The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Women

In times of conflict, international humanitarian law gives women both general protection, as civilians, and special protection, which takes into account the fact that women may be particularly vulnerable to certain kinds of violence. This need for special protection focuses in particular on women’s needs as mothers and on the necessity to protect them more specifically from sexual violence.

At other times, including during internal disturbances and tensions, women’s rights are protected under international law by various conventions, starting with human rights conventions, which strive to guarantee equal rights for women by prohibiting all forms of adverse discrimination (including on the basis of sex), and set up mechanisms to monitor and condemn such acts. The one aimed specifically at defending women’s rights is the 1979 Convention on the Elimination of All Forms of Discrimination against Women, which had 189 States Parties as of June 2015.

Rape, enforced prostitution, and any form of indecent assault are forbidden under international humanitarian law in both international and internal conflicts (GCIV Art. 27, API Art. 76.1, and APII Art. 4.2.e). Nevertheless, rape has become truly accepted as a grave breach of humanitarian law only in recent years—in particular, since its massive occurrence during the conflicts in the former Yugoslavia and in Rwanda between 1991 and 1995. The two ad hoc International Criminal Tribunals set up to judge serious crimes committed in these conflicts have specifically qualified rape and other acts of sexual violence committed in the former Yugoslavia and in Rwanda as war crimes and crimes against humanity. In the International Criminal Tribunal for Rwanda, rape is explicitly cited as a grave breach of the 1949 Geneva Conventions, which are extended to include situations of non-international armed conflict.

In 1995, the Beijing Declaration and Platform for Action reinforced the obligation of governments to pursue and punish perpetrators of rape and other forms of sexual violence against women and girls in situations of conflict, and to define such acts as war crimes.

The Statute of the International Criminal Court was adopted on 17 July 1998. It includes rape, sexual slavery, enforced prostitution, forced pregnancy (defined in Art. 7.2.f of ICC Statute), enforced sterilization, and any other form of sexual violence of comparable gravity in its definition of both crimes against humanity and war crimes over which it has jurisdiction, in both international and non-international armed conflicts (Arts. 7.1.g, 8.2.b.xxii, and 8.2.e.vi of ICC Statute).

International Criminal CourtInternational Criminal TribunalsRapeWar crimes/Crimes against humanity

General Protection

In times of armed conflict, women are entitled to the guarantees that must be granted to all protected persons—namely, the respect for their person, honor, family rights, and religious convictions and practices, as well as the right to humane treatment at all times and to protection from all acts of violence or threats thereof. In addition to these rights, humanitarian law states that “women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault” (GCIV Art. 27, API Art. 76.1). The rights granted to women in international and non-international armed conflicts have gained customary law status. Rule 134 of the ICRC customary IHL study recalls that “the specific protection, health and assistance needs of women affected by armed conflict must be respected.” ▸ Protected persons

At all times, whether during armed conflict or not, women—and all protected persons— must be protected from “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture . . . , outrages on personal dignity, in particular humiliating and degrading treatment” (GCI–IV Common Art. 3.1). ▸ Fundamental guaranteesTorture

As mentioned, women are also protected by the non-adverse discrimination clauses that exist in most international human rights conventions. For instance, the Statute of the International Criminal Court (ICC), adopted on 17 July 1998, states that “the application and interpretation of law . . . must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender” (Art. 21 of ICC Statute). ▸ Discrimination

Furthermore, the ICC Statute defines persecution on the basis of gender (among other grounds) as a crime against humanity (Art. 7.1.h of ICC Statute). ▸ Ill treatmentPersecutionWell-being

The Protection of Women in Times of Conflict: The Geneva Conventions and Their Protocols

In addition to the general protection described earlier, the Geneva Conventions set forth specific provisions for the protection of women.

