’s rights, and its ratification ensures another level of protection for women and girls in South Sudan.[41] Another concluding observation that South Sudan is in the process of complying with is drafting a GBV bill.[42] The aim of the GBV bill is to “reform, consolidate and harmonize laws and provisions related to GBV” within South Sudan.[43] CEDAW’s concluding observations called upon South Sudan to adopt an anti-GBV bill “with strategy and adequate resources for its implementation,” and by continuing the drafting process on this bill, the South Sudanese government is working towards fulfilling this recommendation.[44] Another concluding observation South Sudan has implemented is “seeking technical assistance from the international community” to build and strengthen South Sudan’s judiciary process for women and girls seeking redress for GBV violations.[45] In February of 2022, South Sudan began working with the Office of the United Nations High Commissioner for Human Rights (OHCHR) to seek technical assistance and capacity building of its judicial system.[46] However, despite these successes, South Sudan still needs to make progress on many of CEDAW’s concluding observations. For example, CEDAW has urged South Sudan to “immediately operationalize” the African Union (AU) led Hybrid Court of South Sudan, which was established through the Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS), finalized in 2018.[47] The goal of the Hybrid Court is to investigate and prosecute crimes against civilians during the civil war as these victims lack other justice avenues; however, South Sudan has made zero progress on implementing the Hybrid Court.[48] While South Sudan still has many advancements to make to eradicate and provide redress for conflict-related GBV, the progress that has been made is directly connected to the concluding observations made by CEDAW.
In conclusion, CEDAW has served as the key catalyst for establishing GBV as an international human rights violation. Through its general recommendations, CEDAW has boldly developed international human rights jurisprudence concerning GBV in conflict settings and has made eradicating GBV a key international human rights priority within the UN. By highlighting and prioritizing conflict-related sexual violence within international law, CEDAW has required its state signatories to adequately address this human rights violation. As seen in its concluding observations to state parties, including South Sudan, CEDAW relies upon its general recommendations to draft guidance to states on how to combat GBV in conflict zones. The interplay between CEDAW’s general recommendations and concluding observations has facilitated pragmatic change in how the South Sudanese government responds to GBV. Despite the enormous progress necessary to fully eradicate GBV, particularly in conflict settings, CEDAW’s general recommendations and concluding observations have been essential in making GBV a violation of international human rights law and, thus, a key priority to be addressed by the international community.
* JD Candidate at Notre Dame Law School, 2024.
[1] Facts and Figures: Ending violence against women, UN Women (Feb. 2022), https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures (last visited March 26, 2023).
[2] Gender-based violence, United Nations Population Fund (UNFPA), https://www.unfpa.org/gender-based-violence (last visited March 26, 2023).
[3] Id.
[4] Charlotte Lindsey, et al., Women facing war, International Committee of the Red Cross (Oct. 2001), https://www.icrc.org/en/doc/assets/files/other/icrc_002_0798_women_facing_war.pdf (last visited March 26, 2023).
[5] Introduction to the Committee, Office of the United Nations High Commission for Human Rights (OHCHR), https://www.ohchr.org/en/treaty-bodies/cedaw/introduction-committee (last visited March 26, 2023).
[6] Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13; 19 I.L.M. 33 (1980).
[7] CEDAW in your Daily Life, OHCHR, https://www.ohchr.org/en/treaty-bodies/cedaw/cedaw-your-daily-life (last visited March 26, 2023).
[8] Rules of procedure and working methods, OHCHR, https://www.ohchr.org/en/treaty-bodies/cedaw/rules-procedure-and-working-methods (last visited March 26, 2023).
[9] General Recommendations, OHCHR, https://www.ohchr.org/en/treaty-bodies/cedaw/general-recommendations (last visited March 26, 2023).
[10] OHCHR, supra note 8.
[11] Gender-based violence against women and girls, OHCHR, https://www.ohchr.org/en/women/gender-based-violence-against-women-and-girls (last visited March 26, 2023).
[12] Committee on the Elimination of Discrimination Against Women (CEDAW), General Recommendation No. 19: Violence against women, UN Doc. A/47/38 (1992).
[13] OHCHR, supra note 11.
[14] Ronagh J. A. McQuigg, The CEDAW Committee and Gender-Based Violence against Women, 6 Int’l Hum. Rts. L. Rev. 263, 264 (2017).
[15] Id. at 265.
