Culture confronts the international.

• Author: Young, Donna E.
• Position: Conceptualizing Violence: Present and Future Developments in International Law

Shortly before this Albany Law Review Symposium, the New York Times reported the death sentence given to two accused adulterers in Afghanistan.(1) The couple had been found guilty of having an adulterous relationship and were sentenced to death by stoning.(2) The article described in graphic detail the public ceremony in which the two accused were condemned and stoned to death by members of the Taliban religious movement.(3) According to Taliban leaders, stoning, as a form of punishment, is found in provisions of the Shari'a, the Muslim legal code, imposed by the Taliban after rising to power in parts of Afghanistan.(4) Clearly this penalty clashes with international human rights principles.(5)

In parts of West Africa there are customs requiring convicted rapists to give custody of their female children to the village priest who will keep the child as a slave, often subjecting her to physical and sexual abuse.(6) Despite the influences of modernity, such ritualistic victimaization persists under the auspices of ancient religious customs.(7)

In the United States, approximately twenty-four States have laws criminalizing homosexual sodomy the justifications for which are based on traditional and Biblical notions of morality.(8) In upholding a Georgia criminal statute making it a criminal offense to engage in private consensual sexual relations, [for two adults of the same sex,] the Supreme Court invoked tradition and Biblical authority in rejecting what Justice Burger referred to as an argument for the existence of "a fundamental right to commit homosexual sodomy."(9) In Bowers v. Hardwick,(10) Chief Justice Burger, in his concurring opinion, refers to the origins of anti-sodomy legislation.(11) He explains that "the proscriptions against sodomy have very 'ancient roots.' Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western Civilization. Condemnation of those practices is firmly rooted in Judalo-Christian [sic] moral and ethical standards.(12) These antisodomy laws have been upheld in the United States notwithstanding a United Nations Human Rights Committee decision(13) ruling that a similar Australian anti-sodomy "law violated the privacy and nondiscrimination provisions of the International Covenant on Civil and Political Rights (ICCPR)."(14)

International human rights standards are often circumvented with the claim that domestic laws reflect cultural practices, and that to the extent that international norms conflict with cultural practice, they are to be given little or no weight in regulating domestic matters. The stories outlined above illustrate important considerations about the role of international law in regulating domestic laws and practices that violate international human rights norms. Several interesting questions arise from attempts by nation states to justify, (as being part of domestic law or custom), practices otherwise illegal under international law. What are the consequences to international legal nones when countries ignore international law and rely instead on religious or cultural practice to institute harsh and frequently violent treatment of its peoples? What is the international legal response to such violence when inflected on the basis of sexual orientation, race, gender, ethnicity or religion? How can international law be used to change domestic law and practice? The articles set out in this issue survey national and international legal developments with respect to these complex issues. What distinguishes these articles from others dealing with violence in international law is their focus on the violence committed against individuals by private citizens, not by state actors. How are international human rights norms changing to accommodate this shift in focus?

In Violence Against Aboriginal Women in Australia: Possibilities For Redress Within the International Human Rights Framework, Professor Andrews examines the role of domestic and international laws in regulating violence against Aboriginal women in Australia(15) The issue is complex, involving the interplay of factors relating to race, gender, nationhood, colonialism, economic hardship, social inequality and community rights and interests. If, in the past, Aboriginal women enjoyed status and respect in familial and communal relationships, their roles were to change under colonial rule, resulting in the denial of political and social authority both within and outside their communities.(16) As Professor Andrews suggests, "[i]f traditional Aboriginal society harbored gender inequality, the imposition of the colonial policies cemented this inequality by ensuring that the Aboriginal male view was the dominant reflection and interpretation of Aboriginal society."(17) For example, in questions relating to Aboriginal communities, the federal government is likely to consult with male Aboriginal leaders.(18) Interpretation of Aboriginal interests, therefore, reflects a viewpoint which is not necessarily that of Aboriginal women.

Made vulnerable by years of economic, political and social marginalization, Aboriginal women face many obstacles in their efforts to redress the problem of violence from within and from outside their communities. After examining the history of violence against Aboriginal people and describing the current tensions between Aboriginal women and the non-Aboriginal feminist movement, Professor Andrews explores the advantages and limitations of international human rights laws and policies in controlling violence against Aboriginal women.(19) Increasingly, Aboriginal peoples worldwide have turned to international human rights instruments in their struggles for sovereignty, dignity and equality.

In Australia, Aboriginal groups have used global networks "to internationalize their struggle and garner strategic victories."(20) However, Aboriginal women, although active in these efforts, have not been as successful in using the international...