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The dialogue of difference: gender perspectives on international humanitarian law

Published online by Cambridge University Press:  22 March 2010

Helen Durham  and
Katie O'Byrne
Helen Durham
Affiliation:
Dr Helen Durham is the Strategic Advisor for International Law and Special Projects at the Australian Red Cross and a Senior Fellow at the Asia Pacific Centre for Military Law, Melbourne Law School.
Katie O'Byrne
Affiliation:
Katie O'Byrne is a solicitor at Freehills in Melbourne and a former assistant legal officer at the International Criminal Tribunal for the Former Yugoslavia (ICTY).
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Abstract

This article examines the meaning and potential usefulness of a ‘gender perspective’ on international humanitarian law (IHL). In order to do so, it considers a number of ‘gendered’ themes found within IHL, including the role of women as combatants, and the gendered use of sexual violence during times of armed conflict. The authors suggest that further development and understanding of a gender perspective will contribute to the resilience and effectiveness of IHL as a system of law, and will strengthen the protection of those who are victimized and disempowered during times of war.

Type
Women
Information
International Review of the Red Cross , Volume 92 , Issue 877: Women , March 2010 , pp. 31 - 52
Copyright
Copyright © International Committee of the Red Cross 2010

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References

1 International Humanitarian Law and Gender, Report Summary, International Expert Meeting: ‘Gender Perspectives on International Humanitarian Law’, 4–5 October 2007, Stockholm, Sweden, available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/ihl-women-report-051008/$File/ihl%20and%20gender.pdf (visited 10 December 2009).

2 See Otto, Dianne, ‘Lost in translation: re-scripting the sexed subjects of international human rights law’, in Anne Orford (ed), International Law and its Others, Cambridge University Press, Cambridge, 2006, pp. 318–356.CrossRefGoogle Scholar; Carol Cohn, ‘War, Wimps and Women: Talking Gender and Thinking War’ in Miriam Cooke and Angela Woollacott (eds), Gendering War Talk, Princeton University Press, Princeton, NJ, 1993, pp. 227–246; Rosemarie Putnam Tong, ‘Introduction: The Diversity of Feminist Thinking’ in Feminist Thought, Westview Press, 1998, pp. 1–9.

3 International Committee of the Red Cross (ICRC), Addressing the Needs of Women Affected by Armed Conflict, ICRC, Geneva, 2004, p. 7.

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7 Report Summary, International Expert Meeting, above note 1, p. 6.

8 See in particular Judith Gardam and Michelle Jarvis, Women, Armed Conflict and International Law, Kluwer Law International, 2001; see also the review of this book in Durham, Helen, ‘Women, armed conflict and international law’, International Review of the Red Cross, vol. 84, no. 847, September 2002, p. 655CrossRefGoogle Scholar.

9 International Committee of the Red Cross (ICRC), Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 (Geneva Convention I); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85 (Geneva Convention II); Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135 (Geneva Convention III); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (Geneva Convention IV).

10 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, (Protocol I), and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, (Protocol II).

11 Gardam and Jarvis, above note 8, p. 93.

12 Ibid, pp. 96–97.

13 Brownmiller, Susan, Against Our Will: Men, Women and Rape, Simon and Schuster, New York, 1975Google Scholar; Meron, Theodor, ‘Rape as a Crime under International Humanitarian Law’, American Journal of International Law, vol. 87, no. 3, 1993, p. 424CrossRefGoogle Scholar; Alexandra Stiglmayer (ed.), Mass Rape: The War Against Women in Bosnia-Herzegovina, University of Nebraska Press, Lincoln, NE, 1994; Kelly Dawn Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals, Kluwer Law International, The Hague, 1997; Patricia Viseur Sellers and Kaoru Okuizumi, ‘Intentional Prosecution of Sexual Assaults’, Transnational Law and Contemporary Problems, vol. 7, 1997, p. 45; Gardam, Judith, ‘Women and the Law of Armed Conflict: Why the Silence?’, International and Comparative Law Quarterly, vol. 46, 1997, pp 55–80CrossRefGoogle Scholar; Judith Gardam, ‘Women, Human Rights, and International Humanitarian Law’, International Review of the Red Cross, vol. 324, 1998, p. 421; Christine Chinkin, ‘Women: The Forgotten Victims of Armed Conflict?’ in Helen Durham and Tim McCormack (eds), The Changing Face of Conflict and the Efficacy of International Humanitarian Law, Martinus Nijhoff Publishers, Dordrecht, 1999; Anne M. Hoefgen, ‘“There will be no justice unless women are part of that justice”: Rape in Bosnia, the ICTY and “gender sensitive” prosecutions’, Wisconsin Women's Law Journal, vol. 14, 1999, p. 155; Jennifer Green, Rhonda Copelon and Patrick Cotter, ‘Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique’, Hastings Women's Law Journal, vol. 5, 1994, p. 171; Eva Erb, Nicole, ‘Gender-based crimes under the draft statute for the permanent International Criminal Court’, Columbia Human Rights Law Review, vol. 29, 1998, p. 401Google Scholar; Cate Steains, ‘Gender Issues’, in Roy S. Lee (ed), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results, Kluwer Law International, The Hague, 1999, pp. 357–390; Judith Gardam, ‘The Neglected Aspect of Women and Armed Conflict: Progressive Development of the Law’, Netherlands International Law Review, 2005, pp. 197–219.

