Violence against Women as a Translocal Category in the Jurisprudence of the Inter-American Court of Human Rights/Violencia contra a Mulher como uma Categoria Translocal na Jurisprudencia da Corte Interamericana de Direitos Humanos.
| Autor | Assis, Mariana Prandini |
| Cargo | Texto en ingles - Ensayo |
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Introduction
In January 1995, the Inter-American Commission of Human Rights brought to the attention of the Inter-American Court of Human Rights (IACtHR) a case against Peru. The case dealt with several human rights violations inflicted upon Maria Elena Loayza Tamayo, a professor at the University San Martin de Porres, whom the National Division against Terrorism (DICONTE) had incarcerated under the accusation of being part of the Communist Party of Peru--Shining Path. (1) Throughout the procedure before both the Commission and the Court, Maria Elena remained imprisoned, subjected to various forms of cruel and unhuman treatment reported to the Inter-American System by activists and lawyers, her sister, Carolina Loayza Tamayo, amongst them. First the Commission, in its recommendation (1994), and later the Court, through a provisional measure (1996) followed by a judgment on merits (1997), attempted to exert some influence upon the authoritarian regime led by Alberto Fujimori, aiming at guaranteeing Maria Elena's fundamental rights. A case such as this highlights that, along with the integration of markets and increasing migration flows, the rearrangement of borders and power structures in the contemporary world-system have led to the emergence of a "transnational legal sphere". (2) That this is not an isolated case, but instead part of increasing trend worldwide, raises relevant theoretical and empirical questions regarding critical approaches to human rights and the use of law to promote justice in a global landscape.
One of these questions, which I pursue in this paper, concerns the long and complex process of development and circulation of legal categories. Such process, through which novel categories are produced, mobilized, and spread throughout the globe, reaching a specialized judicial space as the IACtHR, is full of different modes of translation (Merry 2006; Santos 2014), in which multiple actors participate, including activists, victims, lawyers, judges, and policy experts. These translations also happen "in multiple directions, from social into legal (trans)national institutional spaces, as well as from above [...], below [...], and the sides [...]" (Santos 2014, 2) (3). Such multidirectional interpretations make them categories embedded in worldviews that are neither local nor global, but rather constituted in the enmeshment of discursive practices that break away with that very distinction. This is what I am describing as translocal. (4)
The legal category 'violence against women' is a good example of what I just outlined. Even though it is now a central one in the jurisprudence of the IACtHR on women's human rights, the Court was not its developer. Rather, the framing of 'violence against women' as a human rights violation is the product of a large and transnational feminist mobilization to use legal language and sanctions aiming to hinder different forms of violence suffered by women in distinct spaces. As Sally Engle Merry has shown, "the movement to define violence against women as a crime started in Western Europe, North America, Australia, and New Zealand in the 1970s and became global during the 1980s." (Merry 1996, 51). Outside of Europe and the United States, the movement "has adopted human rights language and UN conventions on human rights to condemn violence against women perpetrated by state action, such as in custody or in times of war." (Merry 1996, 51) The same approach has been increasingly used to frame violence against women in others spaces as well, such as the family, the street, and the workplace, targeting offenders other than state actors.
Researches conducted by transnational NGOs, such as Human Rights Watch (HRW), also attests the global character of the issue. In 1990, HRW established a Women's Rights Project "to monitor violence against women and gender discrimination around the world." (Merry 1996, 70) The result of this Project, carried out in alliance with HRW organizations around the world, consisted in various expert reports. These included issues such as "police abuse of women in police custody and prison in Pakistan (1992), rape and murder of women in Peru's armed conflict (1992), rape of Asian maids in Kuwait (1992), trafficking of Burmese women and girls into brothels in Thailand (1993), rape of Somali women refugees in Kenya (1993), rape in Haiti (1994), and state surveillance of women's virginity in Turkey (1994)." (Merry 1996, 70)
In this paper, I examine the global problem of 'violence against women' and how the Inter-American Court of Human Rights, an institution that is part of the 'transnational legal sphere', tackled it. While the IACtHR provides a space for women to confront and challenge local forms of patriarchy, the process through which the Court gives content to global categories, such as 'violence against women', is marked by several variables. These include, to mention but a few, elements specific to the history of the region, the composition of the Court, the pressure from local movements, and the framing pursued by lawyers.
