Gender and Violence in Haiti: Women's Path from Victims to Agents

4. Legal Frameworks

78 4 Legal Frameworks This chapter examines the international legal norms addressing practices of discrimination and sexual violence against women under international human rights and humanitarian law. It discusses the shortcomings of these laws in responding to such violations and effectively protecting women and girls. The chapter also examines UN resolutions on women, peace, and security that develop, at a programmatic level, women’s participation in postconflict processes and reconciliation. Finally, the Haitian legal framework on gender-based violence and women’s involvment in armed violence is analyzed in its progression from the original Haitian penal code to the current laws in compliance with international benchmarks. Gender-Based Violence under International Law Women’s rights under international law fall primarily into two different categories of provisions: nondiscriminatory norms, providing equal treatment for women and men, and protective measures from gender-based violence (Charlesworth and Chinkin 2000, 213). Because Haiti has ratified the main international treaties dealing with women and children, the Haitian criminal justice system should refer to and sustain these human rights benchmarks in responding to practices of discrimination and sexual violence against women and girls in the country. LEGAL FRAMEWORKS 79 The Charter of the United Nations, signed on June 26, 1945, was the first international agreement recognizing the equal rights of men and women and including as a purpose of the United Nations itself the promotion and encouragement of respect for human rights and for fundamental freedoms for all without any distinction based on sex.1 Along the same lines, in 1948 the General Assembly of the United Nations adopted the Universal Declaration of Human Rights, proclaiming that all human beings are born free and equal in dignity and rights without any distinction based on gender (arts. 1 and 2). The intrinsic value of any individual life as well as the right to equal treatment and nondiscrimination on the basis of sex have been specific objects of protection under international law not only through generally applicable provisions but also through women-specific instruments, which have been ratified by, among others, the Haitian government. After receiving general acknowledgment of these protections, women ’s organizations advocated for the establishment of specific mechanisms aimed at advancing women’s status in the international arena and raising awareness of the necessity for their protection. During the fortunate decade of 1975–1985, women’s activism gained momentum by promoting studies on women’s issues and, most important, by lobbying for the adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the first international instrument espousing gender equality as its sole focus and acknowledging women as victims of unique human-rights violations. Adopted in 1979 by the General Assembly, the CEDAW defined the term discrimination against women to encompass any distinction, exclusion, or restriction made on the basis of sex that has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women of human rights and fundamental freedoms (art. 1). Moreover, States Parties2 to the CEDAW, among which Haiti has been included since July 20, 1981, committed themselves to condemning discrimination against women in all its forms and agreed to adopt all the appropriate measures, including legislation, to modify or abolish existing laws, customs, and social and cultural patterns of conduct held by men and women, with a view to achieving the elimination of prejudices, whether customary or not, that 80 GENDER AND VIOLENCE IN HAITI are based on the idea of the inferiority or the superiority of either of the sexes or on stereotypical roles for men and women (arts. 2 and 5). In order to achieve the CEDAW’s stated goals, Article 17 established a Committee on the Elimination of Discrimination against Women (the CEDAW Committee), a supervisory body responsible for monitoring members ’ efforts to meet their obligations through a review of periodic reports submitted for consideration by States Parties (arts. 17–21). Comprising independent experts elected by States Parties for their high moral standing and specific competence in the field, the CEDAW Committee also has the task of turning the process of revising reports into a constructive dialogue on crucial women’s issues as well as drafting compelling general recommendations and providing valuable insights for women’s international conferences (Byrnes 1995). At the Final Conference, held in Nairobi, Kenya, at the end of the UN Decade for Women in 1985, activists for women’s rights reached a breakthrough...