14 Charlotte Lindsey, ‘The Impact of Armed Conflict on Women’, in Helen Durham and Tracey Gurd (eds), Listening to the Silences: Women and War, Koninklijke Brill, Leiden, 2005, p. 33.

15 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, Protocol I, art. 76; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, Protocol II, art. 4(2)(e).

16 UN General Assembly, Rome Statute of the International Criminal Court (ICC Statute) (last amended January 2002), 17 July 1998, A/CONF. 183/9, entry into force 1 July 2002, arts 8(2)(b)(xxii) and 8(2)(e)(vi), which criminalize the commission of rape, sexual slavery, enforced prostitution, forced pregnancy … enforced sterilization or any other from of sexual violence also constituting a grave breach of the Geneva Conventions’.

17 Carrie McDougall, ‘The Sexual Violence Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda: The Silence Has Been Broken But There's Still a Lot to Shout About’, in Ustinia Dolgopol and Judith Gardam (eds), The Challenge of Conflict: International Law Responds, Martinus Nijhoff, The Hague, 2006, pp. 331–446.

18 Helen Durham, ‘International Humanitarian Law and the Protection of Women’ in Durham and Gurd (eds), above note 14, p. 97.

19 Bennoune, Karima, ‘Do We Need New International Law to Protect Women in Armed Conflict?’, Case Western Reserve Journal of International Law, vol. 38, no. 2, 2007, p. 388Google Scholar.

20 See UN Doc. S/Res/1325 (2000) on Women and peace and security, UN Doc. S/Res/1612 (2005) on Children and armed conflict, UN Doc. S/Res/1674 (2006) on Protection of civilians in armed conflict, UN Doc. S/Res/1820 (2008) on Women and peace and security, UN Doc. S/Res/1882 (2009) on Children and armed conflict, UN Doc. S/Res/1888 (2009) on Women and peace and security, and UN Doc. S/Res/1894 on Protection of civilians in armed conflict.

21 ST/SGB/2003/13, 9 October 2003.

22 ST/SGB/1999/13, 6 August 1999.

23 Statistical Abstract of the United States: 2009, Table 494: Department of Defence Personnel, available at http://www.census.gov/compendia/statab/ (last visited 13 November 2009).

24 Canadian Forces National Report to the Committee for Women in NATO Forces, 2006, p. 1, available at http://www.nato.int/ims/2006/win/pdf/canada_national_report_2006.pdf (last visited 15 November 2009); Canadian Forces Recruiting Timeline, 1885–2007, available at http://www.forces.ca/html/womeninthecf_en.aspx (last visited 15 November 2009).

25 Israel Ministry of Foreign Affairs, ‘Integration of Women in the IDF’, 8 March 2009, available at http://www.mfa.gov.il/MFA/Israel+beyond+politics/Integration_women_in_IDF-March_2009 (last visited 15 November 2009), quoting statistics published by the then IDF Women's Affairs Advisor, Brigadier General Yehudit Grisaro.

26 See for example Mary Zeiss Stange, ‘From Domestic Terrorism to Armed Revolution: Women's Right to Self-Defense as an Essential Human Right,’ Journal of Law, Economics & Policy, vol. 2, 2006, p. 385, see in particular Pt IV, in which the author discusses the participation of women in liberation armies in Nepal, Kurdistan, Sri Lanka and Colombia. See also Angela Veale, From Child Soldier to Ex-Fighter: Female Fighters, Demobilisation and Reintegration in Ethiopia, Institute for Security Studies, Pretoria, 2003; Elise Fredrikke Barth, Peace as Disappointment: The Reintegration of Female Soldiers in Post-Conflict Societies: A Comparative Study from Africa, International Peace Research Institute (PRIO), Oslo, August 2002, available at http://www.peacewomen.org/resources/DDR/AfricaBarth.html (last visited 15 November 2009).

