While the Geneva Conventions contain gender-specific provisions, the reality of women's and men's experiences of armed conflict have highlighted gender limitations and conceptual constraints within international humanitarian law. Judgements at the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) ad hoc tribunals have gone some way towards expanding the scope of definitions of sexual violence and rape in conflict. More recent developments in public international law, including the adoption of Security Council Resolutions 1325 and 1820 focused on women, peace and security, have sought to increase the visibility of gender in situations of armed conflict. This paper highlights important developing norms on women, peace and security. Although these norms are significant, they may not be radical enough to expand constructions of gender within international humanitarian law. This leaves existing provisions open to continued scrutiny.
1 Gardam, Judith, ‘A feminist analysis of certain aspects of international humanitarian law’, in Australian Yearbook of International Law, Vol. 12, 1992, p. 265.
2 Rape is committed by all sides in conflict and there have also been reported cases of sexual violence by UN peacekeepers. See e.g. Chinkin, Christine, ‘Rape and sexual abuse of women in conflict’, in European Journal of International Law, Vol. 5, 1994, p. 326.
3 Gardam, Judith, ‘Women and the law of armed conflict: Why the silence?’, in International and Comparative Law Quarterly, Vol. 46, 1997, p. 55.
4 Fourth World Conference on Women, Declaration and Platform for Action, A/CONF.177/20, 15 September 2005.
5 See e.g. The War within the War: Sexual Violence against Women and Girls in Eastern Congo, Human Rights Watch, New York, 2002; Megan Bastick, Karin Grim and Rahel Kunz, Sexual Violence in Armed Conflict: Global Overview and Implications for the Security Sector, DCAF, Geneva, 2007; Climate of Fear: Sexual Violence and Abduction of Women and Girls in Baghdad, Human Rights Watch, New York, 2003.
6 See e.g. Marie Claire Faray-Kele, ‘Africa: Women – Violence in war and in peace’, 20 March 2008, available at http://allafrica.com/stories/200803200580.html (last visited 8 February 2010); Patricia H. Hynes ‘On the battlefield of women's bodies: An overview of the harm of war to women’, in Women's Studies International Forum, Vol. 27, 2004, pp. 431–445.
7 Lindsey, Charlotte, Women Facing War: ICRC Study on the Impact of Armed Conflict on Women, ICRC, Geneva, 2001, p. 37.
8 Women, Peace and Security, Canadian Research Institute for the Advancement of Women, Fact Sheet No. 6, 2004.
9 Human Rights Watch has documented the widespread use of sexual violence in Rwanda and the impact that the violence continues to have on social relationships. See Sexual Violence during the Rwandan Genocide and its Aftermath, Human Rights Watch, New York, 1996.
10 Gardam, Judith and Charlesworth, Hilary, ‘Protection of women in armed conflict’, in Human Rights Quarterly, Vol. 22, No. 1, 2000, p. 148.
11 Pankhurst, Donna, ‘The “sex war” and other wars: Towards a feminist approach to peacebuilding’, in Haleh Afshar and Deborah Eade (eds), Development, Women, and War: Feminist Perspectives, Oxfam GB, Oxford, 2004.
12 Linos, Natalia, ‘Rethinking gender-based violence during war: Is violence against civilian men a problem worth addressing?’, in Social Science and Medicine, Vol. 68, 2009, p. 1549.
13 Schmitt, Michael, ‘21st century conflict: Can the law survive?’, Melbourne Journal of International Law, Vol. 8, No. 2, 2007, pp. 443–476.
14 SC Res. 1325, 31 October 2000.
15 SC Res. 1820, 19 June 2008.
16 In addition to SC Res. 1325 and SC Res. 1820, two additional resolutions on women, peace and security have recently been adopted by the Security Council, namely SC Res. 1888, 30 September 2009, and SC Res. 1889, 5 October 2009.
17 Niarchos, Catherine N., ‘Women, war, and rape: Challenges facing the International Tribunal for the former Yugoslavia’, in Human Rights Quarterly, Vol. 17, No. 4, 1995, p. 654.
