"By denying the existence of unequal power relations between men and women, gender neutrality means gender blindness”.
Lilian Hofmeister, substitute Justice at the Austrian Constitutional Court
"In Brazil, the 1988 Constitution made it very clear that international law, and specifically with respect to human rights, is an integral part of the Brazilian legal system."
Sílvia Pimentel, PhD and Professor at the Law School of the Pontifical Catholic University of São Paulo (PUC-SP)
International law has made advances in recent years on how discrimination against women is to be treated, but this effort must continue so as to address the remaining gaps and ensure greater compliance with the rules by the signatory countries of the various existing agreements. Speakers Lilian Hofmeister and Sílvia Pimentel, members of the Committee on the Elimination of Discrimination against Women of the United Nations (CEDAW/UN), enriched the discussion with some of the milestones achieved in this agenda.
The process of designing international agreements on violence against women started in 1948 with the Universal Declaration of Human Rights. "After the Universal Declaration, several treaties and conventions were designed, constituting the international system currently in force”, Pimentel explained.
According to Hofmeister, the Universal Declaration represented a major step forward. However, by placing all human beings under the same human rights protection system, regardless of gender, it did not provide the appropriate, much-needed response to the unequal power relations the world has witnessed since time immemorial. The Declaration was gender-neutral. "Gender neutrality means gender blindness”, the Austrian judge claimed.
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In 1967, the UN General Assembly issued the Declaration on the Elimination of Discrimination against Women. The document marked a significant progress, but the principles embodied in the Declaration were not put into action in the following years, according to Pimentel, founder and member of the Latin American and Caribbean Committee. It was not until in 1979, when the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted, that the United Nations defined these forms of discrimination more clearly, establishing a more effective agenda to fight them. "The 1979 convention (which came into force in 1981) was the product of a commitment called ‘Decade for Women’, during which the UN held three major international conferences on the subject," said the Professor, who teaches at the Pontifical Catholic University’s Law School (PUC-SP). Sixty-four countries signed the Convention at its inception. Today, it has 189 signatories, including Brazil.
The Brazilian expert, who has been a leader of the feminist cause in the country since the 1980s, said that for many years “the political conditions (in the international scenario) did not favor the creation of a convention determining that violence against women is absolutely unacceptable and that each country must take responsibility (for curbing and punishing violence against women in their territory)."
In order to monitor the implementation of the Convention, the Committee on the Elimination of Discrimination against Women of the United Nations (CEDAW/UN Committee) was set up in 1982, consisting of 23 experts. Pimentel was a member of the Committee from 2005 to 2016 and chaired it from 2011 to 2012. Hofmeister has been a member since 2015. In addition to verifying compliance with CEDAW’s guidelines by the signatory countries, the Committee also makes general recommendations to fill in gaps and update the document.
Among recent advances, Pimentel highlighted General Recommendation No. 33 (2015) on women's access to justice: “If access to justice is not guaranteed to women who are victims of violence, the rights established in the constitution and ordinary legislation of the signatory countries produce virtually no effect,” she said.
Lilian Hofmeister also emphasized the importance of General Recommendation No. 35 (2017), in which violence against women and girls is defined as “violence which is directed against a woman because she is a woman or that affects women disproportionately.”
According to the substitute Justice of the Austrian Constitutional Court, "women know many forms of violence: structural and individual, violence in the public or in private sphere; physical, mental, psychological and economic violence." In order to fight the most dangerous consequence of this problem, i.e. gender-based killings of women, some countries, especially in Latin America, have adopted the term "feminicide". Brazil, for example, introduced the Feminicide Law in 2015, Pimentel said.
Hofmeister defended the importance of distinguishing the murders of women and men. “Statistics concerning homicide show more males than females as victims of murder. Does it mean that femicide is less prevalent? This is a misconception. The fact is that the circumstances in which women are killed are different. Men are killed in the public space by perpetrators with different motives (not the fact that the victims are men). Gender-based killings of women and girls occur mainly in the private sphere, perpetrated by parents and husbands." According to Justice Hofmeister, violence against women is usually related to the control of female sexuality. In most cases, it is the last in a sequence of acts of violence directed at a woman because she is a woman. In her opinion, the uniqueness of the social context in which women are killed justifies the criminalization of feminicide as a specific offence to punish perpetrators. And the punishment should be more severe: "feminicide is a hate crime and hate crimes have harsher penalties”.
Pimentel complemented the point made by Hofmeister by stating that any act of violence is more serious if committed in the private, intimate, family sphere. She explained, however, that punishment, while necessary, is not an end in itself. "We (feminists) want education; prevention is what we ultimately want," said the Professor.
Social Roles and Violence Against Women
In Brazil, the Maria da Penha Act (2006) defines the different manifestations of violence against women and their punishment and, as the Brazilian researcher said, it is one of the best known laws in the country, which is a great breakthrough.
"But why violence against women? Does it happen because a woman is biologically born as woman?” Pimentel asked. In her opinion, “gender is a dynamic concept and the philosophical and scientific developments that have emerged more recently must be taken seriously.” "Women become targets of violence (because and when) they fail to adequately fulfill the role (that society expects them to fulfill)," she said.
Hofmeister reinforced the argument of power asymmetry between men and women: "gender-based hierarchy serves to maintain this power distribution to the detriment of women and girls." Like Pimentel, she sees violence against women as a reprisal for noncompliance with subordinate roles traditionally attributed to them in patriarchal societies.
The two speakers expressed concern about the conservative wave that threatens different regions and countries. According to Professor Pimentel, international law should serve as a compass to stop setbacks in the prevention, punishment and fight against discrimination and also to reduce inequalities between men and women. “The 1988 Constitution made it very clear that international law, and specifically with respect to human rights, is an integral part of the Brazilian legal system,” she said.
"International law is a fundamental tool to help not only fill in gaps, but also at certain times (to curb) unfavorable interpretations in terms of safeguarding rights," she said in conclusion.
Beatriz Kipnis holds a master’s and bachelor’s degree in Public Administration and Government from the Getúlio Vargas Foundation (FGV-SP) and is an assistant coordinator of Studies and Debates at the FHC Foundation.