Pregnant Women and Maternity Cases

Pregnant women and women in labor come under the category of “wounded persons” and hence benefit from the same “particular protection and respect” to which the wounded and sick are entitled under humanitarian law (GCIV Art. 16, API Art. 8). ▸ Wounded and sick persons

  • Parties to a conflict must endeavor to evacuate expectant mothers to hospitals or safety zones and out of besieged and encircled areas (GCIV Arts. 14, 16, 17, 21, and 22). Whether or not they are evacuated, they must receive the necessary aid: States are under the obligation to “permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases” (GCIV Art. 23).
  • In case pregnant women and mothers of children under seven—as well as children under fifteen—find themselves on the territory of a party to the conflict of which they are not nationals, they must benefit from any preferential treatment that is granted to the women and children who are nationals of the State concerned (GCIV Art. 38.5).
  • An occupying power may not hinder the application of preferential measures in favor of women and children that were adopted prior to its occupation (GCIV Art. 50).

EvacuationOccupied territory

Civilian Internees and Prisoners of War

  • “Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men” (GCIII Art. 14 and also Arts. 16, 49, and 88; GCI–III Art. 12).
  • A woman prisoner of war shall not be sentenced to punishment more severe or undergo punishment in worse conditions than a woman member of the armed forces of the detaining power punished for a similar offense (GCIII Art. 88).
  • Women must be held or confined in quarters separate from men (except for civilian internees who are accommodated with their families) and under the immediate supervision of women (GCIII Arts. 25, 97, and 108; GCIV Arts. 76, 85, and 124).
  • “Expectant and nursing mothers and children under fifteen years of age shall be given additional food, in proportion to their physiological needs” (GCIV Art. 89). They must also receive treatment and care that must not be inferior to that provided for the general population (GCIV Art. 91). Additional Protocol I to the Geneva Conventions further states that “pregnant women and mothers having dependent infants who are arrested, detained or interned for reasons related to the armed conflict, shall have their cases considered with the utmost priority” (API Art. 76.2).
  • A woman internee may be searched only by a woman (GCIV Art. 97).
  • Disciplinary punishment must take into account the internee’s age, sex, and state of health (GCIV Art. 119).
  • Parties to a conflict must try to reach an agreement for the release, repatriation, or return, or the accommodation in a neutral country, of certain internees, in particular children, pregnant women, and mothers with infants and young children (GCIV Art. 132).

DetentionInternmentPrisoners of war

Judicial Guarantees and the Death Penalty

In times of armed conflict, women benefit from the same judicial guarantees as other protected persons. Furthermore, the death penalty may not be carried out against pregnant women or mothers of young or dependent children (API Art. 76.3, APII Art. 6.4).

Noninternational Armed Conflict

During non-international conflicts, the specific clauses that apply to women, under the 1977 Additional Protocol II to the Geneva Conventions, are as follows:

  • The protection of all fundamental guarantees, including “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture . . . , outrages on personal dignity, in particular humiliating and degrading treatment” (GCI–IV Common Art. 3.1, APII Art. 4) and “rape, enforced prostitution, and any form of indecent assault” (APII Art. 4.2.e).
  • Women must be held in quarters separate from those of men and be under direct supervision of women, except when accommodated with their family (APII Art. 5.2.a).
  • The death penalty shall not be pronounced on pregnant women or mothers of young children (APII Art. 6.4).

Refugees

The increased attention and recognition given to crimes such as rape, to which women are more particularly vulnerable, have led to specific measures being taken in the case of women refugees. The UNHCR Executive Committee issued several conclusions addressing the need to provide reinforced protection for women refugees, both legally (in terms of including sexual violence among the main grounds for persecution, which will help enable women fleeing persecution to receive refugee status) and in practice, once they have reached a destination. It thus acknowledges and adapts assistance to the fact that “refugees and asylum-seekers, including children, in many instances have been subjected to rape or other forms of sexual violence during their flight or following their arrival” (UNHCR ExCom Conclusion 73 [XLIV], 1993).

In the case of repatriation, UNHCR representatives must make sure that they do not speak only to the refugees’ representatives when deciding whether a group wants to return to their home State. They must consult the refugees themselves, and in particular groups of women refugees, to verify that the leaders genuinely represent the will and interests of the refugees as a whole.

