Sexual harassment and impunity
Wednesday, 21 December 2011
Amena Mohsin
Women's 'normativity' and 'sexuality' is constructed through culture and religion. In Bangla there is a proverb "lojja narir aboron" (Shame modesty is the outer garmentdress of women). Such proverbs indeed need to be contextualized within a history. These are signifiers as well signify the signified. This signifier-signified nexus is a relationship of power, constructed through a political, economic and indeed social process. The process is sanctified and legitimized through customs, civil laws, personal laws, religion. This construction has created binaries and tensions at various levels, starting from the private to public spheres. It has also created hegemony of structures and systems privileging patriarchy and masculinity. This write up attempts to examine sexual harassment from a historical and sociological perspective; and then contextualize the notion of impunity. Sexual harassment may be defined as discrimination and violence based on sex. It can be a social practice, but social practices have lives and institutions. Sexual harassment is inclusive of but not limited to physical rape. It includes any overtures both verbal, physical or through use of any communicative modicum, like phone, internet to violate the dignity of a woman, man or third gender. Impunity is not being punished for this act of discrimination and violence. It is normally assumed that sexual harassment occurs only during conflict period, but there is continuous harassment during 'normal' times, and what is most worrying is the culture of impunity as well acceptance of this violence as normal. The society then labels persons harassed as 'victims'. The idea of 'victim' also merits challenge. Coinage and acceptance of these terminologies situate and naturalize the perpetrator in a hegemonic position. What I am trying to argue here is, that the structures of governance, its accompanying institutions that profess to give us a regulative structure and normativity, including the knowledge system are embedded in hegemonies and hierarchies at different layers. This keeps on producing and reproducing a system that nurtures violence in a manner accepted by and large as 'natural'. This acceptance creates cultures of 'shame' and 'honor', and notions of 'victim'. This notion encapsulates within it helplessness, lack of agency and the need for 'protection'. What needs to be emphasized is that victims are survivors and the structures need protection from perpetrators of heinous crimes against humanity. There is a need to change the discourse of victimhood, shame, honor and protection. The issues of sexual harassment and impunity are interlinked and overlaping. As argued above, those have their roots in the culture of shame and honour that societies create. The social contract between individuals as a collective and the state has not gone beyond it; rather reiterated these values. The state and citizenship is in the ultimate analysis extremely gendered ideas. I begin with the ideas of shame and honor. Shame and honor: The dichotomy between the secular and religious is beset with problems and has its limits. Religion cannot be restricted to performance of rituals; it involves a value system of viewing the world and its dailiness from a lens that is variable. The argument therefore that religion has created a culture of shame and honor is simplistic and flawed. The question I would pose here if the 'secular' state has instituted values that go beyond the notions of shame and honor prescribed by theocratic religions. I am conscious that it is a deeply contested terrain, but any dispassionate study of shame and honor, and attempts to change the notions would challenge us to a study of the religious texts as well the 'secular' state. 'Modernity' brought its own conservatisms and values. 'Equality' remained unequal and conservative to the core. Impacts of Impunity: It creates a culture that compromises public safety, quality of life and the deterrence effectiveness of the legal system declines. Crimes may become systematic and systemic. State institutions become the operators of sexual crimes. This includes not only sexual harassment by the military of civilians during periods of conflict, but also sexual harassment within the military. Women military personnel are often silenced by threats of postings to far way places, or threats of disciplinary measures. Military is an excessively hierarchical body, young women military personnel are afraid of making complains. In the civilian spaces as well, the lack of confidence within the judicial system discourages women to complain. Besides, as argued earlier, a culture that accepts violence against women is also more aggressive and disrespectful towards women. This creates a culture of silence towards violence against women and sexual harassment. The state, society perpetrate this. This we have seen in the partition of the Indian subcontinent in 1947, the liberation war of Bangladesh in 1971, the twenty years long armed insurgency in the Chittagong Hill Tracts (CHT), Bangladesh, which started in 1975 and ended in 1997 with the signing of a peace accord. Not surprisingly the accord made no mention of the rapes, allegedly, committed by the Bangladesh security officials in the CHT, though it is a nation that is demanding apology from the state of Pakistan for the atrocities and rape committed by its security personnel in 1971. Again quite understandably, the statist history of Bangladesh fails to take into cognizance the violations of Bihari women by Bengalis in 