Women’s Rights in Armed Conflicts under International Humanitarian Law
It is widely understood that war exacerbates societal inequalities, leaving marginalised groups more vulnerable than ever. Research suggests that women suffer disproportionately more consequences of war than men and constitute a significant proportion of civilians severely affected by war.1O’rourke, Catherine. Women’s Rights in Armed Conflict under International Law. S.L., Cambridge Univ Press, 2020. International Humanitarian Law (IHL) has sought to provide a comprehensive framework to limit the harms of armed conflict experienced by all who are not, or are no longer, participating in hostilities.2“What Is International Humanitarian Law?” International Committee of the Red Cross, 5 Apr. 2022 In times of conflict, IHL provides women with general protection as civilians, and special protections, which consider that women may be specifically vulnerable to particular kinds of violence.
In this article, I will discuss the general and special protections offered to women under IHL and analyse their effectiveness in protecting women from wartime atrocities. I will further discuss issues with the current provisions and how they may fall short in understanding the complexity of women’s experiences in conflict zones. Lastly, I will consider possible remedies to improve the overall protection offered to women rights in conflict zones under IHL.
Protection of Women's Rights in Armed Conflicts under IHL
The foundation of IHL is the 1949 Geneva Convention and its 1977 Additional Protocols, as well as other international treaties, customary international law, and general law principles. While all provisions are meant to apply to both men and women equally, the first four 1949 Geneva Conventions and their Additional Protocols contain some forty-two articles explicitly dealing with protections afforded to women. Their special protection is mainly concerned with their role as mothers (pregnant mothers, nursing mothers, and mothers with young children) and the need to protect them from sexual violence.
Theoretically, women benefit from all provisions of IHL. The general provision of Geneva Convention Common Article 3 states this fact in the following words:
“Persons taking no active part in hostilities, must in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or similar criteria.”
The four 1949 Geneva Convention and its two 1977 Additional Protocols establish a system of equal treatment where there can be no discrimination amongst civilians, prisoners, displaced persons, special persons, the wounded, the sick, the shipwrecked, or persons liable for punishments. Discrimination based on sex is only permissible if the impact is expected to be favorable. This approach to equality authorizes the rules providing special protections for women under the Geneva Convention and its Additional Protocols.
The system of special provisions for women is based on broad terms that require women to be given special respect and protection. Geneva Convention I Article 12(4) and Geneva Convention II Article 12(4) state that “Women must be treated with all consideration due to their sex”, Additional Protocol I Article 76(1) states that “Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault”, and Geneva Convention III Article 88 states that “Women prisoners of war must be treated with all the regard due to their sex and must in all cases benefit from treatment as favorable as that granted to men”. Standing alone, the words “special respect”, “regard”, and “considerations due to their sex” simply form a statement of principle, a form of request, and not a concrete obligation. They are complemented by somewhat clearer rules for specific purposes.
Protection for Women Prisoners of War
Women prisoners of war and women internees are offered special protections ensuring fair treatment. Geneva Convention III Article 25, Geneva Convention IV Article 76, and Additional Protocol II Article 5(2)(a) call for women prisoners and internees to be afforded separate quarters and to be under the immediate supervision of women. Geneva Convention III Article 14 clearly states that “[women prisoners] must, in all cases, benefit from treatment as favorable as that granted to men”, and Geneva Convention III Article 88 states that “Female prisoners of war may not be sentenced to more severe punishment or be treated more severely when undergoing punishment than female or male members of the detaining power’s forces for a similar offence.” These provisions are essential because they obligate equal treatment of male and female prisoners and require that punishments for women to not be more severe than those given to men for a similar offence.
Protection against Sexual Violence
Women prisoners and detainees are offered special protection in the form of separate quarters and supervision by women as an extension of the broader agenda to protect women from instances of sexual violence. Common Article 3 prohibits violence in the form of outrages against personal dignity, particularly humiliating and degrading treatment. Rape and other forms of sexual violence are violations of personal dignity and degrading to the victim and thus (although not stated directly) sufficiently qualifies as one of the crimes contemplated under Article 3.3Njoroge, Fraciah Muringi. “Evolution of Rape as a War Crime and a Crime against Humanity.” SSRN Electronic Journal, 25 July 2016 Geneva Convention IV Article 27 states, “Women must be especially protected against any attack on their honor, particularly against rape, enforced prostitution, or any form of indecent assault”. Instances of sexual violence are considered “crimes against humanity” under the Rome Statute Article 7 and are “war crimes” under Article 8(2)(b)(xxii) applicable to international armed conflicts and Article 8(2)(e)(vi) applicable to non-international armed conflicts which prohibits the commission of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence which also constitute a serious violation of Common Article 3.
