Gendered Security and the Right to Life: Analysis of UN Human Rights Committee’s General Comment

Editor’s note: This article is the third in a series that Just Security is publishing on a interpretive statement issued by the UN Human Rights Committee–General Comment 36–which concerns the arbitrary deprivation of life under the International Covenant on Civil and Political Rights (ICCPR). Be sure to read other contributions in the series, including (i) a Q&A with our co-editor-in-chief Ryan Goodman and two members of the UN Committee, Christof Heyns and the Committee’s rapporteur for the General Comment, Yuval Shany, and (ii) an analysis by Shaheed Fatima, QC.

 

General Comment 36 is wide-ranging, important and well-timed. While global standards on the meaning and implementation of the right to life have crystalized over time, the Committee’s articulation of what it understands to be the nature and form of state obligation is an overdue and necessary update. It is necessary because the right to life, to state the very painfully obvious, is the most essential of rights. Without life, the panoply of other human rights is inherently compromised. The right to life is also, to state the obvious, at the heart of security debates and security challenges. Protecting human life is the heartbeat of security imperatives, and drives government, security sector, and international institutional choices every day. The work of integrating human rights with security often engages hard and painful choices about protecting or taking life. Security as a practice has long been presumed gender neutral, but a broad range of policy developments including the Women, Peace and Security Agenda and the 2005 Human Security Summit and Report have shifted policy and enforcement discussions to engage gender security, and to conceive of security policy and practice in ways that explicitly include the experience of women and girls.

Yet in this context, it seems almost superfluous to say that the meaningful realization of the right to life is precarious in many parts of the globe. It remains distinctly peripheral for many women and girls. Despite a better global vocabulary on rights, the realization of the right to life is in short supply in many places. Persons living in conflict zones in Syria, Yemen, Libya Ukraine and Central African Republic know this reality intimately. Famine or contracted food supply in South Sudan, El Salvador, and Timor Leste occasioned by conflict, corruption, and poor governance mean that children and adults face needless loss of life because they lack food and water. Human rights defenders understand that their lives are a commodity under-valued by states, as they are arbitrarily targeted and killed, with over 300 dead in 2017. As the murder of journalist Jamal Khashoggi exposed this year, medieval-style executions of state critics have not ceased, and state investigation of arbitrary deaths is often as problematic as the death itself.

My reflections on the General Comment are framed by acknowledging the broader terrain of gendered security engaged by the Committee, and I pay particular attention to gender advancements for women’s rights broadly defined as well as those elements that explicitly engage traditionally defined security threats to women’s bodies and well-being. It is important to positively affirm the strong signal this General Comment sends on the need to interpret and revisit fundamental human rights through the prism of gender equality. In line with the thinking advanced by feminist security scholars, the personal and the territorial are intimately linked, and advancing security for women starts with defined and explicit legal protection for their bodies, and their reproductive choices.

Thus, the Committee’s forceful opening to articulating the right to life for women and girls come in operative paragraph 8. This affirms the right of life of women and girls and directly addresses the reproductive rights of women as inherently connected with the right to life. The paragraph is long but highly significant.

  1. Although States parties may adopt measures designed to regulate voluntary terminations of pregnancy, such measures must not result in violation of the right to life of a pregnant woman or girl, or her other rights under the Covenant. Thus, restrictions on the ability of women or girls to seek abortion must not, inter alia, jeopardize their lives, subject them to physical or mental pain or suffering which violates article 7, discriminate against them or arbitrarily interfere with their privacy. States parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or is not viable. In addition, States parties may not regulate pregnancy or abortion in all other cases in a manner that runs contrary to their duty to ensure that women and girls do not have to undertake unsafe abortions, and they should revise their abortion laws accordingly. … States parties should not introduce new barriers and should remove existing barriers that deny effective access by women and girls to safe and legal abortion, including barriers caused as a result of the exercise of conscientious objection by individual medical providers. States parties should also effectively protect the lives of women and girls against the mental and physical health risks associated with unsafe abortions.

Given the long-standing disavowal by the Committee on addressing the fulcrum of women’s rights head-on, the strength and detail of the language on abortion access for women as an intrinsic dimension of the right to life is significant. The language of women’s rights is also integrated into the totality of the General Comment, undoing hierarchies of which right to life protections (for example civilian targeting, extra-territorial use of force, weapons regulation, disappearances, policing practices) might be more important than others and mainstreaming the protection and independence of women’s bodies within the unexceptional regular business of a state’s obligations. While the word “security” is not consistently used by the Committee, its work in this General Comment in essence embraces the approach of the General Assembly’s 2012 Resolution on Human Security, namely:

Human Security is an approach to assist Member States, in identifying and addressing widespread and cross-cutting challenges to the survival, livelihood and dignity of their people.