RefugeesRepatriation

Protection of Women in Times of Peace or Tension

In times other than armed conflicts (either peace or internal disturbances and tensions), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW—adopted by the UN General Assembly on 18 December 1979 and entered into force on 3 September 1981) establishes the provisions that States must implement to protect women against the negative effects of discrimination. The Convention currently has 189 participating States, which commit to “pursue by all appropriate means and without delay a policy of eliminating discrimination against women” (Art. 2 of CEDAW).

States therefore undertake to establish legislative provisions to prevent, prohibit, or punish any acts, customs, or regulations that discriminate against women. This includes the obligations to embody the principle of equality between men and women into national constitutions and to adopt appropriate legislative and other measures to ensure the practical implementation of this principle, including sanctions to punish discrimination against women.

The articles in the Convention specify that appropriate measures must be adopted, laws adapted, or social and cultural patterns modified, so as to prevent trafficking of women and girls and to ensure equality in terms of men and women’s rights to political participation, nationality, education, employment, health care and other social benefits, due process before the law, and marriage and family relations.

Attempts have been made to identify a more comprehensive set of rights and protections to which women are specifically entitled. In 1993, the UN General Assembly adopted the Declaration on the Elimination of Violence against Women (Resolution 48/104, 20 December 1993), which notes that “women in situations of armed conflict are especially vulnerable to violence.” Though adopted by consensus, this is not a binding treaty under international law. Relief organizations may, however, use it as a frame of reference for their operations.

The Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, adopted by the Organization of American States (OAS) in June 1994, directly addresses violence against women. It has thirty-two States Parties as of April 2013. Specific duties of States are enumerated, including to “pursue, by all appropriate means and without delay, policies to prevent, punish and eradicate such violence” (Art. 7) and to adopt the necessary domestic legal procedures to investigate and punish such crimes.

At the regional level, the African Union also adopted, in 2003, the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa. This document, known as the “Maputo Protocol,” entered into force on 25 November 2005 and binds thirty-six States as of April 2013. It spells out principles and obligations for States Parties, notably the obligation to protect women in armed conflicts and to adopt measures to eliminate discrimination against women, by inscribing into their national legislation the principle of gender equality. The Protocol guarantees comprehensive rights for women, including the right to participate in the political life and the decision-making process, the right to health, and the right to control fertility. It prohibits female genital mutilation, forced marriages, and sexual exploitation and fixes the age for women to marry at eighteen. Besides, it urges States to authorize medically assisted abortion for women who have been raped or in case of incest. To date, there is no mechanism that allows individuals to file a complaint against a State that would have violated a provision of the Protocol, whose application is overseen by the African Union Commission.

Human rights conventions apply to every individual—women as well as men—and protect them as equal human beings. This is particularly important because these conventions provide a core set of rights against which States cannot derogate, no matter what the circumstances are. These inalienable human rights and fundamental guarantees remain applicable at all times, including times of armed conflict. ▸ Fundamental guarantees

Recourses Available in Case of Violations of Women’s Rights

Individual Recourse

According to Articles 17 to 22 of CEDAW, a Committee on the Elimination of Discrimination against Women was created. It is made up of twenty-three experts who monitor and make recommendations concerning the implementation of CEDAW. The participant States must submit reports at least every four years on the legislative, judicial, and other measures they have taken to incorporate the provisions of the Convention into their laws. ▸ Committee on the Elimination of Discrimination against Women

On 6 October 1999, the UN General Assembly, acting without a vote, adopted a twenty-one-article Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, drafted with the collaboration of the Committee on the Elimination of Discrimination against Women and the UN Commission on the Status of Women. The Optional Protocol entered into force on 22 December 2000, following the ratification of the tenth State party to the Convention. As of June 2015, 106 States have ratified it.

When a State ratifies the Optional Protocol, it recognizes the competence of the Committee on the Elimination of Discrimination against Women to receive and consider complaints from individuals or groups within its jurisdiction. There are two possible procedures: consider petitions from individual women or groups of women who have exhausted all national remedies; or the Committee itself can initiate inquiries into situations of grave or systematic violations, although States may opt out of the inquiry procedure. No other reservations are permitted to the Protocol’s terms.