1971. Such statism is not only gendered but self defeating as well. If fighting against impunity in sexual harassment is the objective, then one cannot take selective and nationalist positions. Combating Impunity: The drive to stop sexual violence during conflict has coalesced in the claim that states must hold armed groups accountable for these acts. United Nations (UN) Security Council resolutions1325 (2000);1820 (2008); 1888 (2009); and 1960 (2010) have gradually established political and legal norms that armed actors (state and non-state) who have committed sexual violence should be excluded from amnesty provisions during peace settlement processes. Conflict must, as a matter of consistent United Nations policy, exclude international crimes and gross breaches of human rights. This helps to ensure that parties who commit acts of sexual violence cannot escape liability and that there is no impunity for such conduct. The international community has stepped up its efforts to fight against impunity. In 1993 and 1994, two ad hoc tribunals were set up to try the serious crimes committed in the former Yugoslavia and Rwanda; in 2002, the United Nations established the Special Tribunal for Sierra Leone; the Rome Statute of the International Criminal Court (ICC) came into force on July 1, 2002. However, the jurisdiction of the ad hoc tribunals is limited in terms of time and geographic reach. As regards the ICC, it is only called on to try the tip of the iceberg of the serious crimes of international humanitarian law. Thus, international justice is, henceforth, founded on the principles of complementarity and collaboration between international jurisdictions and national jurisdictions. Each one acts as a court of the international community when it tries serious crimes of international humanitarian law. The globalization of criminal justice is not, however, limited to the establishment of new international institutions. It also manifests itself in certain spectacular applications of international law, particularly through the case law of the ad hoc international tribunals. In addition, an increasing number of trials, based on universal jurisdiction, are conducted in several states, mainly spurred by the victims and non-governmental organizations. Judges are becoming aware of the role they can and must play in the fight against impunity. Through the work of the International Law Commission, the International Law Association and other learned societies (see the Princeton Principles on Universal Jurisdiction), legal doctrine plays a part in the efforts aimed at codifying international criminal law as regards the repression of serious crimes of international humanitarian law. ................................................. Amena Mohsin is a professor, Department of International Relations, University of Dhaka.
Women's 'normativity' and 'sexuality' is constructed through culture and religion. In Bangla there is a proverb "lojja narir aboron" (Shame modesty is the outer garmentdress of women). Such proverbs indeed need to be contextualized within a history. These are signifiers as well signify the signified. This signifier-signified nexus is a relationship of power, constructed through a political, economic and indeed social process. The process is sanctified and legitimized through customs, civil laws, personal laws, religion. This construction has created binaries and tensions at various levels, starting from the private to public spheres. It has also created hegemony of structures and systems privileging patriarchy and masculinity. This write up attempts to examine sexual harassment from a historical and sociological perspective; and then contextualize the notion of impunity. Sexual harassment may be defined as discrimination and violence based on sex. It can be a social practice, but social practices have lives and institutions. Sexual harassment is inclusive of but not limited to physical rape. It includes any overtures both verbal, physical or through use of any communicative modicum, like phone, internet to violate the dignity of a woman, man or third gender. Impunity is not being punished for this act of discrimination and violence. It is normally assumed that sexual harassment occurs only during conflict period, but there is continuous harassment during 'normal' times, and what is most worrying is the culture of impunity as well acceptance of this violence as normal. The society then labels persons harassed as 'victims'. The idea of 'victim' also merits challenge. Coinage and acceptance of these terminologies situate and naturalize the perpetrator in a hegemonic position. What I am trying to argue here is, that the structures of governance, its accompanying institutions that profess to give us a regulative structure and normativity, including the knowledge system are embedded in hegemonies and hierarchies at different layers. This keeps on producing and reproducing a system that nurtures violence in a manner accepted by and large as 'natural'. This acceptance creates cultures of 'shame' and 'honor', and notions of 'victim'. This notion encapsulates within it helplessness, lack of agency and the need for 'protection'. What needs to be emphasized is that victims are survivors and the structures need protection from perpetrators of heinous crimes against humanity. There is a need to change the discourse of victimhood, shame, honor and protection. The issues of sexual harassment and impunity are interlinked and overlaping. As argued above, those have their roots in the culture of shame and honour that societies create. The social