Expert Group Meeting on access to justice for Muslim Women in Conflict-affected Areas of South East Asia

Date: Thursday, 2 May 2013

Bali, 2-3 May 2013

On behalf of UN Women, I join my colleagues from AMAN in welcoming you to this workshop on Access to Justice for Muslim Women in Conflict-affected Areas in South East Asia. This workshop is a component of ongoing work within UN Women for advancing CEDAW awareness raising, implementation and compliance.

CEDAW which came into force in 1981 centres the need to end discrimination, including through advancing substantive equality; it speaks powerfully to the need to change culture of institutions in both the private and public spheres that perpetuate stereotypes of women and men, restricts them within rigid gender roles and furthers unequal power relations and therefore women’s subordination.

All countries within AP have ratified CEDAW, indeed it is amongst the most widely ratified of international human rights treaties. But it is also true that this region has the most reservations to the treaty and it in in this contradiction that we can get a sense of the tension between the principle of universality of human rights and in particular non-discrimination and the argument made, often by those with power to lose, for cultural specificity.

Notwithstanding, it is the case and one which we must celebrate, that across the region progress has been made. In particular legal regimes better address domestic violence, sexual violence and trafficking. Several countries have overarching legislation on gender equality, and other shave also implemented, in the last decade, local and national legislation to improve women’s participation in decision-making, particularly in electoral and political processes.

Civil society groups have done much to help raise awareness about CEDAW and to monitor its implementation. Most countries have NGO networks that have successfully submitted independent reports to the CEDAW Committee, providing an important source of information on the situation of women.

However, obstacles undoubtedly remain. Not all laws and policies conform to CEDAW standards for non-discrimination and substantive equality, and many fall short of their objectives because of poor enforcement, limited capacity, and weak accountability.

Although states have ratified CEDAW, political will can be lacking. Whether as policy makers or service providers, state actors often lack sufficient technical capacity to implement CEDAW. Many sectors of women, especially those most marginalized or excluded cannot access their rights, lacking the requisite knowledge, political voice and influence to demand state accountability.

Discrimination against women is therefore still deeply rooted in culture and expressed in both the public and private spheres in families and interpersonal relations. Patriarchal attitudes devalue women’s worth and work, undermining women’s rights to autonomy and bodily integrity. Many, but not all, sectors of women remain disempowered and this is exacerbated by compounded inequalities, whether as a result of geography which causes isolation, membership of a minority identity group, as women living with disabilities or because of lack of equitable access to resources and assets.

The thread of coherence running through CEDAW is access to justice. As a human rights instrument, CEDAW specifies state obligations and demands that states provide mechanisms of complaint, redress and remedies for violations of women’s rights. The justice sector is therefore the engine of CEDAW as without access to effective and gender-responsive justice, discrimination will continue to curtail women’s capacities and capabilities, restricting their legitimate demands to voice, choice and safety.

Advancing equality, development and security is a project even more complex and complicated for women of minority populations that are locked into struggle for dignity, equity and self-determination with dominant populations. In such situations women face compounded challenge. How to act in solidarity with the group, to preserve identity and valued cultural norms while engaging intra-group power dynamics to eliminate gender discrimination and transform culture.

Yet the two identities are intricately linked and explain women’s vulnerabilities in conflict settings and their exclusion in peace building.

In all situations of conflict, we know that women are differently and disproportionately affected by sexual and gender-based violence, forced displacement, the destruction of infrastructure and disruption of livelihoods and services.

We also have a clearer understanding on why sexual violence is a national and international security issue. According to Goetz and Sandler, there are a number of grounds on which this case rests:

as a remarkably efficient means of severing family/community bonds, organised rape undermines public order. Rape perpetrated in public for maximum humiliation and in front of loved ones who will never be able to look each other in the eye again rips families apart and prevents communities from recovering
sexual violence prolongs conflict - rape and pillage is often the only incentive arms-bearers have to continue fighting. The take-up of the habit by non-combatants heightens community insecurity and terror
sexual violence undermines chances for an inclusive, sustainable peace because it precludes women's participation through intimidation
if perpetrators are not prosecuted, it is harder to rebuild these systems and respect for the rule of law.

