Women and Children in Armed Conflicts
Women and children are often the most vulnerable in the event of an armed conflict and are subjected to outrages of the worst kind during and after war.1Natalia Buchowska, ‘Violated or Protected. Women’s Rights in Armed Conflicts after the Second World War’ (2016) 2 ICJ 72 Women bear the burden of conflict and often as civilians have to endure the horrors of war whether in the form of sexual or other violence, the loss of male breadwinners, property, displacement, or the absence of reproductive or other health services. Children meanwhile are vulnerable as they are often recruited to either the armed forces or to armed groups, sometimes forcibly. This forced or voluntary conscription at an age when they are not fully psychologically developed can have long-term effects for their future. This is often exacerbated by the fact that conflict often displaces their families and disrupts their access to education. There is a need to pay special attention to these vulnerable groups and analyse the particular impact that war can have upon them. This month at the Diplomacy, Law and Policy Forum we will be looking at women and children in conflicts. The articles for this theme focus on the protection IHL affords to women and the ways in which it is insufficient, the issue of the recruitment of child soldiers, the need to rehabilitate child soldiers post-conflict, and the ways in which women are increasingly participating in hostilities in contemporary armed conflicts. This scholarship aims to shed light on the various ways in which women and children are affected and what can be done to ameliorate the worst effects of conflict on these groups.
Women in War
Women often bear the brunt of war in ways very differently to men.2Judith Gardam & Hilary Charlesworth, ‘Protection of Women in Armed Conflict’ (2000) 22 Hum Rts Q 148 The effects on women of conflict differ depending on their cultural and societal roles, however, it often exacerbates inequalities and injustices that were prevalent before the war.3Ibid. The lack of education or training for women then makes it harder for them to support themselves and their families financially and food scarcity often means malnourishment for women. This also makes them all the more vulnerable when fighting breaks out because male breadwinners are often lost to families.4Ibid. They may also suffer sexual violence during the course of hostilities or be similarly mistreated afterwards when displaced due to the fighting.5Ibid. Furthermore, sanctions that are imposed during a conflict can have more deleterious effects on women.6Ibid.
In some ways, though, women can be empowered by war as women take on roles and positions traditionally filled by men, or the fighting removes abusive partners from their home.7Ibid. Moreover, as was seen as a consequence of the displacement in FATA, women have been able to obtain national identity cards and become visible to the state in a way that was not possible prior to the conflict or their displacement.8International Crisis Group, Women and Peacebuilding in Pakistan’s North West, Report 321/Asia 14, February 2022 At the same time, women are often involved in combatant roles in contemporary armed conflicts far more than before. Women make up 15.6% out of the 1.1 million soldiers in the US Army and an estimated one-fifth of the Eritrean army are women.9Natalia Buchowska, ‘Violated or Protected. Women’s Rights in Armed Conflicts after the Second World War’ (2016) 2 ICJ 72
While IHL includes provisions which prohibit discrimination, they do allow for differentiation on the basis of sex. The ICRC’s Commentary to the Third Geneva Convention states that “The prohibition of discrimination is not in fact incompatible with certain differentiation in treatment for which specific provision is made in various articles of the Convention…. The wording excludes differentiation only when it is of an adverse nature. Absolute equality might easily become injustice, if applied without regard to considerations such as state of health, age, sex, rank of professional aptitude. The principle of equality in the convention must therefore be understood in this way which admits such differentiation”.10ICRC Commentary on III Geneva Convention (1960), p. 154. As a result, IHL includes specific protections which provide for additional food and medical care during pregnancy, sanitary requirements, separate dormitories, separate places of detention, etc.11Also see R.K. Dixit, ‘Special Protection of Women During Armed Conflicts under the Geneva Conventions Regime’ (2002) 2 ISIL YB Int’l Human & Refugee L 147 Out of around 650 provisions in the Geneva Convention regime, more than 40 are specifically addressed to the protection of women.12Ibid.
