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Denying Access to Family Planning as a State Crime

July 18, 2012 • Family Planning, Daily Email Recap

Below are excerpts of Riane Eisler’s chapter in an upcoming Cambridge University Press book, to be called “Crimes Against Future Generations”. Riane Eisler is a best-selling author, has addressed the UN General Assembly and currently focuses on her work with Center for Partnership Studies.

EXCERPTS: Protecting the Majority of Humanity: Toward an Integrated Approach to Crimes against Present and Future Generations

Riane Eisler (with special thanks to Margaret Frimoth)

The last half century has seen an expansion of the purview of international criminal law — from war crimes to crimes against humanity — as most recently codified in the Rome Statute, which lists a number of human rights violations as “Crimes against Humanity” whether they are committed in war or peace.

Activities that destroy our natural life-support systems infringe on the human right to life and security, and thus can be considered crimes against humanity. But to change policies and behaviors that fail to respect these and other human rights, we need an integrated approach…

Until recently, human rights theory and action has focused primarily on the so-called “public sphere” from which the majority of humanity – women and children – were traditionally barred. However, if we are serious about a more just, peaceful, and sustainable future, we have to recognize that our first, and most lasting, lessons about human relations are learned not in the public but in the private sphere. This is where people learn to respect the rights of others – or where they learn to view human rights violations as normal.

An effective approach to protecting the human rights of present and future generations must include the private sphere of family and other intimate relations. This is essential not only because widespread, chronic, and abhorrent, violations of the human rights of women and of children are a global pandemic, but also because psychology and neuroscience show that what children observe and/or experience in family affects their adult beliefs, behaviors, political attitudes – even the neural structures of their developing brains.

Yet many people still see family and other relations in the private sphere as separate, or at best less important, than political and economic relations in the public sphere. In reality, these two spheres are integrally interconnected, as will be shown in this chapter and is briefly illustrated by the following examples:

  • While poverty and hunger are still discussed in generalities, the majority of the world’s poor and the poorest of the poor are women and children.
  • Study after study, including for example the annual Arab Human Development Reports, document that economic development hinges on gender equality.
  • Studies indicate that armed conflicts are less likely where there is gender equity.
  • Research from both psychology and neuroscience shows that childhood experiences are key to human capacity development.
  • Research indicates that children who witness or experience violence in their families are more likely to accept and perpetuate violence in other relations.

Opposition to an Integrated Approach

It was argued that that there must be no interference in the internal affairs of states, it is sometimes argued that what happens inside a family should be free from outside interference. But the same grounds for the rejection by international law of “non-interference” regarding the conduct of states are applicable to the rejection of “non-interference” regarding human rights violations in families.

A related argument would invoke the right to privacy. But that is not the same as immunizing family decisions – or more specifically, the decisions of those who wield power in a family – from public scrutiny and regulation. In short, the protection of personal rights is not synonymous with noninterference with actions within the family – and there often is a direct conflict between the two.

Perhaps the most frequent ground given for opposing challenges to widespread and systemic human rights violations in family and other intimate relations is that what we are dealing with is largely a matter of customary law deeply embedded in traditions. By challenging these traditions, it is argued, we are eradicating traditional cultures and meddling in peoples’ religions. Again, this is a fallacious argument. To help eradicate human rights violations is not the same as eradicating traditional cultures.

A related objection is that people from the West have no right to point to cultural traditions as crimes against present and future generations if they are in the global South. This cultural relativism relies on a patronizing double standard that would give less human rights protection those who happen to be in the global South. Further, crimes against women and children are also still a major problem in the global North, and are also still justified on traditional/moral grounds in some Western subcultures.

To build a world where human rights and human dignity have any meaning, we must support social justice movements in all areas of the world. Indeed, the emerging international doctrine of Responsibility to Protect (R2P) recognizes that we have the responsibility to “interfere” wherever systemic and egregious human rights violations are involved.

The Rome Statute (especially Article 7 on Crimes against Humanity), the principle of Responsibility to Protect (R2P), and a growing number of UN Conventions, Covenants, and Declarations offer a springboard for applying emerging international law principles to widespread, abhorrent, and systemic violations of the human rights of women and children that a state condones when it fails to prohibit or establish adequate protection against these practices. The principle of Responsibility to Protect (R2P) is particularly important, as it strengthens the interpretation of the Crimes against Humanity Section of the Rome Statute to hold those officially or unofficially acting for governments responsible when practices are well known, widespread, large-scale abuses against civilian populations that cause great suffering or serious injury to physical or mental health, but are not included in a state’s laws, or if there are laws, they are not enforced.

