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The Neglected Aspect of Women and Armed Conflict-Progressive Development of the Law

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References

  1. See also J. Gardam and M. Jarvis, Women, Armed Conflict and International Law (The Hague, Kluwer Law International 2001) ch. 2 and see also the specialist studies of sexual violence against women in times of armed conflict, e. g., Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, Ms Radhika Coomaraswamy, UN Doc. E/CN.4/1998/54 (26 January 1998); Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, Ms Radhika Coomaraswamy, UN Doc. E/CN.4/2001/73 (January 2001); Final Report of the Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Periods of Armed Conflict, Ms Gay McDougall, UN Doc. E/CN.4/Sub.2/1998/13 (June 1998) and Update to the Final Report of the Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Periods of Armed Conflict, Ms Gay McDougall, UN Doc.E/CN.4/Sub.2/2000/21 (June 2000).

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  2. C. Lindsey, Women Facing War: ICRC Study on the Impact of Armed Conflicton Women (Geneva, ICRC 2001).

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  3. The study also encompasses an evaluation of the relevant international law norms; see further below at n. 41 and accompanying text.

  4. For details of these undertakings see women and war section of the ICRC website at <www.icrc.org/web/eng/siteeng0.nsf/iwpList74/8B4D441BF5F484EA41256E4E00490BB8>.

  5. See Women, Peace and Security, Study Submitted by the Secretary-General Pursuant to Security Council resolution 1325 (2000) (New York, United Nations 2002).

  6. See E. Rehn and E. Johnson Sirleaf, Women, War and Peace: The Independent Experts’ Assessment on the Impact of Armed Conflict on Women and Women’s Role in Peace-building (New York, UNIFEM 2002) p. vii, available at <www.unifem.org/resources/item_detail.php?ProductID=17>.

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  7. Ibid.

  8. The only one of the studies to include girls is that of the Secretary-General. This coverage matches Security Council resolution 1325 which includes girls within its purview. This present article is restricted to women. Many of the experiences of girls reflect those of women. There are many differences however and the situation of girls during times of armed conflict warrants a separate examination. See ICRC study at pp. 34–35 (explaining the restriction of the study to women).

  9. See Gardam and Jarvis, op. cit. n. 1, at ch. 6 and M. Jarvis, ‘An Emerging Gender Perspective on International Crimes’, in G. Boas and W. Schabas, eds, International Criminal Law: Developments in the Case Law of the ICTY (Leiden, Martinus Nijhoff 2003) p. 157. See also V. Oosterveld, ‘Sexual Slavery and the International Criminal Court’, 25 Michigan JIL (2004) p. 605.

  10. Pledge Statement of the ICRC at the 27th International Conference of the Red Cross and Red Crescent, available at <www.icrc.org/Web/Eng/siteeng0.nsf/html/57JQ38>.

  11. ICRC study at p. 33.

  12. Ibid., at p. 212.

  13. Ibid., at p. 33.

  14. For details of the ICRC’s activities see ‘Overview of Operations 2005’, available at <www.icrc.org/web/eng/siteeng0.nsf/iwpList74/FB4EE6333BD39680C1256F5F0051C467>.

  15. For the role of the ICRC, see the Statutes of the International Committee of the Red Cross of 24th June 1998, reprinted in 324 IRRC (1998) p. 537.

  16. See ICRC study at p. 87.

  17. Ibid., at p. 64.

  18. See Secretary-General’s study at p. 1.

  19. Ibid., at p. 4 (for an explanation of ‘gender mainstreaming’).

  20. Ibid., at p. 25.

  21. Ibid., at p. 5.

  22. UNIFEM study at pp. 3, 5.

  23. Ibid., at pp. 6–7.

  24. The UNIFEM study, however, considers in detail the HIV/AIDS consequences of armed conflict for women and also the impact of the media and communications in stereotyping women’s experiences of armed conflict.

  25. UNIFEM study at p. viii.

  26. Ibid., at p. 2.

  27. ‘Women and War’, March 2003, available at <www.icrc.org/Web/Eng/siteeng0.nsf/html/women>.

  28. Available at <www.icrc.org/Web/eng/siteeng0.nsf/htmlall/p0840>.

  29. A comprehensive coverage of the follow up to resolution 1325 is available at <www.peacewomen.org> and see in particular ‘Working Towards Implementation of 1325: Who’s Who in the United Nations System: A working Document’, available at <www.peacewomen.org/un/UN1325/1325whoswho.html>.

  30. See Statement by Carolyn Hannan, Director, Division on the Advancement of Women, Department of Economic and Social Affairs, ‘Affirmative Action and Security Council resolution 1325 (2000): CEDAW General Recommendation 25 and women’s participation in conflict prevention and conflict resolution’, available at <www.un.org/womenwatch/daw/news/speech2004/CH-SC1325-GenevaApr04.pdf>.

