International Humanitarian Law (IHL) founded on the concept of jus in bello, strives in regulating armed conflict and aims in protecting non-combatants against belligerents. In situations of armed conflict, there is a complete and ultimate breach of the rule of law whereby the impact on beings is so drastic that it promptly leads to a barbaric behavioural change. Consequently, women and girls are the main target of uncivilised norms in times of war which most commonly take the form of gender-based violence. They notably face manifest violations that are discriminatory and disproportional as to their rights because of their gender and sex.
In parallel, the advancement of IHL rules, has recognised that women are more prone to certain types of violence and as a result designed special laws (lex specialis) for these victims. The scope of prosecution has also, been widened for gender-based crimes. For instance, in Akayesu whereby the ICTR in 1998 set a milestone in adding Rape as an element of genocide and as a Crime Against Humanity. Nevertheless, these IHL Rules, have been subject to various criticisms by different schools of thoughts on whether these laws are adequate in protecting women and/or are properly enforced.
The basis of this analysis will thus evaluate dichotomous feminist critiques of IHL rules from the Revision and Enforcement School of thoughts, in relation to Rape and Sexual violence directed at women during international armed conflicts and evaluate whether they are outdated.
As such, the spearheading IHL rules and provisions surrounding the protection of women in relation to Rape and Sexual violence that shall form the basis of this analysis are firstly, Article 27, paragraph 2 of the Geneva Convention (GC) IV 1949, which states that: “Women must be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any other form of indecent assault.”. Secondly, Article 76(1) of the Additional Protocol (AP) I of the Geneva Conventions, complements this provision by stating that: “Women must be the object of special respect and must be protected in particular against rape, forced prostitution and any other form of indecent assault”.
The Revision School of thought
The first school of thought calls for a reform of the IHL rules and the criticisms made are derived from a mindset that women are dominated by a global patriarchal system since time immemorial. The rules are therefore, interpreted in such a way as to bring to surface the underlying flair of masculinity veiled in those provisions.
For instance, Gardam’s interpretation of the notion of a woman’s honour, in the wording and tenor of the Art.27, is that it is created by men for their own needs and overlooks the perception women have on sexual violence i.e., that Rape affects them both physically and psychologically. Bennoune and Crowe share similar thoughts, as they argue that instead of enunciating the protection of women as to their bodily integrity, it pejoratively connotes the respect owed to women in the conservation of their chastity and modesty. Since, in contrast, the reference to a man’s honour withholds positive attributes such as bravery, strength and independence.
The issue in practice, as to the undesirable prejudice women suffer, has serious implications as it would infer that a woman survivor of Rape in times of armed conflicts, bears the consequences of being dishonored and judge in society as being impure given that Art.27, inextricably draws a correlation between a woman’s honor and her sexuality.
However, Bennoune, distinguishes the drafting of Art.76 as it centers the attention towards human dignity rather than honor.
Although, a very simplistic interpretation of Art.27, could also be that ‘honor’ refers to preserving the value and dignity and women should remain untouched, which humbly draws in the physical aspect of the crime. After all, the fact that there is a lex specialis in the Geneva Convention, irrespective of the wording, demonstrates that there is a special attention given to the need in safeguarding those victims. The aim of Art.27 is strictly to protect women from an objective standpoint.
Thus, an over interpretation and biasness towards the rules not being derived from a gender equal standpoint is erroneous. Since, the level of subjectivity inculcated, not only creates an ambiguity but also has no bearing in the scope of protection accorded.
Additionally, feminists in critiquing the rules, bear in mind that, during armed conflicts, the anarchy that immerses, heightens the instigation of gender-based and sexual violence to the extent that perpetrators are not only the enemies but also the allies. It is a known fact that even UN Peacekeepers have been involved in sexual misconducts as part of their peacekeeping operations. As a matter of fact, Aoi, De Coning and Thakur are, of the view that armed conflicts change the sexual and psychosocial behaviour. As a total collapse in law and order, and the socio-economic factors creates a ‘permissive environment’ since the maintenance of norms disintegrate given the absence of the natural checks and balances system.
Therefore, in analysing the lack of prohibition, feminists are vehemently conscious that the Rape and Sexual violence during those times are significantly more drastic than in times of peace.
