LM: Welcome to the FiLiA podcasts. We are the daughters of those women who came before us. It is our absolute honour to have met so many incredible women fighting for the liberation of us. All our role at FiLiA is to amplify the voices of those women via the FiLiA conference and these podcasts, please take from them what you can in sisterhood and in solidarity, the FiLiA team.

Julian: Hello, this evening's podcast is with Dr. Daniella Nadj, a lecturer in public law, uh, at Queen Mary University in London. She specializes in public law, the United Nations system for the protection of human rights and her research interests are in the fields of international criminal law, international human rights, feminist legal theory and armed conflict. 

So we are incredibly privileged to have her with us today talking about the background to her book and also the possibility of an international treaty on the prevention of violence against women, something which today is globally, sadly lacking. So Daniela first, thank you so much for being with us. Tell us a little bit about what you've been doing. 

Daniela: Yeah, so, uh, my research primarily focuses on gender-based violence against women. I have written a book about wartime sexual violence against women and how these crimes have been prosecuted by International Criminal Tribunals in particular, the Rwandan and the Yugoslav tribunals, which was set up by the United Nations Security Council.

To deal with the conflict in the former Yugoslavia and Rwanda, which took place in the early to mid 1990s. So from then, from writing this book, and focusing on, on wartime sexual violence, I decided to focus more broadly on gender based violence against women in society. Because I think there are some overlapping patterns, if you will, that we see between peace, time and conflict.

So often what we see for example is that in societies where there's a high rate of, uh, or high rate of domestic violence against women, it's more likely to get magnified in times of armed conflict. So I believe alongside other scholars that there is a continuum of violence that we often find. So from looking at gender-based violence and past gender-based violence in conflict situations, I decided to focus again more on the domestic, and to make that linkage between the domestic and the international. And more recently, I'm trying to make the argument again with other scholars and, um, activists, that it is time for a convention on violence against women in international human rights law in the UN legal system.

Why? Because I think gender based violence is a very pervasive phenomenon. It's a form of systemic discrimination against women. And I believe that the United Nations has to adopt it as a standalone convention, see it as a human rights violation. And really try to prevent it, stamp it out and to adopt long-term solutions as to how women and also girls can effectively move forward and, and, and be protected and, and also have their human dignity recognized really.

 Julian: You used the term that, um, gender-based violence. It's one we see come up at the UN in various documents again and again. Could you just give us a little bit, what that is. And if you can, why gender-based violence is used, uh, as a term. 

Daniela: So gender-based violence, I think encompasses now both, I think biological, um, violence or biological harm suffered by women.

So the physical element, if you will, the say the sexual penetration, um, or, or sexual, uh, sexualized touching, for example, but it also encompasses a psychological aspect. And I think it also recognizes like long-term psychological impacts that women suffer as a result of rape or, or other forms of sexual violence, or, you know, a harmful touching, for example, et cetera.

But it, it also, I think does away with this idea of gender as merely being rooted in the biological and really conceives it as a social construct. So gender is often assigned to us by society, right? So it's, uh, uh, not only a biological phenomenon, but it's really a social construct as well. And that's why I think gender-based violence has to be conceptualized.

Julian: So recognising the physical and the social harm within the context of gender as a social 

Daniela: construct. Yes. Yes. 

Julian: And in that context, you've talked for example, about rape as a weapon of war and the context of that with Yugoslavia and Rwanda, is that something which the international community has always recognized as a form of global violence against.

Daniela: No, it hasn't. So it wasn't until the early 1990s with the establishment of the tribunal for the former Yugoslavia, that rape was actually for the first time recognized as a war crime. Um, so up until this point up until 1991 with the establishment of the tribunal and the first cases that were prosecuted.

So the first case ever prosecuted was Tadić. And then there were other very significant cases like Furundžija. These were cases that are today heralded, heralded as major landmarks in sexual violence. Jurisprudence. These were cases that for the first time successfully prosecuted individuals for rape as a form, as a war crime, but also rape as a crime against humanity, rape as a form of torture and, other practices such as sexual slavery as a crime against humanity and a war crime. And that was very significant because it hadn't been done. The point prior to Yugoslavia and Rwanda and Rwanda by the way, was very significant because it was the first tribunal that successfully prosecuted an individual, Mr. Akayesu, who for rape as a form of genocide, I should say up until these international criminal tribunals ad hoc tribunals, we never had a recognition of rape as a war crime. They had never been a successful prosecution. 

Julian: So what happened to the comfort women in the second world war, for example, wouldn't be, prior to 1990s, have been seen as a war crime in its own, right? 

Daniela: Yes. It was seen as a war crime, but their suffering was not acknowledged by international law. So, it was acknowledged domestically. Finally, after many, many years of lobbying and advocacy, and they were finally given reparations and, and received some form of restorative justice.