18 Rosemarie Putnam Tong, Feminist Thought: A More Comprehensive Introduction, Westview Press, Boulder, Colorado, 1998, pp. 2 and 6.
19 Article 12, Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, and Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.
20 Article 14, Geneva Convention (III) Relative to the Treatment of Prisoners of War.
21 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3.
22 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287.
23 Michael Emin Salla, ‘Integral peace & power: A Foucauldian perspective’, in Peace and Change, Vol. 23, No. 3, 1998, p. 315.
24 J. Gardam, above note 3, p. 57.
25 Fourth Geneva Convention, Article 27.
26 Heather Milner and Brita Schmidt, ‘Rape as a weapon of war’, in British Council Newsletter, October 1999, pp. 10–11, available at http://www.britishcouncil.org/gendernetwork19.pdf (last visited 8 February 2010).
27 Maria B. Olujic, ‘Embodiment of terror: Gendered violence in peacetime and wartime in Croatia and Bosnia-Herzegovina’, in Medical Anthropology Quarterly, Vol. 1, No. 12, March 1998, p. 32.
28 Protocol I, Art. 76(1).
29 J. Gardam, above note 3, p. 57.
30 C.N. Niarchos, above note 17, p. 657.
31 Ibid., p. 658.
32 N. Linos, above note 12, p. 1549.
33 Ibid., p. 1549.
34 C.N. Niarchos, above note 17, p. 660.
35 C. Lindsey, above note 7, p. 26.
36 J. Gardam, above note 1, p. 271.
37 Ibid., pp. 274 and 276. Article 44(3) of Protocol I states ‘ … he shall retain his status as a combatant, provided that in such situations, he carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate’.
38 Working group session on DDR, Promoting Women's Participation in Peace and Security Processes: Operationalizing UN Security Council Resolution 1325, conference held at Joan B. Kroc Institute for Peace & Justice, University of San Diego, 18–20 November 2004.
39 Statute of the International Criminal Tribunal for Rwanda, in International Legal Materials, Vol. 33, 1995, p. 1598.
40 Statute of the International Criminal Tribunal for the former Yugoslavia, International Legal Materials, Vol. 32, 1993, p. 1525.
41 Prosecutor v. Jean Paul Akayesu, International Criminal Tribunal for Rwanda, Case No. ICTR-96-4-T 2 September 1998.
42 Ibid., para. 585. As noted by the judgement, rape is classified as a crime against humanity under Article 3(g) of the Statute of the International Criminal Tribunal for Rwanda.
43 Ibid., para. 687.
44 Ibid., para. 731.
45 Ibid., para. 494.
46 Ibid. In paragraph 494 the requirements for genocide are outlined. Under Article 2(3)(a) of the ICTR Statute (above note 39), Articles 2 and 3 of the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277 are adopted verbatim.
47 Ibid., para. 507.
48 Buss, Doris E., ‘Rethinking rape as a weapon of war’, in Feminist Legal Studies, Vol. 17, No. 2, August 2009, p. 149.
49 Ibid., p. 151.
50 Ibid., p. 153.
51 Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9, 17 July 1998, Article 7(1)(g).
52 Human Rights Watch, above note 9.
53 Under Article 6 of the ICC Statute, there is scope for rape or crimes of sexual violence to be included under a number of provisions defining what is deemed to be an act of genocide: ‘(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group’.
54 Askin, Kelly D., ‘Sexual violence in decisions and indictments of the Yugoslav and Rwandan Tribunals: Current status’, in American Journal of International Law, Vol. 93, No. 1, 1999, p. 120.
55 Dixon, Rosalind, ‘Rape as a crime in international humanitarian law: Where to from here?’, in European Journal of International Law, Vol. 13, No. 3, 2002, p. 700.
56 C.N. Niarchos, above note 17, p. 675.
57 ‘Report of the Economic and Social Council for the year 1997’, A/52/3/Rev.1, 18 September 1997, p. 24.
58 Gender-specific women's concerns were increasingly acknowledged following the UN First World Conference on Women, held in Mexico in 1975, which produced the Declaration of Mexico on the Equality of Women and Their Contribution to Development and Peace, 1975, E/CONF66/34.