Because of these analyses and advocacy, the international justice architecture includes accountability for sexual and gender-based crimes. With the establishment of the ICC and with the international criminal jurisprudence of the ICTY and ICTR, sexual violence has been properly designated a war crime, a crime against humanity and a feature of genocide.

And further SC 1325 and the related resolutions, represent a recognition by the world's paramount international-security institution of three core realities:

that women and men experience conflict differently
that women and girls need protection from gender-specific forms of violence
that women must participate in peace-building in the interests of sustainable peace.

These normative developments however have not been smoothly and evenly followed up by implementation and much remains to be done to address insecurity and violence through strengthened rule of law and women’s access to justice in conflict and post conflict situations.

This insecurity and violence, facilitated by a lack of justice or legal frameworks, effectively prevent women’s participation in rebuilding their nations—in efforts for reconstruction, peacebuilding and development. Women and their families cannot go about their business, cannot engage in productive enterprise, in self-development, in recreation and leisure

And for these reasons, UN Women advocates the prioritizing of women’s security in rule of law initiatives and creating a protective environment for women. The rule of law is the precondition to access to justice. In September 2012, the GA considered rule of law and in this context reaffirmed that all persons, institutions and entities, public and private, including the State itself, are accountable to just, fair and equitable laws and are entitled without any discrimination to equal protection of the law.

The rule of law can only be advanced through fair, transparent, effective, non-discriminatory and accountable services that promote access to justice for all.

Speaking to gender equality, the GA recognized the importance of ensuring that women, on the basis of the equality of men and women, fully enjoy the benefits of the rule of law, and commit to using law to uphold their equal rights and ensure their full and equal participation, including in institutions of governance and the judicial system, and recommit to establishing appropriate legal and legislative frameworks to prevent and address all forms of discrimination and violence against women and to secure their empowerment and full access to justice.

Assuring equal and effective access to justice can be complicated by the existence of plural justice systems, both formal and informal. How does one assure accountability of such systems when not run by the state or when they are highly informal though with a closer and therefore more impactful relationships with communities?

All justice systems are not created equal in their response to women’s entitlements to equality and it is to this that the GA speaks when it acknowledged that informal justice mechanisms, when in accordance with international human rights law, play a positive role in dispute resolution, and that everyone, particularly women and those belonging to vulnerable groups, should enjoy full and equal access to these justice mechanisms.

Whatever the justice system, state-led, customary law, formal or informal, the rule of law must empower individuals and further their participation in reconstructing their societies. The law must guarantee equality of opportunity and outcome, must eliminate discrimination that disadvantages; the administration of justice should be secured through comprehensive training on gender justice for all actors in the justice chain, from prosecutors to judicial investigators and public defenders. And finally women and men must be aware of the state obligations for enabling gender equality; women must know their rights and must access remedies, including in transitional justice processes and reparations programmes.

In furthering this agenda, in our workshop we will be discussing how we can advance women’s access to justice. There will be specificities for Muslim women in the context of conflict, but already we have a sense of some of the core components of a comprehensive approach:

Secure justice and accountability for the crimes experienced by women in conflict. The combination of violence and weakened social protection threatens to undermine progress in women’s rights. Reparations for survivors of sexual and gender-based violence is key and can link redress for individuals with efforts to eliminate economic and social marginalization, addressing some of the root causes of violence against women in countries undergoing transition.
Rebuild national justice systems from the ground up, with women’s participation, access and gender sensitivity as central components. This will involve greater participation of women in the justice sector, innovative institutional reforms, an engagement with informal justice, and a focus on establishing women’s rights to justice during the post-conflict period through transitional justice mechanisms and reparations processes; and
Link the judicial response to a broader and transformative notion of justice and equality for all.

Roberta Clarke

Regional Director

UN Women Regional Office for Asia and Pacific

2 May 2013