Until the Protocol came into force—and still today in most countries—the only international recourse that existed to file individual complaints specifically concerning violations of women’s rights was through the Commission on the Status of Women, a UN body established by the Economic and Social Council (ECOSOC) in 1946. Today, its function is to monitor and review the implementation of the Nairobi Forward-Looking Strategies for the Advancement of Women, adopted in 1985 at the third UN World Conference on Women. This includes developing recommendations on urgent problems concerning women’s rights.

The Commission may receive communications from individuals and groups; however, it takes no action based on individual complaints. Its aim is to develop policy recommendations to try to solve widespread problems. Women can, for example, refer to international bodies that allow individual complaints, such as the Human Rights Committee, the Committee against Torture, and more.

Women may also have recourse before the Human Rights Committee, which monitors the implementation of the 1966 International Covenant on Civil and Political Rights (ICCPR) and can receive individuals’ complaints, including violations of the gender equality provisions of the ICCPR. This procedure is available to individuals in the countries that have ratified the Optional Protocol to the ICCPR. Women in these countries can file complaints concerning violations of the provisions of the ICCPR, as well as of the International Covenant on Economic, Social, and Cultural Rights and other international human rights conventions to which their country is a party. ▸ Human Rights CommitteeIndividual recourse

UN Special Rapporteurs

Several UN Special Rapporteurs cover women’s issues—namely, the Special Rapporteur on Violence against Women, Its Causes and Consequences, as well as certain others such as the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, and Xenophobia, who examines issues such as systematic rape, sexual slavery, and slavery-like practices during armed conflict. A Special Representative of the UN Secretary General is also tasked with the issue of sexual violence in conflict.

Special RapporteursRape

United Nations Entity for Gender Equality and the Empowerment of Women (UN Women)

UN Women was created in July 2010 in order to “promote gender equality and empower women around the world,” as part of the overall reform of the UN launched in 2005.

This new entity combines and merges existing UN structures, namely the Division for the Advancement of Women (DAW), the International Research and Training Institute for the Advancement of Women (INSTRAW), the United Nations Development Fund for Women (UNIFEM), and the Office of the Special Adviser on Gender Issues and Advancement of Women (OSAGI).

The role of UN Women, which began operations in January 2011, is to promote gender equality among UN agencies and Member States. Its main activities include the transmission of information on gender issues, as well as advice and technical support in the formulation of global standards, norms, and policies. UN Women also monitors the implementation of commitments made by the UN system on gender equality.

ChildrenCommittee on the Elimination of Discrimination against WomenDetentionFamilyFamily reunificationFundamental guaranteesIndividual recourseInternational Criminal CourtInternational Criminal TribunalsInternmentJudicial guaranteesPrisoners of warProtected personsRape

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For Additional Information: Amnesty International. Human Rights Are Women’s Rights . London: Amnesty International, 1995.

Askin, Kelly D., and Dorean M. Koenig, eds. Women and International Human Rights Law . Ardsley, NY: Transnational, 2000.

Durham, Helen, and Katie O’Byrne. “The Dialogue of Difference: Gender Perspectives on International Humanitarian Law.” International Review of the Red Cross 877 (March 2010): 31–52.

Gardam, Judith G. “Women, Human Rights and International Humanitarian Law.” International Review of the Red Cross 324 (September–October 1998): 421–32.

Hampson, Françoise. “Women and Humanitarian Law.” In The Human Rights of Women: International Instruments and African Experiences , edited by Benedek Wolfgang, Esther M. Kisaakye, and Gerd Oberleitner, 173–209. London: Zed, 2002.

ICRC. Addressing the Needs of Women Affected by Armed Conflict: An ICRC Guidance Document . Geneva: ICRC, 2004. Available at http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/p0840/$File/ICRC_002_0840.PDF!Open .

———. Women and War . Geneva: ICRC, 1995.

———. Women Facing War . Geneva: ICRC, 2001.

“Women.” International Review of the Red Cross 877 (March 2010): 5–303.

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