To this end, in this chapter it is proposed to:

1. Expand the interpretation of relevant sections of the Rome Statute, particularly sections of Article 7 – Crimes against Humanity, to include as crimes against both present and future generations: egregious, widespread, and systemic practices that cause women and children great suffering or serious injury to physical or mental health but are not punishable under a state’s laws or if there are laws, they are not enforced.

2. Where necessary, amend the Rome Statute to include gender and childhood under the description of protected groups.

The sections that follow describe widespread, abhorrent, and systemic crimes against women and children that are still not outlawed and/or adequately prosecuted. They offer statistics and examples, show the individual and social damage they cause to both present and future generations, and propose legal remedies utilizing the Rome Statute.

Denial of Access to Maternal Health Care and Family Planning

The UN Population Fund, International Planned Parenthood, and a myriad other organizations have been working diligently to ensure women have adequate maternal care and family planning access, every minute a woman dies as a result of problems related to pregnancy, unsafe abortions, and childbirth, the vast majority in Asia and Sub-Saharan Africa.Many of these women became pregnant because they are denied access to family planning.

Many of those who survive complications related to childbirth – approximately 10 million women each year – are left with horrible health problems due to inadequate delivery care. Similarly, often women do not have access to proper maternal care because they are not permitted to go to a male doctor and there are no female ones.

Most critically, despite unconscionably high maternal death rates and unwanted pregnancies, governments around the world still fail to make family planning and maternal health care a priority. This is true even in rich nations such as the United States, where maternal mortality rates have more than doubled since the 1980s, and are now higher than in 40 other countries.

As Lee Jong-wook, former Director-General, World Health Organization, noted, “Mothers, the newborn, and children represent the well-being of a society and its potential for the future. Their health needs cannot be left unmet without harming the whole of society.” Indeed, when states fail to make family planning and maternal health care a priority, they are committing crimes against both present and future generations, failing to meet their Responsibility to Protect (R2P).

Legal Remedies

Rome Statute Article 7 – Crimes against Humanity: especially Section 7k – Inhumane acts; amend Article 6 to include gender: Article 6b – Causing Serious bodily or mental harm to members of a group.

Female Genital Mutilation/Cutting (FGM/C)

This crime is one of the most horrible forms of torture imaginable, yet it is perpetrated on millions of children. The World Health Organization reports that in Africa three million girls are at risk for FGM annually, and 92 million girls age 10 years and above have undergone FGM in that continent alone. In Egypt over 90 percent of women are genitally mutilated. FGM/C is widespread in other countries in the Middle East and Asia, and is exported by immigrants to North America, Europe, and Australia. FGM/C varies from region to region, from the cutting out of the clitoris to also cutting out the labia and sewing the vagina together so it must be cut open for intercourse and again for childbirth.

Even though at last genital mutilation is gaining international attention and some progress has been made in eliminating this practice, untold numbers of children still die from these barbaric mutilations. For the 140 million women and girls worldwide living with its consequences, life is often a nightmare of daily torture due to the psychological traumas and medical complications resulting from FGM/C. Among these, since in many cases urine and menstrual blood cannot drain properly, are infections, abscesses, and cysts. Intercourse is not only not pleasurable, but painful, and childbirth is often an ordeal.

Women who have themselves been subjected to FGM/C are so desensitized to the pain of even their daughters and the daughters of their neighbors that they often perform these inhuman procedures. Of course, they are pressured to do so by their traditions, which define women as sexual objects and breeders for men. But to so betray the trust of helpless children from generation to generation requires a psychological numbing that is characteristically associated with trauma.

Indeed, neuroscientists have found that severe trauma affects the brain itself, especially the amygdala and hippocampus (regions involved in emotions) and the prefrontal cortex (involved in reasoning and planning). It is not far-fetched therefore to argue that culturally enshrined traumas affect those subjected to them also in their roles as parents and community members, and thus as transmitters of mental maps about relationships based on domination and submission.