27 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.

28 Geneva Convention III, arts 25, 29, 97 and 108.

29 Ibid, art. 49.

30 Ibid, art. 88.

31 See Geneva Convention IV, art. 97, which states that a woman internee shall not be searched except by a woman.

32 See generally Major General Antonio M. Taguba, Article 15-6 Investigation of the 800th Military Police Brigade, 2004; Scott Higham and Joe Stephens, ‘New Details of Prison Abuse Emerge: Abu Ghraib Detainees’ Statements Describe Sexual Humiliation and Savage Beatings,' The Washington Post, May 21, 2004; Linda Burnham, ‘Sexual Domination in Uniform: An American Value’, War Times, www.war-times.org, 19 May 2004.

33 Zillah Eisenstein, ‘Sexual Humiliation, Gender Confusion and the Horrors at Abu Ghraib’, in Zillah Eisenstein, Sexual Decoys: Gender, Race and War in Imperial Democracy, Zed Books Ltd, New York, 2007, pp. 37, 41.

34 Whitworth, above note 6, p. 124 (citations omitted).

35 Geneva Convention III, art. 14.

36 For further discussion see H. Durham, ‘International Humanitarian Law and the Protection of Women’, in Durham and Gurd (eds), above note 14, p. 101.

37 C. Lindsey, ‘The Impact of Armed Conflict on Women,’ in Durham and Gurd, ibid., p. 29.

38 Nicole Hogg, ‘Women's participation in the Rwandan genocide: mothers or monsters?’, in this issue of the Review. For further detailed information on female participation in the genocide, see African Rights, Not So Innocent: When Women Become Killers, 1995.

39 See N. Hogg, above note 38.

40 International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda between 1 January 1994 and 31 December 1994, created under Chapter VII of the United Nations Charter, UN Doc. S/Res/955 (1994) (ICTR).

41 International Criminal Tribunal for Rwanda (ICTR) Prosecutor v. Nyiramasuhuko, Case No. ICTR 97-21-I, Amended Indictment, 3 January 2001, see in particular pt 6. The joint trial of Nyiramasuhuko and five co-accused concluded on 30 April 2009. As at 29 November 2009, judgement has not yet been rendered.

42 Peter Landesman, ‘The Minister for Rape’, The Age, Good Weekend (Magazine), 30 November 2002, p. 28.

43 Ibid, p. 30.

44 Sperling, Carrie, ‘Mother of atrocities: Pauline Nyiramasuhuko's role in the Rwandan genocide’, Fordham Urban Law Journal, vol. 33, no. 1, 2006, p. 637Google Scholar.

45 Miller, Alexandra A., ‘From the International Criminal Tribunal for Rwanda to the International Criminal Court: Expanding the Definition of Genocide to Include Rape’, Pennsylvania State Law Review, vol. 108, 2003, p. 372Google Scholar.

46 Sperling, above note 44.

47 Geneva Convention I, art. 49; Geneva Convention II, art. 50; Geneva Convention III, art. 129; Geneva Convention IV, art. 146.

48 Penny Cumming, ‘Combat Operations in Iraq: An Australian Soldier's Perspective’, in Durham and Gurd (eds), above note 14, p. 17.

49 Ibid.

50 Brendan Nicholson, ‘Women reluctant to join military’, The Age, 20 November 2009.

51 Andrew Bolt, ‘Up front on women’, The Herald Sun, 4 April 2007.

52 Lucinda Peach, ‘Women at War: The Ethics of Women in Combat’, Hamline Journal of Public Law and Policy, vol. 15, p. 199.

53 Barth, above note 26.

54 Ibid; see also Veale, above note 26.

55 Barth, above note 26.

56 Myriam Denov, Girls in Fighting Forces: Moving Beyond Victimhood, Child Rights Information Network, 2007; Save the Children, Forgotten Casualties of War: Girls in Armed Conflict, 2005, available at http://www.harare.unesco.org/women/2698_GAAF%20report.pdf (last visited 28 November 2009); Vivi Stavrou, Breaking the Silence: Girls Forcibly Involved During Armed Conflict in Angola, Christian Children's Fund and Canadian International Development Agency, Richmond, Virginia and Ottawa: 2005; Susan McKay and Dyan Mazurana, Where are the girls? Girls in fighting forces in Northern Uganda, Sierra Leone and Mozambique: Their lives during and after war, Rights and Democracy, Montreal: 2004.