  31. Questions of Integrating the Rights of Women into the Human Rights Mechanisms of the United Nations and the Elimination of Violence Against Women, UNESCOR, Commission on Human Rights, 50th Sess., UN Doc. E/CN/.4/RES/1994/45 (1994). The mandate of the Special Rapporteur was extended for a further three-year period in 1997. See Commission on Human Rights Res., 1997/44 (1997). See also Final Report of the Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Periods of Armed Conflict, Ms Gay McDougall, UN Doc. E/CN.4/Sub.2/1998/13 (June 1998) and Update to the Final Report of the Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Periods of Armed Conflict, Ms Gay McDougall, UN Doc.E/CN.4/Sub.2/2000/21(June 2000).

  32. Preliminary Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, Ms Radhika Coomaraswamy, UN Doc. E/CN.4/1995/42 (November 1994) para. 7.

  33. Ibid., at para. 310(c), (d).

  34. Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, Ms Radhika Coomaraswamy, UN Doc. E/CN.4/1998/54 (26 January 1998) para. 1.

  35. Ibid., at para. 22.

  36. Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, Ms Radhika Coomaraswamy, UN Doc. E/CN.4/2001/73 (January 2001) paras. 18, 19, 66.

  37. Integration of the Human Rights of Women and the Gender Perspective, UN Doc. E/CN.4/2003/75 (6 January 2003).

  38. Fourth World Conference on Women, Action for Equality Development and Peace, Beijing Declaration and Platform for Action, UN Doc. A/Conf.177/20 (1995) (hereafter Beijing Platform for Action).

  39. Beijing Platform for Action, Strategic Objective E 3.

  40. See Unedited Final Outcome document, ‘Further Actions and Initiatives to Implement the Beijing Declaration and Platform for Action’, 10 June 2000, para. 12.

  41. See ICRC study at p. 17.

  42. ICRC study at p. 33.

  43. See ‘Advancement of Women and Implementation of the Outcome of the Fourth World Conference on Women’, statement by the ICRC to the UN General Assembly, 53rd Session, Third Committee (15 October 1998), available at <www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/31432F486A1CE776C1256B66005C2DDA>.

  44. ICRC study at p. 213.

  45. Ibid., at p. 214.

  46. ‘Women and War’, supra n. 27, at p. 16.

  47. See e.g., speech of Gabrielle Nanchen, Assembly member of the ICRC, to the 49th Session of the UN Commission on the Status of Women, New York 7 March 2005, available at <www.icrc.org/Web/Eng/siteeng0.nsf/html/6A6FKK>.

  48. For a clear statement on gender and how the organisation approaches this issue from the current head of the Women and War project, see ‘Gender in Practice: the Humanitarian Perspective’, EU Conference on Women in Conflict Situations and Peacekeeping, 9–10 December 2004:‘the ICRC uses a gender analysis (to understand roles of men and women and how they are interrelated for example with regard to access of resources) without adopting a gender policy (which would be to change these roles or to remove the socio-cultural conditions that give rise to gender’) (copy on file with the author).

  49. Ibid., at p. 35.

  50. Idem.

  51. ICRC study at p. 36.

  52. Ibid., at p. 21.

  53. See Gardam and Jarvis, op. cit. n. 1, at pp. 108–110 (for an analysis of the concept of honour in IHL).

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  54. ICRC study at p. 57.

  55. See ICRC study at p. 212.

  56. See speech of Gabrielle Nanchen, Assembly member of the ICRC, to the 49th Session of the UN Commission on the Status of Women, supra n. 47.

  57. Secretary-General’s study at p. 33.

  58. Ibid., at p. 49.

  59. See ch. II ‘Impact of Armed Conflicton Women and Girls’, Secretary-General’s study at pp. 13–32.

  60. Secretary-General’s study at p. 14.

  61. Ibid., at pp. 22–25.

  62. See, e.g., Secretary-General’s study at pp. 65–73 (discussing the socio-economic dimensions to armed conflict for women).

  63. UNIFEM study at p. ix.

  64. UNIFEM study at p. 17.

  65. See Secretary-General’s study at pp. 36–38 and see also ICRC study at pp. 22–23.

  66. See, e.g., T. Meron, ‘The Humanization of Humanitarian Law, 94 AJIL (2000) p. 238; K. Watkins, ‘Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Conflict’, 98 AJIL (2004) p. 1 and see generally, R. Provost, International Humanitarian and Human Rights Law (Cambridge, Cambridge University Press 2003).