Article 46 of the Hague Conventions obligates parties to respect ‘family honor and rights’ of persons, this provision is broadly interpreted to include sexual violence. Prohibitions on sexual violence are also found in the Fourth Geneva Convention and the Additional Protocols. Most significant of these is Article 27 of the Fourth Geneva Convention which states that women who are protected persons “shall at all times be humanely treated, and shall be protected especially against all acts of violence”. This has been construed to broadly prohibit the rape, sexual violence, enforced prostitution, or indecent assault against women who are protected persons. Moreover, Article 75 of Additional Protocol I prohibits outrages upon personal dignity and humiliating and degrading treatment. Article 76(1) goes on to expressly prohibit sexual violence of women and requires that they be respected and protected against rape, forced prostitution and any form of indecent assault. Common Article 3 to the Geneva Conventions also prohibits outrages upon personal dignity, in particular humiliating and degrading treatment. In terms of accountability and the enforcement of IHL under international criminal law, sexual violence in armed conflicts can be a war crime,13Article 8(b)(xxii) and Article 8(c)(vi) of the Rome Statute genocide,14Article 6(b) of the Rome Statute crimes against humanity15Article 7(g) of the Rome Statute or human rights violation as is indicated in the Rome Statute as well as judgments by international criminal tribunals.16Also see generally Ntombizozuko Dynai-Mhango, ‘The Jus Cogens Nature of the Prohibition of Sexual Violence against Women in Armed Conflicts and State Responsibility’ (2016) 27 Stellenbosch L Rev 112
IHL provisions have been criticised for including outdated notions of ‘honour’ and chastity’ which reflect the time they were drafted rather than focusing on women’s inherent human dignity. However, it can be argued that the substantive protections of these laws do encompass all that is required to ensure that women’s dignity and worth is protected. Gardam and Charlesworth argue that “IHL fails to take account of women as subjects in their own right. It takes the experience of men as the starting point.”17Judith Gardam & Hilary Charlesworth, ‘Protection of Women in Armed Conflict’ (2000) 22 Hum Rts Q 148 They argue that this is unjust as it takes the experience of men as the norm against which rules should be constructed. While they acknowledge that women receive special protection under IHL, for instance, while pregnant or prisoners of war, this relates only to the sexual or reproductive aspects of their lives.18Ibid. So as a point of example, they argue that while the Third Geneva Convention does provide for segregation in living quarters and other allowances for female prisoners of war it does not provide for them adequately in terms of their reproductive health.19Ibid.
The ICRC in its report on the Gendered Impacts of Armed Conflict and Implications for the Application of IHL discusses the meaningful participation of women in decision-making roles focusing this on the different approaches they would take as ‘reasonable military commanders’.20International Committee of the Red Cross (ICRC), Gendered Impacts of Armed Conflict and Implications for the Application of International Humanitarian Law, ICRC, Geneva, June 2022. For instance, in terms of complying with the precautionary principle, a female commander may understand better that getting an advance warning to women would be harder than for men.21Ibid. This is because women spend less time outside the home and also because of the digital divide across genders which affects their access to information.22Ibid. A female military commander may thereby work to bridge these divides in other ways so that warnings are received by women. However, an issue arises in ensuring that this form of representation is not purely tokenistic.
Gardam and Charlesworth themselves admit to this as they argue that simply including women in initiatives after or during conflict is seen as an “add women and mix” approach which has not effected any meaningful change to existing structures.23Judith Gardam & Hilary Charlesworth, ‘Protection of Women in Armed Conflict’ (2000) 22 Hum Rts Q 148 One of the assumptions that female representation is based on is the notion that women are inherently more peaceful than man – this in fact reinforces stereotypes and does not take into account women leaders who have themselves gone to war.24Ibid. Moreover, Shephard points out that there is an increasingly well-evidenced feminist claim that “there is neither a single nor a universal relationship between the percentage of women elected to political office and the passage of legislation beneficial to women as a group”.25Laura J. Shepherd, ‘Women, armed conflict and language – Gender, violence and discourse’ (2010) 92 Int’l Rev Red Cross 143, quoting “Sarah Childs and Mona Lena Krook, ‘Should feminists give up on critical mass? A contingent yes’, in Politics and Gender, Vol. 2, No. 4, 2006, p. 523” However, perhaps it is better to look at it as a form of ‘simple justice’, as they argue, that women should be in these roles because “[t]heir lives are what is being dealt with; thus they should have a say in any decisions that are made.”26Judith Gardam & Hilary Charlesworth, ‘Protection of Women in Armed Conflict’ (2000) 22 Hum Rts Q 148
In conclusion, much has been achieved in terms of the codification of laws which attempt to provide adequate and sufficient protections based on differentiation among the sexes. However, there is a greater way to go in guaranteeing respect and protection to women in conflicts and all the various ways they are vulnerable in hostilities.