57 Additional Protocol I, art. 77(2).

58 See Optional Protocol I to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, entry into force 12 February 2002, art. 1: ‘States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities’.

59 UNICEF and Coalition to Stop the Use of Child Soldiers, Guide to the Optional Protocol on the Involvement of Children in Armed Conflict 2003, available at http://www.unicef.org/publications/index_19025.html (last visited 23 November 2009).

60 ICC, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the confirmation of charges, 29 January 2007.

61 See above note 27.

62 See references in footnote 13 and Kelly Dawn Askin, ‘Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current status’, American Journal of International Law, vol. 93, 1999, p. 97; Karen Engle, ‘Feminism and its Discontents: Criminalising Wartime Rape in Bosnia and Herzegovina’, American Journal of International Law, vol. 99, 2005, p. 778; Anne-Marie de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR, Intersentia, 2005; Mark Ellis, ‘Breaking the Silence: Rape as an International Crime’, Case Western Reserve Journal of International Law, vol. 38, no. 2, 2006/2007, p. 255.

63 See ICTR Prosecutor v. Akayesu, Case No ICTR-96-4-T, Trial Judgement, 2 September 1998, para. 599; ICTR Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Judgement, 16 November 1998, paras 478–9; International Criminal Tribunal for the former Yugoslavia (ICTY) Prosecutor v. Furundžija, Case No IT-95-17/1-T, Trial Judgement, 10 December 1998, para. 172; ICTY Prosecutor v. Kunarac et al., Case No. IT-96-23 & 23/1-T, Trial Judgement, 22 February 2001, para. 460, affirmed in Prosecutor v. Kunarac et al., Case No. IT-96-23 & 23/1-A, Appeal Judgement, 12 June 2002, paras 127–8; ICTY Prosecutor v. Krstić, Case No. IT-98-33-T, Trial Judgement, 2 August 2001, para. 513; ICTR Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgement and Sentence, 15 May 2003, paras 344–6; ICTR Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-A, Appeal Judgement, 7 July 2006, paras 153–5.

64 For discussion of the relevance of consent to the crime of rape in situations of armed conflict, see Anne-Marie de Brouwer, above note 62, pp. 103–136; Adrienne Kalosieh, ‘Consent to genocide?: The ICTY's improper use of the consent paradigm to prosecute genocidal rape in Foča’, Women's Rights Law Reporter, vol. 24, 2003, p. 121; Wolfgang Schomburg and Ines Peterson, ‘Genuine Consent to Sexual Violence Under International Criminal Law’, American Journal of International Law, vol. 101, 2007, p. 121.

65 For discussion of the various ways the Tribunals have defined rape, see Kristen Boon, ‘Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy and Consent’, Columbia Human Rights Law Review, vol. 32, 2001, pp. 667–73, 674–5; Anne-Marie de Brouwer, above note 62, pp. 103–136; Catharine A. MacKinnon, ‘Defining Rape Internationally: A Comment on Akayesu’, in Catharine A. MacKinnon, Are Women Human? And Other International Dialogues, Harvard University Press, Cambridge, MA, 2006, p. 237; Schomburg and Peterson, above note 64, see in particular pp. 132–8; Alison Cole, ‘Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape under International Law’, International Criminal Law Review, vol. 8, nos 1–2, 2008, pp. 55–85.

66 ICC Statute, arts 7(1)(g), 8(2)(b)(xxii), 8(2)(e)(vi).

67 Dustin A. Lewis, ‘Unrecognized Victims: Sexual violence against men in conflict settings under international law’, Wisconsin International Law Journal, vol. 27, 2009, p. 1; Lara Stemple, ‘Male Rape And Human Rights’, Hastings Law Journal, vol. 60, 2009, p. 605; Sandesh Sivakumaran, ‘Sexual Violence Against Men in Armed Conflict’, European Journal of International Law, vol. 18, 2007, p. 253; Augusta Del Zotto and Adam Jones, ‘Male-on-male sexual violence in wartime: human rights’ last taboo?', Paper presented to the annual convention of the International Studies Association, New Orleans, 23–27 March 2002.