[16] Guidebook on CEDAW General Recommendation No. 30 and the UN Security Council Resolutions on Women, Peace and Security, UN Women (2015), https://asiapacific.unwomen.org/en/digital-library/publications/2015/08/guidebook-on-cedaw-general-recommendation-no-30#:~:text=CEDAW%20General%20Recommendation%2030%20is,women%2C%20peace%20and%20security%20agenda (last visited March 26, 2023).
[17] Committee on the Elimination of Discrimination Against Women (CEDAW), General Recommendation No. 30: On women in conflict prevention, conflict and post-conflict situations, UN Doc. CEDAW/C/CG/30 (2013).
[18] Fionnuala Ní Aoláin, et al., Unlocking the Potential of CEDAW as an Important Accountability Tool for the Women, Peace and Security Agenda, in The Oxford Handbook of Gender and Conflict 172 (2017).
[19] General Recommendation No. 30, supra note 17, at 5.
[20] Ní Aoláin, supra note 18, at 174.
[21] Id. at 175.
[22] Megan Alexandra Dersnah, United Nations gender experts and the push to focus on conflict-related sexual violence, 2 Eur. J. of Pol. and Gender 41, 42 (2019).
[23] Id.
[24] Id.
[25] Id. at 43.
[26] South Sudan ratifies CEDAW convention, United Nations Office for the Coordination of Humanitarian Affairs (Sep. 2014), https://reliefweb.int/report/south-sudan/south-sudan-ratifies-cedaw-convention#:~:text=3%20September%202014%20%2D%20South%20Sudan's,Discrimination%20against%20Women%20(CEDAW) (last visited March 26, 2023).
[27] Civil War in South Sudan, Council on Foreign Relations (May 2022), https://www.cfr.org/global-conflict-tracker/conflict/civil-war-south-sudan (last visited March 26, 2023).
[28] Id.
[29] Amelia Young, Gender-Based Violence Surges in South Sudan, The Organization for World Peace (June 2022), https://theowp.org/reports/gender-based-violence-surges-in-south-sudan/ (last visited March 26, 2023).
[30] South Sudan: UN report highlights widespread sexual violence against women and girls in conflict, fueled by systemic impunity, OHCHR (March 2022), https://www.ohchr.org/en/press-releases/2022/03/south-sudan-un-report-highlights-widespread-sexual-violence-against-women (last visited March 26, 2023).
[31] Council on Foreign Relations, supra note 27.
[32] Id.
[33] Committee on the Elimination of Discrimination Against Women (CEDAW), Concluding observations on the initial report of South Sudan, UN Doc. CEDAW/C/SSD/CO/1 (2021).
[34] Laura Chaparro Piedrahita, Discrimination and sexual violence against women and girls in conflict-related settings, 13 CES Derecho 133, 133 (2022).
[35] Piedrahita, supra note 34, at 133.
[36] Zhang Xuelian, On the “Concluding Observations” of the United Nations Human Rights Treaty Bodies, 18 The J. of Hum. Rts. 351, 351 (2019).
[37] Id. at 352.
[38] Concluding observations on the initial report of South Sudan, supra note 33, at 21.
[39] Xuelian, supra note 36, at 351.
[40] Kamau Maichuhie, South Sudan commits to women’s rights protection, Nation (July 2022), https://nation.africa/kenya/news/gender/south-sudan-commits-to-women-s-rights-protection-3882438 (last visited March 26, 2023).
[41] Maichuhie, supra note 40.
[42] Simon Deng, South Sudan’s Parliament Told To Pass GBV Bill, Juba Echo (2021), https://jubaecho.com/south-sudans-parliament-told-to-pass-gbv-bill/ (last visited March 26, 2023).
[43] Id.
[44] Concluding observations on the initial report of South Sudan, supra note 33, at 8.
[45] Id. at 10.
[46] United Nations Human Rights Council, Technical assistance and capacity building for South Sudan, UN Doc. A/HRC/49/91 (2022).
[47] Concluding observations on the initial report of South Sudan, supra note 33, at 4.
[48] South Sudan: African Union must set precedent for African-led justice by establishing court for South Sudan, Amnesty International (Nov. 2022), https://www.amnesty.org/en/latest/news/2022/11/south-sudan-african-union-must-set-precedent-for-african-led-justice-by-establishing-court-for-south-sudan/#:~:text=The%20Hybrid%20Court%20for%20South%20Sudan%20is%20an%20AU%2Dled,and%20other%20sexual%20violence%2C%20forced (last visited March 26, 2023).