Protection for Mothers (Pregnant Mothers, Nursing Mothers and Mothers of Young Children)
Expecting mothers, mothers of young children, and nursing mothers are especially important to IHL provisions and benefit from the same respect and protection. They are the beneficiaries of several provisions dealing with such matters as early expulsion from prisons, priority in medical care, emergency relief, and uninterrupted provision of food and medical supplies. Amongst the forty-two provisions of the Geneva Conventions and its Additional Protocols dedicated to women, nineteen are meant explicitly for mothers (pregnant mothers, nursing mothers, or mothers with young children). Additional Protocol I Article 70(1) prioritises expecting mothers, nursing mothers, and mothers in labour in receiving relief consignments, including medical items. Geneva Convention IV Article 50 states that “In situations of occupation, the occupying power may not hinder the application of any preferential measures concerning food, medical care, and protection against the effects of war which may have been adopted prior to the occupation in favour of children under fifteen, expectant mothers and mothers of children under seven years of age”. Moreover, Additional Protocol I Article 8(a) defines maternity cases including pregnant mothers and mothers in labour as distinctly falling under the definition of “wounded and sick” and are given protection from any act of hostility aimed towards them. Their protection extends to judicial proceedings where, under Additional Protocol II Article 6(4), the death penalty can not be pronounced on pregnant women or mothers of young children.
It can be argued that provisions appear to provide favourable treatment for women because of the requirement to apply the general rules of IHL without any discrimination and the presence of “special provisions” to provide distinctive support for women’s unique experiences. Overall, the special provisions are designed to either reduce the vulnerabilities of women to sexual violence, prohibit certain types of sexual violence, or protect them as pregnant mothers, nursing mothers, and mothers of young children.
Problems with the Protection Afforded to Women under IHL
IHL provisions are addressed towards the needs of certain male identity in armed conflict, and its male perspective is used as a norm against which equality is measured.4Judith Gail Gardam, and Michelle J Jarvis. Women, Armed Conflict, and International Law. The Hague ; Boston, Kluwer Law International, 2001. The general provisions are drawn up to encompass the experiences of male civilians and male combatants, making women’s experiences standout as exceptions to the rule. A legal model that singles out women for particular treatment arguably relegates them to the category of the inferior “other”.5Ibid. The special protections offered to women are drawn from an assumed image of women based on their perceived weakness, physical and psychological, and their sexual and reproductive functions.6Ibid. They attempt to deal with biological differences between men and women, and form solutions to consequences formed because of these differences. For example, patriarchal societies emphasise a woman’s role as a mother because their reproductive function is necessary for the continuation of male lineage. Protection of mothers is thus essential only to ensure the safety of children. As a result, special provisions for mothers are concerned with the safety of their unborn or young children as opposed to the safety of women themselves. Nearly half of the special provisions for women deal with protections offered to mothers.
Prioritising Women’s “Honour” over their Personal Safety
Special provisions against sexual violence are meant to protect women’s socially constructed attributes of chastity and modesty. They are born out of women’s role to maintain the honour of their male family members, hence making it essential that their honour is protected. For example, Geneva Convention IV Article 27 states “Women must be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any other form of indecent assault.” The words “honor” and “indecent” imply a need to protect the characteristics expected of a woman in relation to someone and not as individuals.
The wider picture shows a problem greater than sidelining women’s perspectives in IHL provisions. The general rules, apart from special provisions that are built on idealistic perceptions of women, assume that men and women have identical needs and that equality of treatment amongst sexes (men and women specifically) can be achieved by prohibiting discrimination based on sex. Essentially, the general provisions, while laying down rules for armed conflict, assume populations where no systematic gender inequality exists. Such an assumption is detrimental, because it fails to recognize the power imbalance between men and women in general society and ignores the social, economic, and political inequality that result in their complex experiences of armed conflict.
Complexities of Women’s Experience in Armed Conflict
Increased Instances of Violence against Women
During armed conflicts, instances of gendered violence increase and continue after the conflict has subsided. Increased tensions in families over reduced standards of living, loss of property, or unemployment can lead to violent encounters between intimate partners. Small arms which are unregulated under IHL become widely available in all countries party to the armed conflict. Violence against women is already prevalent in most societies, but the availability of weapons worsens the situation. Dangerous weapons that are convenient to carry make their way to civilian households leading to an increase in instances of violence against women, especially domestic violence. For example, it was noted that the Boko Haram insurgency in Nigeria showed alarming evidence of increased instances of intimate partner violence due to heightened family tensions and easy access to dangerous weapons.7Eseosa, Uche, et al. Effect of Armed Conflict on Intimate Partner Violence Evidence from the Boko Haram Insurgency in Nigeria. 2020.