59 Beijing Platform for Action, above note 4, para. 131.
60 See SC Res. 1261, 25 August 1999, on children and armed conflict, and SC Res. 1314, 11 August 2000, also on children and armed conflict.
61 See SC Res. 1265, 17 September 1999, and SC Res. 1296, 19 April 2000, which both consider the protection of civilians in armed conflict.
62 SC Res. 1325, preambular para. 5.
63 Ibid. See e.g. Clause 5 regarding the incorporation of a gender perspective into peacekeeping operations.
64 E.g. Fourth Geneva Convention, above note 22.
65 E.g. Protocol I, above note 21, and Protocol Additional to the Geneva Conventions of 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609.
66 Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150.
67 Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267.
68 Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, 1249 UNTS 13.
69 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, GA. Res. 54/4, 15 October 1999.
70 Convention on the Rights of the Child, 20 November 1989, GA. Res. 44/25.
71 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, A/RES/54/263 of 25 May 2000, and Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, A/RES/54/263 of 25 May 2000.
72 SC Res. 1325, above note 14, Clause 9.
73 United Nations ‘Women, peace and security’ study submitted pursuant to Security Council Resolution 1325 (2000), New York: United Nations, 2002, para. 116. This is also evidenced in an annotated guide to SC Res. 1325 which fleshes out the provisions of the framework, ‘UNIFEM Security Council Resolution 1325: Annotated and explained’, UNIFEM, 22 September 2006, available at http://www.un.org.np/reports/UNIFEM/2006/2006-9-22-UNIFEM-sec-council-report-eng.pdf (last visited 8 February 2010).
74 SC Res. 1325, above note 14.
75 Ibid., Clause 11.
76 Ibid., Clause 8(a).
77 Merav Datan, Women, peace and security: A feminist analysis of Security Council Resolution 1325, LLM Research Paper Laws 582, Law Faculty, Victoria University of Wellington, 2004.
78 SC Res. 1325, above note 14, Clause 9.
79 D.E. Buss, above note 48, p. 151.
80 Louise du Toit, paper presented at the Law, Time and Reconciliation workshop, University of Glasgow, 17–18 May 2004, and her article ‘Feminism and the ethics of reconciliation’, in Eurozine, March 2007, available at http://www.eurozine.com/articles/2007-03-16-dutoit-en.html (last visited 8 February 2010). Du Toit points to the increased levels of rape and sexual violence in the post-Truth and Reconciliation Commission period in South Africa.
81 Barrow, Amy, ‘ “[It's] like a rubber band”: Assessing SC Res. 1325 as a gender mainstreaming process’, in International Journal of Law in Context, Cambridge University Press, Vol. 5, No. 1, March 2009, p. 57.
82 Personal communication, received 19 May 2007.
83 SC Res. 1820, above note 15, para. 1.
84 Personal communication, received 13 June 2008.
85 SC Res. 1325, above note 14, Clause 1.
86 Coulter, Chris, ‘Female fighters in the Sierra Leone war: Challenging the assumptions?’, in Feminist Review, Vol. 88, No. 1, April 2008, pp. 22 and 23.
87 Ana Cristina Ibáñez, ‘El Salvador: War and Untold Stories – Women guerrillas’, in Caroline O.N. Moser and Fiona C. Clark (eds), Victims, Perpetrators or Actors? Gender, Armed Conflict and Political Violence, Zed Books, London and New York, 2001, pp. 117–130.
88 See e.g. Al-Ali, Nadje and Pratt, Nicola, ‘Women's organising and the conflict in Iraq since 2003’, in Feminist Review, Vol. 88, No. 1, April 2008, pp. 74–85.
89 See e.g. analysis of the Sudanese Women's Voice for Peace organization in Hilhorst, Dorothea and van Leeuwen, Mathijs, ‘Grounding local peace organisations: A case study of Southern Sudan’, in Journal of Modern African Studies, Vol. 43, No. 4, 2005, pp. 537–563.
90 N. Al-Ali and N. Pratt, above note 88, p. 81.
91 K.D. Askin, above note 54, p. 700.
* The author would like to thank her fellow faculty members at the Chinese University of Hong Kong for their helpful comments and advice on earlier drafts.
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