The relationship between gender and protection
Edwards asserts that that there is an absence of a ‘universally agreed binding treaty norm explicitly prohibiting violence against women.’ ( Edwards, p.3). Notwithstanding the existence of the 1993 Declaration on the Elimination of Violence Against Women (EVAW) by the UN General Assembly, the argument is that human rights norms underlying international law reflect the understanding of harms perpetrated against men rather than the experiences of women. Women are therefore perceived as a ‘deviation from that standard and as an exception to that rule, rather than as equal beneficiaries of the human rights protection system.’ (Edwards, p.5).
This is remarkable since women continue to be the victims of violent atrocities and human rights abuses in countries such as Myanmar, Sudan , India and Nigeria. Discrimination, for instance, against Palestinian women who were victims of sexual violence and rape in the West bank was evident in a law that allowed alleged rapists to avoid imprisonment if they married their victims. This law in a 1960 penal code enforced in the West Bank has since been repealed by the Palestinian president, Mahmoud Abbas. ( Human Rights Watch, May 10 , 2018).
A study in 2015 quoted by Human Rights Watch estimated that about half of all killings of women in Brazil are the result of domestic violence.(https://www.mapadaviolencia.org.br/pdf2015/MapaViolencia_2015_mulheres.pdf) ( Human Rights Watch August 16 , 2018) .
It is arguable that androcentric or patriarchal laws which determine the limitations to the autonomy and bodily integrity of women, and their rights, for instance, to marriage and property ownership exemplify the ‘logic of masculinist protection’ and ‘ the subordinate relation of those in the protected position.’ (Young, p.4). From this perspective, laws that are depicted to be protective of women in promoting what appears to be in their ‘best interest’ may in reality further inequalities between the genders in way that serves the political, legal and economic interests of the ‘protectors.’
As Marion Young argues, ‘in return for male protection, the woman concedes critical distance from decision-making autonomy ‘ (Young , p.4). It is therefore necessary for there to be a reinterpretation of domestic and international laws on human rights to ‘include women’s experiences generally and of violence in particular.’ ( Edwards, p.3).
For instance, instead of presenting the statelessness of women as a ‘gender neutral phenomenon’ (Lee, p.115) that strips away the experiences of women, for example, of being exploited by human traffickers and denied protection to such threats by state officials, gender discrimination against women could be better addressed by migration law to account for such devastating harms .
Catherine Mackinnon’s criticisms of the sameness/difference model of equality is useful in arguing for migration law to identify and provide greater protection for gender related persecution involving, for instance, sexual violence such as rape and sexual slavery,
rather than to ‘equate the experiences of women to harm normally perpetrated against men’ ( Edwards, p.5) .
The singling out of Rohingya women and children, some under the age of 10, for rape by the Tatmadaw Burmese soldiers highlights such gender related violence during conflicts (The Guardian 25 Oct. 2017) . Additionally, The medical and psychological treatment provided by Médecins Sans Frontières for such victims of sexual atrocities would neccesarily differ from the kind of treatment provided to other victims in Cox’s Bazar.