In their comprehensive analysis of the effectiveness of International Humanitarian Law (IHL) in addressing women’s needs in armed conflict, Judith Gardam and Michelle Jarvis claim no less than the fact that “IHL (…) has failed women” (p. 18). Outlining the experience of women in war, comparing these with the provisions provided to protect them in IHL, and looking for reasons for the silence of the law with regards to the actual experiences of women in conflict, they come to a puzzling conclusion. Precisely, the authors argue that as the existing legal framework of jus in bello is based on formal gender equality while profound inequalities between men and women are the reality in all societies worldwide, the system fails to firstly, recognize the differential impact armed conflict has on both sexes, and secondly, to provide adequate protection according to these differences. As a consequence, the current legal framework of IHL in fact further exacerbates already given inequalities and causes new forms of gender discrimination which in turn leads the authors to call for a profound re-examination of IHL, the prosecution of its violators, and the redress provided to their female victims.
By disregarding the unequal status of women vis-à-vis men, the system of IHL thus reflects a solely male perspective on armed conflict, the authors claim. Not only is IHL a mirror of the existing gender inequalities present at the time of the development of the Geneva Conventions and Additional Protocols, injecting the legal system with a stereotypical chivalric view on women characteristic of its time, but it also continues to uphold a rigid, unrealistic conception of women to this day. Precisely, the “woman of IHL” (p. 95) is primarily conceived of in terms of her “perceived weakness, both physical and psychological” as well as her “sexual and reproductive functions”. Apart from protection provided to women as (expectant) mothers and sexual beings, IHL does not provide sufficient provisions covering the various other aspects of women’s identities, which can come under attack during times of armed conflict. The incorporation of the topic of wartime sexual violence into the statutes and work of the ICTY, ICTR and ICC can serve as an example here. While the definition of sexual violence in conflict as a potential crime against humanity, war crime or crime of genocide is judged as a very welcome development by the authors, it has once again contributed to the overshadowing of the various other ways in which women are disproportionately affected by armed conflict.
The analysis provided by Gardam and Jarvis provides a contribution of paramount importance to the academic debate surrounding the system of IHL, which still today remains a largely male domain and has nonetheless gone unchallenged for long. Employing a variety of concrete examples, the authors truly manage to convince the reader of the necessity to reform the current system of IHL so as to incorporate a view on women as “individuals in their own right” (p. 112), rather than attributes to the communities they live in. The regime of special provisions for the protection of women in IHL is indicative here, as it provides a particularly strong depiction of the male view on women and their experience of armed conflict incorporated in IHL.
While there are forty-two provisions contained in the four Geneva Conventions and the Additional Protocols specifically dealing with the impact of armed conflict on women, nineteen of these concern women as “expectant mothers”, “maternity cases”, or “nursing mothers” (p. 96). As Article 70(1) of Additional Protocol 1 outlines for instance, relief actions shall accord the former with privileged treatment or special protection. At the same time, the rationale behind such provisions is not so much the protection of the mother as an individual with distinct needs, but the protection of the (unborn) child, for which the protection of the mother is merely instrumental, the authors maintain. Thus, as the commentary to the Protocol reveals, the category of nursing mothers was added to this provision following a delegate’s intervention that “babies needed food, and if mothers were to feed them, they too had to be fed” (p. 97).
The rest of the provisions concerning women deal with the prohibition of sexual violence, which is often “couched in terms of the honour of women”(p. 97), in turn defined by chastity and modesty. Rape and other sexual crimes, rather than being identified as violations of an individual’s inalienable human rights, are hence rather understood as actions harming the value a woman has for a man. Additionally, these specific provisions are often phrased in a language of protection rather than prohibition found in offenses solely involving men, and are often formulated imprecisely, making them rank low in a hierarchy of norms implicit in IHL (p. 100).
Consequently, it is included in IHL that women only need special protection in armed conflict with regards to their identities as mothers and sexual beings, while in every other aspect, protections should be provided “without any adverse distinction founded on sex“.As the authors rightly point out, this assumption disregards the various other ways in which women are disproportionately affected by war. Due to their traditional position in conflict as civilians they build up a large percentage of the refugee and internally displaced populations who often find themselves in camps ran by men, who often neglect the sanitary needs of women, implement unequal food distribution and even sexually assault women themselves (p. 32). Furthermore, the various forms of (domestic) violence against women acted out during peacetime are amplified with the breakdown of the regular state and policing apparatus apparent during conflict, making women yet more prone to become victimized not only by the opponent, but by men of the warring party they belong to (p. 25). Additionally, the economic impact of conflict on women is often precarious, as they frequently lose their husbands and other family members. This leaves them with the double burden of having to take care of the family and secure financial wellbeing while often being ostracized in their communities (p. 39).
As the authors explain, the lack of provisions dealing with these kinds of victimizations stems from a prioritization of IHL of the male combatant over the female civilian. For example, while the conditions under which prisoners of war, which are more likely to be male, are to be treated are highly regulated, there are no such regulations to be found with regards to the conditions in refugee camps (p. 103).