Protection of Children in Conflict
The Coalition to Stop the Use of Child Soldiers wrote in its report from 2008 that, “[w]hen armed conflict exists, children will almost inevitably become involved as soldiers”.27Radhika Coomaraswamy, ‘Protecting Children in Armed Conflict’ (2012) 36 Fletcher F World Aff 5 However, many disagree that the involvement of children in war is an inevitability or an unwinnable battle.28Ibid. This is especially since there are wars in which children have not participated and in which military commanders have refused to allow the recruitment of children.29Ibid. As Udombana aptly puts it, “war is not child’s play” and children have no business engaging in conflict in the ways in which they do.30Nsongurua J. Udombana, ‘War is Not Child’s Play – International Law and the Prohibition of Children’s Involvement in Armed Conflicts’ (2006) 20 Temp Int’l & Comp LJ 57 Children may be recruited forcibly or voluntarily and the line between the two is often blurred. There may be considerable factors which require a child to ‘volunteer’. Those who are forcibly conscripted can be seized from streets, churches, buses, schools or orphanages and this often impacts low-income families, as wealthier ones are able to pay a ransom for their child’s release or are otherwise left unaffected by this phenomenon.31Ibid.
One of the key issues is the lack of harmonisation as to the age at which individuals are considered to be children and their recruitment into the armed forces ought to be banned. The Geneva Conventions do not define a ‘child’ or a ‘minor’ despite including provisions which relate to them, though where age is specified it usually gives protection to children below the age of 15. For example, Article 14 of the Fourth Geneva Convention states that safety zones may protect children under the age of 15, similarly, Article 23 regarding the passage of relief goods for the weakest categories of the population refers to children under the age of 15 as being among those who could potentially receive such consignments. As per the Commentary to the Conventions, fifteen was chosen as a threshold because beyond that age “a child’s faculties have generally reached a stage of development at which there is no longer the same necessity for special measures”.32See Commentary to Article 24, Fourth Geneva Convention, page 185 This changes however when it comes to forced labour, as Article 51 of the Fourth Geneva Convention prohibits forcing children under the age of 18 to work, moreover, the Convention also prohibits the sentencing children under 18 to the death penalty.
We can look to human rights law as it relates to the child for help in defining an age of a child as it more extensively deals with the topic. However, the Convention on the Rights of the Child defines a child as “every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.”33Article 1, Convention on the Rights of the Child Therefore, it leaves it to States to decide at what age a child becomes an adult. It also goes on in Article 38 to prohibit the recruitment and direct participation in hostilities only of children below the age of 15. This is because of the US’ influence during the drafting process wherein it wanted to continue to recruit children above the age of 16 to their armed forces.34Nsongurua J. Udombana, ‘War is Not Child’s Play – International Law and the Prohibition of Children’s Involvement in Armed Conflicts’ (2006) 20 Temp Int’l & Comp LJ 57 Udombana argues that “[i]t is logically untenable and peculiarly intolerable that the age of recruitment into the army should be less than the age of criminal responsibility or the voting age”.35Ibid.
Article 77 of Additional Protocol I applicable to international armed conflicts provides that children under the age of 15 should not take ‘direct part in hostilities’. This has also been criticised by many, including the ICRC, as it excludes indirect participation in hostilities which could also be dangerous for children.36Geraldine Van Bueren, ‘The International Legal Protection of Children in Armed Conflicts’ (1994) 43 Int’l & Comp LQ 809 This was accepted in Additional Protocol II which applies to non-international armed conflicts and which prohibits children under the age of 15 from engaging in any type of participation in civil wars in Article 4(3)(c). The Convention on the Rights of the Child follows the approach of API in placing an obligation on States to ensure that children under 15 do not participate directly in hostilities. Given that indirect participation is also dangerous and in some situations can even be more dangerous for children, it is hoped that this would be broadened for international armed conflicts also and all direct and indirect participation in hostilities of children would be banned, regardless of the categorisation of the conflict.