Let me provide one example. The case with which I opened this paper had its merits appreciated by the IACtHR in 1997. By that time, feminist legal scholar Catherine MacKinnon had already developed the notion of rape as torture. More specifically, she first introduced the idea in 1993, in the face of the realities of mass rape in the former Yugoslavia's conflict (McGlynn 2008). For MacKinnon and many others, the international legal system should forcefully address and redress all forms of violence against women. In the case of Maria Elena Loayza Tamayo not only the Inter-American Commission and her representatives pursued the claim that she had been raped by state authorities while under their custody but also the victim herself testified to it. However, the IACtHR dismissed this specific charge under the argument of lack of evidence. During the trial, the Court already had access to the latest developments in the field, including how to deal with questions of evidence in similar cases, but it decided not to go into them and treat Maria Elena Loayza Tamayo's grievance as 'general state violence'. This instance shows that the incorporation and development of a legal category into an institutional repertoire takes more than simply being part of a 'transnational sphere', where ideas are generated and circulated. In the case of the IACtHR, besides the pressure from local feminist movements, NGOs, and victims themselves, it took a dramatic change in the bench's composition, with the inclusion of three female judges, besides the engagement of the Court's lawyers. (5)
Along these lines, this paper provides a bird's eye view of the development of the category 'violence against women' in the jurisprudence of the IACtHR, claiming that while this is certainly a global category, the process of translation in the Inter-American System, which is still ongoing, cannot be understood as a mere transposition of ideas circulating globally. In what follows, I first present a brief overview of Latin American feminisms' struggle to counter violence against women, highlighting not only some of their strategies but, and perhaps most important, the connections with what has been described as the 'global movement' (Merry 1996). Next, I delve into the Inter-American Court's jurisprudence to provide an analysis of the most important cases in which the category was explicitly addressed and advanced, paying attention to the content it was given throughout time. In this analysis, I also use elements and references from interviews that I conducted with some the Courts' lawyers during fieldwork in 2014. (6) Finally, and in conclusion, I tease out the lessons we can learn from this case study for the understanding of how legal categories are developed in the 'transnational legal sphere'.
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Latin American Feminisms and the issue of violence against women: A tale of multiple scales, diverse strategies and transnational connections
While feminist activists and organizations have always been an important political voice throughout Latin American history, which has also been marked by different forms of violence--for instance, colonial violence, dictatorships or violence of dependent capitalism--it was only recently that the two met. This is not to say that women and feminists in the region had not encountered the problem of violence before, but it was less than half a century ago that it became part of their working agenda. As Soledad Larrain (1999, 8) has historicized, the end of the 1970s and the beginning of the 1980s were marked by the establishment of new women's and feminist groups specifically focused on the issue of violence against women. In addition, many already established organizations included the problem in their programs and activities as of primary concern. (7) While many of these actors were initially concerned with state violence, which is understandable given the authoritarian regimes ruling most of Latin America, it was not long until activists and scholars started recognizing that acts of rape, torture, and sexual enslavement suffered by women in prisons were not "aberrant behaviors but part of broader 'societal archetypes and stereotypes' that were manipulated by torturers" (Keck and Sikkink 1998, 177). From this point on, feminist activism entered also the private sphere. If the women's movement in the United States and Western Europe played an important role in politicizing the issue of violence against women, particularly rape and domestic violence, in the mid-1970s, women's groups in Latin America were also key actors in laying the foundations for what later became known as a prominent transnational network (Keck and Sikkink 1998).
One of the initial important steps in this regional articulation was the First Meeting of Latin American Feminists, held in Bogota, in 1981. During that event, not only the activists...
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