Gardham and Jarvis are thus right in pointing out that the distinct risks of victimization for women described above, including those by the men of the same warring party, are not adequately addressed by the current system of IHL. Precisely, they make the ‘artificial’ distinction between jus in bello and jus post bellum partly responsible for these shortfalls. As the authors claim: “…the boundaries of IHL themselves represent an additional hierarchy with specific implications for women. IHL does not address the humanitarian problems of the aftermath of conflict, when the needs of women are particularly marked“ (p. 252). Importantly, Gardham and Jarvis thus point to a crucial question: Can and should IHL have gendered equality of outcome as its aim and can it thus be made responsible for regulating social post-war structures?
As many have argued, such normative ambitions are far beyond the legal framework IHL can provide. According to Durham (2002), it is the strict mandate limited to securing the survival of as many people as possible during times of armed conflicts and its abstention from tackling the basis of social structures, which makes it meaningful. According to this author, analysing and evaluating the social norms which give rise to certain gender conceptions would lead the system of IHL into “a quagmire of moral and ethical argument which would render its rules useless” (p. 658). To take this step would compromise IHL’ s initial purpose to provide a set of rules on the conduct of war independent of its wider context, causes and consequences.
While there is much value to be found in Durham’s argument, it should be noted, however, that law can in fact be regarded as morality. As Emile Durkheim (1893) suggests, law is indeed the reflection of a society’s collective morality, which is anchored in solidarity. By codifying the rules of social interactions into laws, solidarity becomes institutionalized in a society. Consequently, law is the element, which binds individuals to one another and thus achieves social cohesion as a practical outcome (Cotterel, 1999). If one considers this definition of law for a moment and transfers it to the system of IHL, the claim of it producing a society founded on some notion of social equality does not seem so far fetched anymore. If law were codified solidarity which produces social cohesion, it would appear that it should address notions of inequality at least to some extent in order to remain a legitimate system guiding social interactions. Otherwise, social cohesion could hardly be granted. Hence, if IHL were to remain a system regulating the conduct of hostilities respected by the international community in its entirety, including the female part whose needs are often insufficiently addressed by this very system, it should aim for gender equality of outcome so as to continue upholding social cohesion worldwide.
While important arguments for the strict separation of jus in bello and jus post bellum might prevail, using a Durkheimian framework helps to outline the importance of the question Gardham and Jarvis are raising. Additionally, this framework helps to reveal that if we understand law as a system producing social cohesion, it does not seem absurd at all to call for a kind of IHL, which addresses social post-war structures with respect to gender equality.
The question of how realistic Gardham and Jarvis’ call to reform IHL so as to address gender equality of outcome is remains, however, yet another one. In the final part of the book, the authors propose two different scenarios considering the way forward for IHL so as to better address the needs of women. In a “Utopian vision” (p. 254), they suggest an integration of human rights law and IHL. This integration would not only impose more obligations on non-state actors during conflict and set up a system of scrutiny of states’ behaviour in conflict much like the Universal Periodic Review mechanism in the human rights system, but also decrease the currently strong influence of the military in implementing and further developing IHL and recognize the distinct ways in which women suffer not only during, butafter conflict.
As outlined in the “Pragmatic Vision” (p. 256), a more realistic starting point may, among other factors, be the integration of women into all levels of decision-making regarding the domain of IHL, including in the ranks of the ICRC – which has to date largely left this question unaddressed (Durham, 2001) – and a substantive review of the Geneva Convention, Additional Protocols and commentaries thereof. It would however not suffice here to merely integrate Caucasian women into these posts – an argument, which the authors fail reiterate at this point. As they have demonstrated elsewhere in the book, the “woman of IHL” is mostly white. Illustrated among other indicators by the lack of public outcry and relative attention of the ICTR regarding the issue of rape in the conflict in Rwanda, the authors have argued that “sexual violence against black African women by black African men is perceived by the international community“ as comparatively less crucial than rape of white women by white men, as was the case in the conflict in Bosnia, which received comparatively more attention (p. 155).
In spite of this minor shortfall, Gardham and Jarvis’ analysis does not only provide a substantive overview about the ways in which women are affected by conflict which remain unaddressed by IHL. It has indeed managed to raise an important question regarding the future development of the relationship between jus in bello and jus post bellum with regards to gender, and provided considerable propositions as to how to achieve this. Overall, this makes it a crucial addition to the IHL literature.
Theresa Bergmann (Sciences Po)
The lack of a formal requirement for gender balance in the ICRC, the ICTR and ICTY as well as the overwhelming majority of male IHL scholars can serve as an illustration here (Gardham & Jarvis, 2001).
As Durham & O’Byrne (2010) point out, substantive feminist critiques of IHL have only really arisen during the last decade.
Geneva Convention I, art. 12; Geneva Convention II, art. 12; Geneva Convention III, art. 16; Geneva Convention IV, art. 27; Additional Protocol I, art. 75; Additional Protocol II, art. 4 (Durham & O’Byrne, 2010, p. 38)
Cotterrell, R. (1999). Émile Durkheim: Law in a Moral Domain. Stanford University Press: Stanford, California.
Durham, H. & O’Byrne, K. (2010). The dialogue of difference: gender perspectives on international humanitarian law. International Review of the Red Cross, 92(877), 31-52.
Durham, H. (2002). Women, Armed Conflict and International Law. International Review of the Red Cross,91(847).
Durkheim, E. (1893). The Division of Labour in Society. The Free Press: New York.
Gardham, J. G. & Jarvis, M. J. (2001). Women, Armed Conflict and International Law. Kluver Law International: The Hague.