But, um, it was not internationally recognized as a, as a war crime. No, we didn't. And Nuremberg never prosecuted any individuals for rape or sexual violence and neither that the Tokyo tribunals. So we really didn't have any recognition of, of course we knew that rape could be a war crime, right? There was always that possibility, but until the actual establishment of these International Criminal Tribunals and first successful prosecutions, there was no explicit acknowledgement in international law that rape is actually a war crime. 

Julian: And you've talked about this interplay between international gender-based violence and domestic gender-based violence. Do you see a connection between the two or are they disconnected? 

Daniela: Yeah, no, I think they are connected. So I think, um, in societies where there are high rates of domestic violence, it's probably more likely that such societies, uh, will, uh, maybe descend into to war. And when they do descend into war, um, You know, very likely that rates against or rates of violence against women will actually increase. So often war magnifies, domestic violence, it magnifies sexual violence that is already there. So in Rwanda, just to give you an example of what happened is that prior to the conflict or prior to the genocide in 1994, for many years, there was a sustained media campaign, which was very publicly carried out, uh, where Tutsi women in particular were fetishised and kind of portrayed in the Rwanden domestic press, as prostitutes as easily available as kind of being available easily to Western men, to tourists, but really to anybody. So, you know, often portrayed in very skimpy clothing. And so it kind of led to a situation where you already had maybe, uh, internal turmoil and, and a contentious political situation. And then with the kind of racialization, if you will, or fetishization of, of certain women, um, it, it, that violence against them then also increases.

Um, and once the war broke out and the genocide happened, we saw a huge amount of, of gender-based violence being committed against Tutsi women. So there was, there was a link in the former Yugoslavia. Yes. There was a link, I think, between domestic violence rates, which were quite high in places like Bosnia and the conflict. Um, and I think in other contexts as well, um, not necessarily in every context, but I think there's often a link between domestic violence and what we then see in armed conflict. It just gets played out more publicly in armed conflict because domestic violence still, and that's why it's so difficult to address it in international law.

But also domestically very often happens behind closed. 

Julian: You've obviously spoken there about the Rwandan conflict and so on, but that is, I think that this is something which was resolved and Yugoslavia and Rwanda and no longer happen because obviously now, we've also got, I'm aware of reports of sexual violence and the conflict in Eastern Ukraine and of Yazidi women and girls also.

Uh, so this is very much something that is still happening. So we know that there are two legal instruments. There's the Istanbul convention and CEDAW. So are those not effective or are they not enough or are they not being properly implemented and what would be your solution?

Daniela: Well, again, so CEDAW is, is a very good treaty and it's one of the most heavily, heavily ratified treaties and international law.

So almost all states around the world have ratified CEDAW, which is the women's convention. Uh, but the main problem as I see it is that CEDAW primarily addresses discrimination and advocates for gender equality. So, so that's, if you will, the, the two key objectives of CEDAW are to achieve gender equality and to prohibit gender discrimination in all forms.

However, it doesn't specifically address violence against women as a form of gender discrimination. And I think this is where the legal gap still is. So we have, let's say a gap between the normative, uh, the rhetoric, the language that we use, the, the, where we would want to be, uh, and the legal realities.

Um, and so, so because CEDAW doesn't address gender based violence specifically until its comment, number 35, which came many, many years later after the adoption of the treaty, we simply have a failure to acknowledge violence against women as a human rights violation and as a form of discrimination against women as well.

And I think this is the missing link. So the way I see it, a convention could really integrate that language into legally binding language and could for the first time actually say that well violence against women is a form of discrimination against women because they are women and states have an obligation both to prevent and protect from gender-based violence. So I think this, this is where the gap still is with CEDAW. And this is why we need a specific conventional violence against women. As far as the Istanbul Convention is concerned, I think that's a very good framework or model treaty that we have. However, the Istanbul Convention primarily deals with domestic violence, not other types of violence, say not, um, for example, uh, revenge porn or different types of online violence or, or, you know, more broader forms of violence or trafficking, for example, that women often sustain. Um, and of course it's only a Council of Europe treaty rights, so it only applies to member states of the Council of Europe, which currently, I think there are 47 member states of the Council of Europe. So it's not as, um, global as a, as an international convention on violence against women would be. So, cause it only applies to Council of Europe member states. And I think this is why we need a UN-led convention, which could potentially then be ratified by all member states in the world.

Julian: And I think that you have a solution, uh, in draft form. And I have seen it. I have signed it. It's at everywoman.org, so anyone who's listening to this, please do go and have look at everywoman.org where you will find the people's call for the every woman treaty. Tell us a bit about that treaty and how you envisage it working, if it is successful.