Moreover, women’s education opportunities are cut short, and girls are likely to be married young during armed conflicts. Economic and safety constraints lead to quick marriages that often leave little chance for girls to avoid a violent partner. Since their economic opportunities are limited due to their lack of education and early marriages, girls find it difficult to escape partners who are violent and abusive. Such violence against women continues long after conflicts are resolved.
Problems faced by Female Combatants
Over the years militaries around the world have seen an increasing number of women taking part in active combat. Female combatants are meant to benefit from all the general provisions of IHL, but special provisions do not emphasise their unique experiences. IHL provisions assume combatants to be male and address the requirements of a male combatant. It relies on Geneva Convention I and II Article 12 to maintain equality of treatment between sexes in case of exceptions where the combatant is a woman. However, such a provision is not enough to encompass the requirements of female combatants. Women face specific health conditions uncommon to men, such as menstrual irregularities, urinary tract infections, and vaginal infections.8Anne L. Naclerio, ‘Medical Issues for Women Warriors on Deployment’, in Elspeth Cameron Ritchie and Anne L. Naclerio (eds), Women at War, Oxford University Press, 2015, at pp. 49-77, p. 51. Non-availability of clean urination facilities and menstrual hygiene products can become serious medical risks for women in combat environments. The closer women are to the front lines, the less likely it is for them to find first available combat medic who may be trained to treat common women’s health issues.
Low Participation of Women in Leadership and Decision-Making Positions
Women suffer socio-cultural and economic barriers from attaining leadership positions in all levels of decision making in armed conflict. Patriarchal attitudes restrict women’s participation in public space and undermine their contribution as leaders. Societal expectations of domestic care labour often come at the expense of education and work experience necessary to occupy leadership positions. As a result, women occupy less positions in peacebuilding and conflict resolution initiatives.9Udegbe, I. Bola. “Women, Community Leadership and Conflict Transformation in Nigeria.” The Nigerian Journal of Sociology and Anthropology, vol. 8, no. 1, 1 June 2010. IHL does not ensure female participation in positions of power. While provisions regulate the election of prisoner representatives (assuming prisoners of war are predominantly men), no such regulation is maintained to encourage female representatives for the better treatment and rehabilitation of women.10Judith Gail Gardam, and Michelle J Jarvis. Women, Armed Conflict, and International Law. The Hague ; Boston, Kluwer Law International, 2001. Having fewer women in senior military ranks has resulted in a lack of acknowledgement for the struggle of female combatants against sexual violence, poor medical facilities, and lack of maternity care.
Improving Women’s Rights in Armed Conflict under IHL
Including a Gender-Perspective in IHL
Any effort to improve women’s rights in armed conflict must address the fundamental issue with IHL: a lack of gender inclusivity. The general provisions of the 1949 Geneva Conventions and 1977 Additional Protocols assume the standard of a certain male experience and a population without systematic gender-inequality. A gender-inclusive perspective of laws limiting armed conflict must include, in all its provisions, the understanding that armed conflict affects all genders uniquely. General provisions must not be directed only towards an assumed male identity, but also keep in mind women as equally important participants of war. A gender perspective to armed conflict would acknowledge the need for more women in positions of power, an improved definition of vague terms such as “all considerations due to their sex”, the need for better protection of female refugees, and social and economic rehabilitation mechanisms for women in post-conflict situations.
Ensuring Implementation of Existing Laws
An ideal approach towards change includes the development of comprehensive methods to monitor the implementation of IHL by states. An important measure to improve monitoring is the presence of women during data collection and data interpretation. This is necessary because documentation of women’s experiences in conflicts is often conducted by men who fail to include important violations of women’s rights beyond sexual violence.
Improving Women’s Participation in Leadership Positions
Women’s participation in decision making is necessary because women should be included in matters that concern them. The inclusion of gender perspective in conflict resolution and conflict management cannot be initiated without improvement in gender composition of leadership positions. It is not enough to encourage women’s participation; women should be deliberately selected and included in all institutions important to conflict management. This includes reserved positions of seniority in the military, the UN peacekeeping force, committees on conflict resolution, government advisors in crisis situations, local representatives, organisations in charge of medical rehabilitation and food provision.
Over the years, there have been many improvements in the interpretations of IHL provisions to expand its impact and involve as many women under its protective wing as possible.11“Women Protected under International Humanitarian Law.” International Committee of the Red Cross, 29 Oct. 2010. However, there remains a need to acknowledge the underlying factors of discrimination that account for the difficulties faced by women in war. The dismissal of women’s experiences can be traced back to the inadequacies of traditional IHL provisions that failed to consider women’s multi-faceted participation in war beyond that of a helpless victim. Despite the work of institutions like the International Committee of the Red Cross and the International Criminal Court that have expanded on IHL provisions to improve protection offered to women in armed conflict, there remains much to be desired.
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The writer is a senior year student studying economics and politics at LUMS.