As the Egyptian physician Nawal El Saadawi notes, genital mutilation is an instrument for desensitizing girls and women not only to the pain of those of their gender, but to the realities of their oppression. In El Saadawi’s words, “False consciousness makes women obedient instruments of their own oppression and transmitters of this false consciousness to future generations of children.” In short, cultural traditions that justify and perpetuate traumas such as FGM/C serve an integral function in maintaining oppressive and unjust social systems from generation to generation.

Legal Remedies

Rome Statute’s Article 7, Crimes against Humanity, especially section 7f – Torture.

Child Marriage and Forced Marriage

Despite efforts to outlaw it, child marriage is common in many parts of the world. And while marriages arranged by children’s parents sometimes also involve boys, it is again girls who are the vast majority of those who suffer. Over 51 million girls under 18 in the developing world are forced to marry, sometimes to men over twice their age. One in seven girls is given in marriage before the age of 15. More than 100 million girls will be child brides during the next 10 years if current practices continue.

The practice is most common in sub-Saharan Africa and Southern Asia, but is also found in other parts of Asia, the Middle East, North Africa, and Latin America. In Ethiopia and parts of West Africa, girls are married as early as age 7.

The consequences for these child brides are brutal. They are often victims of beatings and other violence by their husbands and family; for example, India has the highest levels of domestic violence among women married before the age of 18. Some die from injuries due to too early forced intercourse. And many die from becoming pregnant too young. Survivors also face enormous health risks, including obstructed labor leading to fistulas. In Nigeria alone, up to 800,000 women suffer from fistula, and many are thrown out by their husbands and families to die on the streets.

For the most part, the world is still indifferent to the cruel lives and deaths of children forced into marriage – even though the social consequences of depriving millions of girls of their childhood, and in all too many cases, of their lives. Since these girls are deprived of their education, there is economic damage from lost human potential, which perpetuates poverty, illiteracy, and other impediments to economic development. There are also other important cultural consequences, such as acceptance by people of brutality as moral.

Legal Remedies

Rome Statute, especially Article 7c – Imprisonment; Article 7g – Forced pregnancy, Article K -Other Inhumane Acts. Also, amend Article 6 to include gender and childhood.

Conclusion:

Historically, international criminal law has developed by incorporating concepts of human rights law. This has been the case with the Rome Statute, especially Article 7, Crimes against Humanity, which, as Antonio Cassese notes, “incorporates or overlaps with concepts of human rights law (the right to life, not to be tortured, to liberty and security of the person, etc.) laid down in provisions of international human rights instruments.” These instruments include the Universal Declaration of Human Rights and subsequent Covenants, Declarations, and Conventions that, as Cassese writes, are “intended to protect the human person.”

Following this precedent, the integrated approach here outlined proposes that the next step for international criminal law is to incorporate concepts of human rights law laid down in human rights instruments specifically designed to protect the majority, including the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, and the Declaration on the Elimination of Violence against Women. These instruments, developed with the goals of binding States to protect the women and children in their jurisdictions, apply to human rights violations in both the public and so-called private spheres, require that States enact laws to this end, and that they enforce these laws.

1. A first step to enforce these goals through international criminal law is to protect women and children from the widespread, egregious, systemic crimes against them by using existing provisions of Article 7 (Crimes against Humanity) of the Rome Statute.

2. A second step is expanding the purview of Article 6 (Genocide) to include “gender” and “childhood” under the categories protected from “killing,” “serious bodily or mental harm,” “infliction of conditions of life calculated to bring about its physical destruction in whole or in part,” and “imposing measures intended to prevent births within the group.”

These proposals are in line not only with the principle of Responsibility to Protect (R2P) but with the most elementary principles of ethics and morality. They are foundational to the protection of human rights in both the private and public spheres – from protection from violence to protection from the destruction of our natural environment.

A central principle of international criminal law is that when a State fails to protect people from widespread, large-scale abuses that cause great suffering or serious injury to physical or mental health through its policies and laws or through the failure to enforce its laws, it is complicit in these abuses.

Indeed, we are all complicit if we avert our eyes from the widespread, systemic, and atrocious crimes against women and children that continue unabated and unprosecuted in our world. It is generally recognized that failure to report a crime is itself a crime. For their sake – and for the sake of us all – we cannot continue to fail the most vulnerable among us.


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