There are a number of factors which influence whether or not a child will participate in hostilities and take up arms – these range from familial to cultural and include their class, backgrounds, religion and peer groups.37Ibid. Parties to the conflict will often appeal to a child’s loyalty to their communities as a way to encourage them to join the fray. Human Rights Watch has reported that when boys refused to serve the forces in Lebanon, their whole family could be expelled from the neighbourhood.38Ibid. Moreover, their vulnerability given their immaturity also indicates whether they are likely to join the conflict, given their diminished psychological development they are easier to intimidate than adults and are less likely to run away.39Ibid. This lack of development also affects how much fear they feel in battle which makes them a considerable fighting force and because they cannot fully appreciate the consequences of their actions, they are more likely to break the rules of war.40Geraldine Van Bueren, ‘The International Legal Protection of Children in Armed Conflicts’ (1994) 43 Int’l & Comp LQ 809 This even led a Khmer Rouge officer in the war in Cambodia to remark that “[i]t usually takes a little time but eventually the younger ones become the most efficient soldiers of them all.”41Ibid.
Hanson argues against taking a completely protectionist approach to children’s participation in conflicts which strips all agency from them. He states that UN bodies such as the Committee on the Rights of the Child are trapped in an NGO/human rights enabled “all-are-victims”, protectionist discourse which do not account for children’s agency.42Karl Hanson, ‘International Children’s Rights and Armed Conflict’ (2011) 5 Hum Rts & Int’l Legal Discourse 40 He argues instead that their actual experiences should be taken into account before adopting a ‘straight-18’ position with regards to the age of a child. Hanson states that this position does not adequately understand young people’s active agency, the fact that some of them know exactly what they are doing and are willing to fight for the cause they believe in. More importantly, he states that he is not arguing in favour of children being engaged in violent political struggles but does say we need to take these complex perspectives into account in determining the lived realities of children involved in an armed conflict.43Ibid. Van Bueren supports this argument stating that children’s loyalty to a party to the conflict is not always due to cynical manipulation by either side.44Geraldine Van Bueren, ‘The International Legal Protection of Children in Armed Conflicts’ (1994) 43 Int’l & Comp LQ 809 She states that looking at this debate as a conflictual one between participation and protection is far too basic.45Ibid.
In sum, more needs to be done to prohibit the participation of children in hostilities, firstly by doing away with the prohibition of merely direct participation in international armed conflicts and including indirect participation also. Secondly, by engaging with those who work closely with children on the ground to allow for better child soldier rehabilitation and to properly address the reasons why children engage in hostilities in the first place.
The ways in which women and children participate in conflicts and are affected by them are complex and often interrelated to systemic issues that were prevalent before the outbreak of hostilities. As a result, a nuanced approach is necessary to understand the issues that they face and the best ways to address them. In doing so, it is important to strike the right balance between empowerment and protection, and ensuring any intervention is done in a way which acknowledges the agency of those it is dealing with. For women, this may be through a top-down approach where there is more representation and more women in decision making roles, or it may be through grass-roots movements which effect meaningful change. In terms of for children, understanding the reasons why they voluntarily engage with the armed forces or armed groups and whether it may be to try to break out of a generational cycle of poverty, is key to combating the reasons they join in the first place. IHL does provide protections for both of these groups, however, these provisions and the obligations they impose on parties to the conflict can be broadened to ensure better enforcement. For instance, the prohibition of children’s direct participation in international armed conflicts should be broadened to include indirect participation. Similarly, provisions relating to women, as civilians or prisoners of war, must ensure that reproductive and other health issues that women may face are adequately codified in the law. In ensuring these rights, whether they are negative or positive obligations on parties to the conflict, the law provides an umbrella for all those under its protection, and this is especially important for vulnerable groups such as women and children.