68 See for example Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Application of the Republic of Bosnia and Herzegovina, paras 44D(c), (h), 62; Oral Proceedings of Bosnia and Herzegovina (CR 2006/06), p. 51, detailing allegations of sexual abuse of Bosnian Muslim men by Yugoslav forces during the Bosnian War; Sivakumaran, above note 65, pp. 257–60, where the author sets out a brief history of the commission of sexual violence against men in armed conflicts, spanning from Ancient Persia to today's Democratic Republic of the Congo; Eric Stener Carlson, ‘The Hidden Prevalence of Male Sexual Assault During War: Observations on Blunt Trauma to the Male Genitals’, British Journal of Criminology, vol. 46, 2006, p. 16; Pauline Oosterhoff et al., ‘Sexual Torture of Men in Croatia and Other Conflict Situations: An Open Secret’, Reproductive Health Matters, vol. 12, 2004, pp. 68–77; Michael Peel, ‘Men as perpetrators and victims’, in Michael Peel (ed), Rape as a Method of Torture, Medical Foundation for the Care of Victims of Torture, London, 2004; Michael Peel, A. Mahatani, G. Hinshelwood and D. Forrest, ‘The sexual abuse of men in detention in Sri Lanka’, The Lancet, vol. 355, issue 9220, 2000, p. 2069.

69 See for example Sivakumaran, above note 67, p. 260; Eisenstein, above note 31.

70 See ‘Congo's male rape victims speak out’, Agence France-Presse, 30 April 2009, available at http://www.clipsyndicate.com/video/play/928991/congo_s_male_rape_victims_speak_out (last visited 23 November 2009), in which a victim of sexual violence states ‘At first I was really ashamed, because I'd never heard of a man being raped’.

71 Lewis, above note 67, pp. 6–10; Sivakumaran, above note 67, pp. 255–257.

72 R. Charli Carpenter, ‘Recognizing Gender-Based Violence Against Civilian Men and Boys in Conflict Situations’, Security Dialogue, vol. 37, 2006, no. 1, pp. 83–103.

73 Lewis, above note 67, p. 9, citing Daniel Ottosson, International Lesbian and Gay Association, ‘State-Sponsored Homophobia: A World Survey of Laws Prohibiting Same Sex Activity Between Consenting Adults’, 2008, available at http://www.ilga.org/statehomophobia/ILGA_State_Sponsored_Homophobia_2008.pdf (last visited 23 November 2009), p. 4, reporting that seven countries currently impose capital punishment for male–male sex.

74 Stemple, above note 67; Scully, Pamela, ‘Vulnerable Women: A critical reflection on human rights discourse and sexual violence’, Emory International Law Review, vol. 23, 2009, p. 113Google Scholar.

75 Ibid. For examples of human rights instruments that focus on sexual violence against females, see UN Doc. S/Res/1325 (2000) on Women and peace and security, UN Doc. S/Res/1820 (2008) on Women and peace and security, UN Doc. S/Res/1888 (2009) on Women and peace and security, UN Doc. S/Res/1889 (2009) on Women and peace and security, and UN Doc. S/Res/1894 (2009) on Protection of civilians in armed conflict.

76 Stemple, above note 67, p. 618.

77 Ibid., p. 634.

78 Sivakumaran, above note 67, p. 260.

79 United Nations Office for the Co-ordination of Humanitarian Affairs, Research Meeting, Use of Sexual Violence in Armed Conflict: Identifying Gaps in Research to Inform More Effective Interventions, ‘Discussion Paper 2: The Nature, Scope and Motivation for Sexual Violence Against Men and Boys in Armed Conflict’, 26 June 2008.

80 ICTY Case No. IT-95-10/1, Sentencing Judgement, 11 March 2004, paras 33, 52–53, 103.

81 ICTY Case No. IT-94-1, Amended Indictment, Counts 8–11.

82 ICTY Case No. IT-96-21, Indictment, Counts 44 and 45.

83 See ICTY Prosecutor v. Kunarac et al., Case No. IT-96-23-T&IT-96-23/1, Judgement, 22 February 2001, para. 437: ‘the sexual penetration, however slight … (b) of the mouth of the victim … by the penis of the perpetrator … by coercion or force or threat of force against the victim or a third person’.

84 Additional Protocol I, art. 76(3).

85 Additional Protocol II, art. 6(4).

86 Report Summary, International Expert Meeting, above note 1, p. 11.

87 Genderforce Sweden, ‘From words to action’, p. 4, available at http://www.genderforce.se/dokument/From_words_to_action.pdf (last visited 29 November 2009).