Additionally, one other main criticism of Art. 27 and Art. 76, is that they deal only with the protection of women and fail in prohibiting Rape and Sexual violence. Chinkin conveys that they do not “impose a blanket prohibition against sexual abuse but rather oblige States to offer women protection against attacks on their honor and to accord them special respect”. Furthermore, the reasoning follows that, even though both men and women can be raped, women are more vulnerable, and the aftermath is much greater to endure. For instance, as a consequent of being raped, a woman is disposed to unwanted pregnancies, shame and the fear of not being accepted in her community anymore.
Bennoune’s view however, is nuanced from Chinkin, as she believes that Art.27 and Art.76, are scarce in terms of mirroring the violent feature of the crime as it concentrates more on pregnancy and sexual violence instead of patronymically displaying the multi- dimensional impacts of the crime, as also conveyed by Gardam.
However, as the ICRC factually stated, women and men face different menaces during those situations. For instance, men are more likely to be killed on the field whereas women are more prone to sexual violence. Therefore, the reason as to why the rules emphasise the threat to the reproductive features.
Furthermore, Gardam’s view on the lack of prohibitive measures and sanctions of Rape under Art. 27 and Art. 76, is such that it weakens the applicability of the laws. In isolation, Rape and Sexual violence crimes are not serious enough to form part of the definition of “Grave Breaches” under Art.147 of the GC IV. Crowe suggests that this is due to the sentiment of a general indifference.
Nevertheless, Gardam, acknowledges that Rape can amount to the other elements of the definition of “Grave Breaches”. The criticism stems from the fact that Rape amounting to torture for instance, is a question of interpretation as has previously been done by the ICTY in Celebici and in Furundzija for example.
However, in the latter, the tribunal explicitly stated that Rape in time of war is prohibited under the Geneva Conventions and the Additional Protocols. Additionally, it is important to note the intertwining of IHL rules and despite Rape not forming part of the definition of Grave Breaches per se, the ICC Statute has codified Rape and Sexual violence under Art.8(2)(xxii) which out rightly states that “rape…or any form of sexual violence” amounts to a Grave Breach of the Geneva Conventions and under Art. 7(1)(g) as a Crime against Humanity.
The question of interpretation should further be considered, as complementary to the existing rules as they aid in further developing the definition of Rape and Sexual violence. For instance, the Musema case, referred to Furundzija in including “oral penetration” whilst also making use of the definition set forth in Akayesu and stated that rape unmistakably includes oral penetration since, “the essence of rape is not the particular details of the body parts and objects involved, but rather the aggression that is expressed in a sexual manner under conditions of coercion.”
Therefore, these arguments are redundant as they do not holistically take into consideration the other legal regimes, cases or provisions that should be read in conjunction to determine the protection accorded by IHL. Since it is evident, that IHL rules combined with the jurisprudence of the ICC and the Ad-Hoc Tribunals do provide extensive material concerning Rape and Sexual violence. As Copelon states, ““[p]prosecuting rape as a grave breach should effectively expand the meaning of the Conventions and Protocols and obviate the need for formal amendment””.
The Enforcement School of thought
Another school of thought on these IHL rules is that ““[i]f women have to bear so many of the tragic effects of armed conflict, it is not primarily because of any shortcomings in the rules protecting them, but because these rules are all too often not observed””. In essence, this school of thought conveys that the laws themselves are adequate but lack enforcement. As a matter of fact, it holds that men and women should be seen as equals. The ICRC argues that women should not be seen as vulnerable even in times of conflict. The interpretations that this school provides blatantly contrast with those previously mentioned.
In terms of the inherent discrimination criticism by the Revision school, Durham retaliates by stating that, those lex specialis are specifically designed to ensure the survival of women during the harshest times. Therefore, the whole scrutiny from a gender inequality standpoint counteracts the real objective of IHL. Since IHL is not construed to regulate social structure and as a result does not give way for a deeper social analysis. Furthermore, Liesbeth Lijnzaad contributes to this outlook as she is of the view that it is impractical to expect that IHL encompasses all types of gender issues during times of armed conflict when societies in times of peace fail to.