contract between individuals as a collective and the state has not gone beyond it; rather reiterated these values. The state and citizenship is in the ultimate analysis extremely gendered ideas. I begin with the ideas of shame and honor. Shame and honor: The dichotomy between the secular and religious is beset with problems and has its limits. Religion cannot be restricted to performance of rituals; it involves a value system of viewing the world and its dailiness from a lens that is variable. The argument therefore that religion has created a culture of shame and honor is simplistic and flawed. The question I would pose here if the 'secular' state has instituted values that go beyond the notions of shame and honor prescribed by theocratic religions. I am conscious that it is a deeply contested terrain, but any dispassionate study of shame and honor, and attempts to change the notions would challenge us to a study of the religious texts as well the 'secular' state. 'Modernity' brought its own conservatisms and values. 'Equality' remained unequal and conservative to the core. Impacts of Impunity: It creates a culture that compromises public safety, quality of life and the deterrence effectiveness of the legal system declines. Crimes may become systematic and systemic. State institutions become the operators of sexual crimes. This includes not only sexual harassment by the military of civilians during periods of conflict, but also sexual harassment within the military. Women military personnel are often silenced by threats of postings to far way places, or threats of disciplinary measures. Military is an excessively hierarchical body, young women military personnel are afraid of making complains. In the civilian spaces as well, the lack of confidence within the judicial system discourages women to complain. Besides, as argued earlier, a culture that accepts violence against women is also more aggressive and disrespectful towards women. This creates a culture of silence towards violence against women and sexual harassment. The state, society perpetrate this. This we have seen in the partition of the Indian subcontinent in 1947, the liberation war of Bangladesh in 1971, the twenty years long armed insurgency in the Chittagong Hill Tracts (CHT), Bangladesh, which started in 1975 and ended in 1997 with the signing of a peace accord. Not surprisingly the accord made no mention of the rapes, allegedly, committed by the Bangladesh security officials in the CHT, though it is a nation that is demanding apology from the state of Pakistan for the atrocities and rape committed by its security personnel in 1971. Again quite understandably, the statist history of Bangladesh fails to take into cognizance the violations of Bihari women by Bengalis in 1971. Such statism is not only gendered but self defeating as well. If fighting against impunity in sexual harassment is the objective, then one cannot take selective and nationalist positions. Combating Impunity: The drive to stop sexual violence during conflict has coalesced in the claim that states must hold armed groups accountable for these acts. United Nations (UN) Security Council resolutions1325 (2000);1820 (2008); 1888 (2009); and 1960 (2010) have gradually established political and legal norms that armed actors (state and non-state) who have committed sexual violence should be excluded from amnesty provisions during peace settlement processes. Conflict must, as a matter of consistent United Nations policy, exclude international crimes and gross breaches of human rights. This helps to ensure that parties who commit acts of sexual violence cannot escape liability and that there is no impunity for such conduct. The international community has stepped up its efforts to fight against impunity. In 1993 and 1994, two ad hoc tribunals were set up to try the serious crimes committed in the former Yugoslavia and Rwanda; in 2002, the United Nations established the Special Tribunal for Sierra Leone; the Rome Statute of the International Criminal Court (ICC) came into force on July 1, 2002. However, the jurisdiction of the ad hoc tribunals is limited in terms of time and geographic reach. As regards the ICC, it is only called on to try the tip of the iceberg of the serious crimes of international humanitarian law. Thus, international justice is, henceforth, founded on the principles of complementarity and collaboration between international jurisdictions and national jurisdictions. Each one acts as a court of the international community when it tries serious crimes of international humanitarian law. The globalization of criminal justice is not, however, limited to the establishment of new international institutions. It also manifests itself in certain spectacular applications of international law, particularly through the case law of the ad hoc international tribunals. In addition, an increasing number of trials, based on universal jurisdiction, are conducted in several states, mainly spurred by the victims and non-governmental organizations. Judges are becoming aware of the role they can and must play in the fight against impunity. Through the work of the International Law Commission, the International Law Association and other learned societies (see the Princeton Principles on Universal Jurisdiction), legal doctrine plays a part in the efforts aimed at codifying international criminal law as regards the repression of serious crimes of international humanitarian law. ................................................. Amena Mohsin is a professor, Department of International Relations, University of Dhaka.