Daniela: Well, I think again, it could be very successful because it would have a preamble probably so stating its aims and objectives, what it would seek to achieve. It could also, again, formulate provide us with a definition of what gender based violence actually is that it's a violation against a woman's dignity and autonomy, but also a form of discrimination against women.

It could also, I think one of the advantages would be that it would treat. Civil and political rights, the same way it treats socioeconomic rights. So it could recognize that, you know, if women are subjected to violence, they are also less likely to enjoy the right to health, the right to housing, the right to education so that it could have that intersectional dimension to it.

Also acknowledging that all types of women are subjected or, or could be victims of violence against women. So that it, it has that really, that interest sectional dimension, and that race class, ethnicity, religion play a huge factor as to why certain women are targeted. It would, it could also enumerate different types of violence against women.

So not just domestic violence, but also other forms of violence against women, you know, such as honour killings or online forms of violence, et cetera, trafficking. So many different forms of violence could be encompassed in that convention. And I think where I see, and also it could, it could address. Women were often very marginalized already, um, domestically say indigenous women, refugee women, asylum seekers.

So women who are, you know, who very often are marginalized, uh, by, uh, by law in general. So, so really addressing their specific needs and addressing their specific situations. And they're very often, these are the women, say migrant women or domestic workers, right, who are subjected to, to sexual violence, um, and would very little recourse because their status or stateless women, right, is often not even acknowledged and international law. So I think a convention would, could have that advantage of incorporating all these women and enumerating them and, and really, uh, highlighting them, uh, giving them legal status if you will. And then I think you could also adopt one or two optional protocols to that convention.

The advantage of that would be that, uh, if you had so optional protocol, one could require a periodic review mechanism whereby states would have to report to the United Nations committee that would be responsible for that multiple monitoring the implementation of the convention on a five-year basis as to the progress that they have made in terms of adopting their commitments in the, in the convention.

So they would, they would be required by law to produce very comprehensive reports as to what they have done to, to make sure that violence is eliminated, but also to protect women and what they have done in terms of, you know, socioeconomic investments, right? Providing shelters, uh, providing healthcare for these women, uh, you know, psychological support, et cetera, et cetera.

So I think it that's a good way also of naming and shaming states if they don’t comply with their obligations under the treaty. And secondly, you could have a second optional protocol, some treaties like say the international covenant on civil and political rights have it, uh, or the children's convention there's a second optional protocol, Um, whereby you could, it would allow or enable individual women who don't have access domestically to the courts, or simply who come from states where domestic law is not developed enough, they could then, or whether they're not getting the redress that they seek, right. They would be able to access that committee, um, under a second optional protocol and then individually try and claim against the state. 

Julian: So giving them directly enforceable rights? 

Daniela: Directly enforceable rights, exactly. The idea being that states would then have to provide some form of reparation to these victims.

Um, and, um, I think that could be very effective. So in addition to naming and share. You could also force states to provide reparations to these, uh, women, uh, would act 

Julian: as a huge 

Daniela: deterrent, which would activate. Yes. And in addition to that, I think such a convention or the committee that would oversee the convention could operate very closely with the UN special rapporteur on violence against women to, to help and monitor the situation on the ground in different states, uh, or with the UN special advisor, a special advisor to the UN secretary general.

So if you will, together or in tandem, they could adopt a, I think a real investigative approach and, and really work closely on implementing this convention and making sure that it actually is put into practice. 

Julian: And what obstacles do you see to this? 

Daniela: I think political goodwill. I think the main problem is that certain states are still reluctant to acknowledge that they have a significant problem with violence against women.

Maybe there's also a reluctance to acknowledge that violence against women is a human rights violation as well. Um, uh, and I think there is a lack of wanting to invest. So because if states sign up to such a convention, it also means that they have to commit themselves to providing, say shelters or adequate healthcare or educational opportunities for girls and, and, you know, safe spaces for women.

And, and, and I think that costs money, right? So I think there is a reluctance probably on the political goodwill, I think is still lacking. And I think that is the biggest obstacle and maybe also a lack of recognition that gender-based violence is indeed a human rights violation that is very specific to women.

That is a very gendered phenomenon and that it impacts so many women across the world, including women in their own state.

Julian: I think that political goodwill can perhaps be achieved through pressure of the voters of the electorate. Yes. So, uh, again, I will give a little plug for the everywoman.org site where we can sign up to encourage those  in power to actually get on and, uh, work on this. Um, thank you so much, Daniela, that has been, uh, educative and inspirational. I've really enjoyed hearing what you've had to say on that. It's been really interesting. 

Daniela: Thank you for having me. 

Julian: I'm looking forward to reading your book.