Moreover, as to the view that those IHL rules do not prohibit gender-based crimes, Quénivet counterargues that “protection” in IHL, should be interpreted as prohibition. Since the basis of the GC and the APs are to shield women unconditionally, thus it implies that the prohibition of those crimes forms parts of those rules.
Hence, it is manifestly absurd to consider that the rules disadvantage women, not to mention that none of them deal in as much detail for men. It is evident that, the sub- categorisation of the types of women victims under the GC is purposefully drafted to adequately provide for them in terms of both prohibition and protection as outlined by Quénivet.
An impartial gendered-equality scrutiny on those feminist critiques will indicate that none of them mention the fact that Rape and Sexual violence rules specific to men are virtually inexistent since they are always justified as being universal. Therefore, an overall gender- neutral approach would be to consider the lex specialis for women as a regime to counteract different permutations of issues that can arise rather than those drafted solely based on them being females.
Nevertheless, Durham and O’Byrne, in terms of protection argue that the pragmatic solution to resolve the lack of enforcement is through ‘soft laws’ instead of revising the existing IHL rules namely, the United Nations Security Council 1325 Resolution (Resolution) and the CEDAW.
The adoption of the CEDAW is particularly seen to mend the gaps of gender-based violence between the mainstream human rights treaties. As such, it regularly monitors implementation of the Resolution at State-level. Additionally, General Recommendation No.30, notably, serves as a guide for Member States to carry out their due diligence in relation to women’s rights in situations of armed conflicts.
Furthermore, the Resolution, prominently addresses “…the need to implement fully international humanitarian and human rights law that protects the rights of women and girls during and after conflicts”. Additionally, it emphasises the need to take special measures to protect women from gender-based violence. Therefore, as Cohn conveys, “…1325 puts women squarely in the center of efforts to end armed conflicts and creates sustainable peace.”
However, these supplementary protections even though, in theory strive in detail at practically helping women in those situations, they are also criticised for lacking enforcement. For instance, the Security Council is in fact not a monitoring body and as such, does not have a “mandate, function and means for holding all UN member states accountable to its thematic resolutions”as pointed out by Rourke and Swaine.
Furthermore, in responding to the disparagement on the lack of enforcement the Security Council tends to adopt subsequent resolutions instead of practically solving the issue at hand. As a result, it leads to a reiteration.
The issue with the CEDAW, on the other hand although being a monitoring body, can only be acceded via ratification. The Revision school, in particular, Charlesworth and Chinkin accurately convey that “some states have used the reservation mechanism effectively to hollow out the heart of their formal obligations”. Hence, those reservations are in reality a loophole for States to circumvent their responsibilities and to be held accountable. Therefore, by default the Convention is not only ineffective in terms of monitoring States but evidently unenforceable.
Thus, it is clear that these mechanisms are but illusionary, as even though they emphasise on the specific issues of gender-based violence in armed conflict and the need for States to observe their obligations of women’s rights, they are rhetoric.
Ultimately, both schools share the same values and intentions towards levelling up protection for women in armed conflict. To answer the question of whether these rules are fit for purpose in the 21st Century based on the above analysis, the straightforward answer is in the affirmative. The revision school of thought does demonstrate to some level that the language used is archaic and old-fashioned as it does not resonate with strong, independent women in modern times.
However, the school’s interpretation and implication of women requiring chivalric protection from men has no legal structure and is biased. As analysed, the language has no impact on the numerous scopes of their applications as perpetrators can be held criminally liable and prosecuted as seen via the Ad-Hoc tribunals and the ICC Statute.
In addition, the evolution in the jurisprudence of IHL rules have enabled Rape and Sexual violence, in different situations of armed conflict globally to be scrutinised in depth and have given women the justice deserved at the time needed and progress continues to be made.
The enforcement school of thought has notably, made it clear that the rules are suitable for women in this era. Evidently, in every legal regime the execution of laws is criticised as there is not one system that has ever reached a Utopian level, even less in times of armed conflict.
After all, the aim of IHL rules and the supplementary soft laws, focus on minimising the damage inflicted on women in armed conflicts and enable the issues to be examined through a multi-dimensional lens. Therefore, even though, they are criticized for a lack of enforcement, a flawless system during a time of magnified chaos is simply unrealistic. Thus, women are indeed accorded as much protection as can be provided for in this day and age.