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  68. See T. Meron, Human Rights in Internal Strife: Their International Protection (Cambridge, Grotius 1987).

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  69. Ibid., at pp. 2–70.

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  70. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of non-international Armed Conflicts, adopted in 1977 (Protocol II), 16 ILM (1977) p. 1442, applies to armed conflicts‘that take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’. The Protocol expressly does not apply to ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature, as not being armed conflicts’. Art. 1, Protocol II.

  71. See C. Greenwood, ‘Scope of Application of Humanitarian Law’, in D. Fleck, ed., The Handbook of Humanitarian Law in Armed Conflicts (Oxford, Oxford University Press 1995) p. 102. Although there is nowadays evidence of the extra territorial operation of human rights, the point remains that the relationship in that regime is between an individual and a state not one between states, as is the case with IHL.

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  72. The non-derogable human rights include the right to life; freedom from torture and other inhuman or degrading treatment or punishment; freedom from slavery; and the non-retroactivity of penal laws. See R. Vinuesa, ‘Interface, Correspondence and Convergence of Human Rights and International Humanitarian Law’, 1 Yearbook of International Humanitarian Law (1998) p. 69 at pp. 87–90 (for a discussion of non-derogable human rights). See also General Comment No. 29, ‘States of Emergency (Art. 4)’, CCPR/C/21/Rev.1/Add.11 (August 2001).

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  73. See the discussion of this issue in the context of the right to life by the International Court of Justice in the Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. (1996) p. 226 (General Assembly Opinion). See, however, the criticism of the Court’s treatment of the relationship between human rights and IHL in V. Gowlland-Debbas, ‘The Right to Life and Genocide: The Court and an International Public Policy’, in L. Boisson de Chazournes and P. Sands, eds., International Law and the International Court of Justice and Nuclear Weapons (Cambridge, Cambridge University Press 1999) p. 315.

  74. See Provost, op. cit. n. 66, at pp. 16 and 344 (‘... a breakdown of order and institutions make it futile to confer rights on individuals upon which they will be unable to act’).

  75. See the International Fact Finding Commission provided for in Art. 90 of the Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, adopted in 1977 (Protocol I), 16 ILM (1977) p. 1391.

  76. See, e.g., ICRC study at pp. 106, 109, 116.

  77. Secretary-General’s study at p. 36.

  78. See, e.g., Common Art. 3 to the Four Geneva Conventions; Art. 12, Second Geneva Convention; Art. 32, Fourth Geneva Convention; Art. 75, Protocol I.

  79. See Secretary-General’s study at p. 37.

  80. See Secretary-General’s study at p. 36.

  81. See, e.g., the discussion of the control of extra judicial killing under the human rights framework in Watkins, loc. cit. n. 66, at pp. 17–22.

  82. G. Best, War and Law Since 1945 (Oxford, Clarendon Press 1994) p. 144.

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  83. See, e.g., the response to the ICRC Study on Customary International Law released on 15 March 2005 by D. Rivkin Jr & Lee A. Casey, ‘A Red Cross Double Cross’, Wall Street Journal, 12 April 2005, p. 10.

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  84. See ICRC, ‘Overview of Operations 2003’, p. 2, available at <www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5GVEKF/$File/OVER2003_bkmk.pdf>. See also ‘Overview of Operations 2005’, supra n. 14.

  85. See ‘Overview of Operations 2003’, ibid.

  86. For a detailed discussion of the various options for law reform and a draft ‘soft law’ instrument that could serve as a precedent for further developments in this area, see J. Gardam and M. Jarvis, ‘The Protection of Women in Armed Conflict the International Response to the Beijing Platform for Action’, 31 Columbia Human Rights Law Review (2000) p. 1.

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  87. See ICRC study at pp. 78–79.

  88. See ibid., at pp. 81–82 for a description of the obligations imposed by IHL in relation to the provision of humanitarian provisions.

  89. See ibid., at pp. 82–83 for a description of the special provisions of IHL in relation to these classes of women.

  90. See UNIFEM study at p. 11.

  91. Ibid., at p. 17.

  92. See Prosecutor v. Djukic, Indictment, Case No. IT-96-20 and Prosecutor v. Blaskic, Case No. IT-95-14, Judgment (3 March 2000) and see generally, W. Fenrick, ‘Attacking the Enemy Civilian as a Punishable Offence’, 72 Duke JCIL (1997) p. 539.

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Gardam, J. The Neglected Aspect of Women and Armed Conflict-Progressive Development of the Law. Neth Int Law Rev 52, 197–220 (2005). https://doi.org/10.1017/S0165070X0500197X

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Keywords

  • Sexual Violence
  • Security Council
  • Legal Regime
  • Geneva Convention
  • Security Council Resolution