The Committee’s work in assessing new threats and new responsibilities for States may inter alia unexpectedly enable security and accountability for women’s lives. For example, in paragraph 18 the Committee explicitly articulates an obligation for State parties “to adopt laws or other measures in order to protect life from all reasonably foreseeably threats, including threats from private persons and entities.” While many observers will view this as addressing state obligations to private armed actors, militias, military contractors, and groups sub-contracted formally or informally by the state exercising force, its reach is potentially far wider. This obligation opens up horizontal application of human rights norms, given the long-standing claims and challenges involving States who turned a blind eye to or enabled individuals to commit domestic or “private” violations. Through a gendered lens this points to unmistakable state responsibility to prevent reasonably foreseeable violence in the private sphere. Systemic violence against women and girls should be understood to fall squarely within this framework.

In operative paragraph 15, the Committee expressly addresses the responsibility of states to regulate and account for use of force by private individuals and entities that are authorized or empowered by the state to use force. While the gender dimensions of right to life violations are not explicitly mentioned here, the requirements of effective remedy appear to hold states to monitoring and control, which involves a broad view of the scope of state responsibility for such violence. Paragraph 20 of the General Comments explicitly addresses “infanticide” (which is statistically associated with the killing of females) and “honour” killings, requiring effective criminal sanctions with appropriate and grave sanction commensurate with the seriousness of the crimes. Paragraph 23, articulates an obligation of special protection to persons “whose lives have been placed at particular risk because of specific threats or pre-existing patterns of violence.” Given entrenched patterns of gender-based violence across the globe, particularly in conflict settings, the generic invocation is then linked to specific categories of victims including victims of domestic violence, women designated as “witches,” victims of gender-based violence and human trafficking, and lesbian, gay, bisexual, transgender, intersex persons. Here from the perspective of fragile, insecure and conflicted societies, the Committee is deepening the accountability matrix by not only holding states accountable for the outcome of targeted violence against women, but giving fair warning that a pre-existing obligation of heightened protection is engaged.

The General Comment goes further in terms of naming the responsibility of states in text that echoes the language and sentiment contained in the Article 5 of the CEDAW Convention whereby states are encouraged in paragraph 26 to take “appropriate measures” to address the “general conditions in society that make persons vulnerable to right to life violations.” This text is followed by explicit reference to stigmatization and encourages states to develop detailed plans and campaigns to raise awareness of gender-based violence and harmful practices. The reference to intersectional discrimination is also an advance, leaning into long-standing feminist analysis of gender-based harm and its multiple and varied layers for women. This mainstreaming effort does important work in advancing meaningful and all-encompassing security for women and girls. It establishes additional precursor requirements for states, the necessity to anticipate vulnerability that produces and sustains insecurity and exposure to extreme (or regular) violence.

This granular articulation is a positive development. Nonetheless, by comparison to the 2017 Report on the gender dimensions of arbitrary deprivation of life by the United Nations Special Rapporteur (SUMEX) Agnes Callamard, there are aspects in which the General Comment appears hesitant, holding off on a full embrace of gender mainstreaming on the right to life. Callamard persuasively identifies the relationship between arbitrariness and the principle of non-discrimination, encompassing both its procedural and substantive aspects. Her report takes a systematic approach to articulating gender-sensitive respect for life–breathing gender analysis into every pore of life protection and security enhancements for women and girls. This analysis includes but is not limited to the economic, social and sexual markers pertaining to women facing the death penalty (para 41-43), vulnerability to heightened risk of violence (including death) for transgender individuals in custody (para 46), the unique dimensions of gender-based killings in armed conflict (para 47-48), femicide which is the most prevalent form of violence against women across the globe (para 51-56), and the particular experiences of secondary victimization for women who suffer the loss of their partners or other family members (para 49). In this regard, the Special Rapporteur SUMEX takes a deeper dive on gendering the right to life, realizing an expansive ambition of a gender infused security, that eschews both the traditional relegation of women’s vulnerability to reproductive rights, domestic violence and femicide as well avoiding the hyperbole of casting women’s insecurity as correlated to extreme conflict or extremism (ISIS and non-state actor violence, systematic sexual violence in conflict, and women as Jihadist brides). The balance of course involves both the extremes and the mundane. Both frame a global picture of gendered insecurity for women, and constitute their specific and situated positionality to being arbitrarily killed. Advancing protection for women’s lives necessarily involves a broader embrace of the threats they face and the lives they lead. The Human Rights Committee’s General Comment makes a brave start in this regard, and demands that states do more, which is a welcome point of departure. There is clearly more work to be done, not least reframing how we understand the threats to women’s lives, and articulating a better global consensus on what constitutes security for men and women alike.

 

Image: Pairs of shows of murdered women are seen during a demonstration demanding justice for the 5.929 women killed in the past 15 years in Honduras, in the framework of the International Day for the Elimination of Violence Against Women which was commemorated on the eve worldwide, in Tegucigalpa, on November 26, 2018 (Orlando Sierra/AFP/Getty Images)

  

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland. You can follow her on Twitter (@NiAolainF).