IHL and Gender Perspectives: Time for Evolution or Revolution?
Over the last few decades there has been a concerted movement to promote a gender perspective within the international humanitarian law (IHL). Such a movement has gained considerable momentum and importance as a central tool addressing gendered vulnerabilities in conflict. Gender itself can be defined as: “socially constructed differences between persons based on sex, perceived or actual sexual orientation, gender identity or gender expression.” While definitions may vary, “the core is that the socially constructed differences between persons are changeable over time and are different both within and between cultures.” Taking a gender perspective applies these social constructions towards a given action in order to better identify and address specific vulnerabilities.
When coupled with IHL, the body of law regulating armed conflict, the lens of a gender perspective can be a key tool for warring parties and humanitarian actors to utilize in promoting better adherence to legal norms during conflict, and better protection for vulnerable populations. By taking such socially constructed structures into account, it is hoped that the law can be more effectively applied and implemented. This movement can point to several successes such as the adoption of the 2007 Paris Principles addressing child soldiers, ICRC Conference Pledge 1124 (activities pertaining to IHL undertaken between 2012 and 2015 should include a gender perspective) and Resolution 3 from the 2015 ICRC Conference (Sexual and Gender Based Violence).
It should be noted that the term gender and gender perspectives does not “imply societal or political transformation linked to gender equality, but simply defines the different functions, status, needs and capacities different people have within a society.” This article addresses the field of IHL and gender perspectives; many important dimensions of gender and conflict will not be covered, such as gender and conflict resolution or gender mainstreaming.
IHL: Legal regulation and gender
In order to assess the impact of a gender perspective on IHL, it is important to discuss how IHL structurally approaches gender. When we look at IHL itself, and the large number of rules found within the Geneva Conventions and its Additional Protocols, IHL is largely gender neutral, meaning that it is applied “without any adverse distinction” – a non discrimination clause set out in Common Article 3 and customary international law. For example, a combatant would be a subject to the benefits and limitations of such regardless of gender. Having said that, under the Geneva Conventions and Additional Protocols there are 42 provisions that address women specifically, mainly as caregiver or expectant mothers. In large part this can be understood through the prism of the historical time in which it was developed and with the development of customary law these gendered aspects have tended to fall away. For example, whilst Article 23 of the Fourth Geneva Convention states that warring parties “shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases”, under Rule 55 of the Customary International Law Study we can see that the provisions relating to humanitarian aid clearly set out that they should be “conducted without any adverse distinction”. When it comes to sexual violence, for example, the absolute prohibition does not depend on the gender of the victim or attacker, hence IHL cannot support “use of gender as a justification for discriminating between classes of victims”. Nonetheless, the implementation of IHL may result in gendered differences in practice.
IHL and gender in practice
When discussing gender perspectives it is important thus to give specific tangible examples of how the issues can interact. For instance, in a situation of occupation there is a central positive obligation under IHL for an occupying power to ensure public order and safety under Article 43 of the 1907 Hague Regulations. As Sally Longworth highlights in the recent publication IHL and Gender: Swedish Experiences, in order to fulfill this legal obligation, an awareness of gendered vulnerabilities must be taken into consideration. For example, in the Crimea men and boys of a certain community were vulnerable to detention and torture by militia, and women and girls were particularly vulnerable to sexual gender based violence (SGBV). A gender perspective demands that in the process of planning and implementing an occupation, an occupying power must take such potential vulnerabilities and dynamics into account and plan accordingly in order to prevent their occurrence, and consequently to meet its legal obligations under international law. Just this one example highlights the important protective impact a gender perspective can have.
Time to evaluate: Gender perspectives 2.0?
While a gender perspective on IHL provides greater insight into a number of humanitarian protection challenges, it is also important to indicate gaps and identify areas to clarify and develop.
First, the focus on women and girls – some have raised the concern that gender perspectives, particularly those relating to SGBV, may have become overly focused on issues faced by women and girls. As a result, unique issues facing male, as well as lesbian, gay, bisexual, transgender and intersex persons, are not fully and comprehensively addressed. Moving forward it will be important to identify opportunities and see where and how such issues can be addressed and gaps plugged where needed.
Second, highlighting vulnerability v. gender perspectives – One issue that can arise when looking at gender and IHL are advocacy strategies that prioritize certain gendered categories of victims. For example, in conflict zones there is often an advocacy tactic of highlighting the numbers of women and children injured or killed. Whilst very powerful at times, this approach may fuel perceptions of women being more vulnerable and conversely more valued, with the flip side being that male lives could be deemed to have less value. This is of particular concern if it influences assessments of the lawfulness of conduct. For example, in targeting assessments, there is a risk that young men could be presumed combatants or participating directly in hostilities based on their gender and age, and therefore classified incorrectly as lawful targets of attack.
Third, with regard to vulnerabilities; why only a gender perspective? As we look across the range of conflict dynamics, it’s possible to identify groups who face specific vulnerabilities, including and beyond issues of gender. These can include age, culture, disabilities and religion to name just a few. It is therefore important to ask how the progress and lessons learnt by the gender approach could be extended to other key identified vulnerabilities, especially where they overlap. For example, when looking at the issue of occupation and ensuring law and order, it would be entirely appropriate to ensure that occupying forces assess dynamics above and beyond gender.
Fourth, the risk of generalizations or perpetuating stereotypes – One inherent limitation of any approach (from IHL implementation to the provision of humanitarian services) which groups together vulnerabilities – be it those facing women, men, or those with a specific disability – is that however much you take into account group needs and protection gaps, there will always be individual exceptions. For example, in some circumstances it may be deemed appropriate to organize group therapy sessions for victims of conflict along gender lines, informed by the perception that, for example, a group of women would prefer to speak amongst other women, and vice versa. This approach may have its merits, but it may also fail to identify minority voices within gender groups (e.g. men subjected to SGBV by other men, or those who have suffered conflict related-disabilities, such as loss of limbs, and wish to share experiences and insights with those who suffered similar injuries, rather than with those who share their gender alone). We should therefore remain cognizant that a gender perspective is a starting point for improving the effectiveness of law, protection and humanitarian work, and not an end in itself.
When it comes to gender perspectives on international humanitarian law, it is also important to differentiate between substantive IHL issues in terms of normative content, and the complex and multi-layered gender perspectives shaping the implementation of the law. With regard to the black letter law itself, in my opinion, IHL should not make gendered categories of protection (such as those relating to women as caregivers), but should rather provide a clear and consistent gender-neutral approach based on status. Caregivers can be men, boys, girls, the elderly, as is also the case with fighters, and so the law should not ‘genderize’ its legal provisions. As to the implementation of the law, however, as well as with protection and humanitarian programming, gender perspectives remain essential in many respects. This is critical since conflict often exacerbates existing gender inequalities in societies. As we move forward, the application of gender perspectives to improve protection work could inspire the development of a broader and more comprehensive approach which looks to both address other identified vulnerabilities within conflict, and is flexible enough to address exceptions and anomalies. In this context it could be hoped that the rights and protections afforded by IHL are adhered to and truly respected in a comprehensive manner.
For more discussion of gender perspectives on international humanitarian law (IHL) and protection in practice, tune in to this month’s ATHA Podcast.
Senior Legal Researcher
Stephen Wilkinson is a senior legal researcher with the Advanced Training Program on Humanitarian Action, specializing in international humanitarian law (IHL) and human rights in armed conflict. Previously he was a Legal Officer with the United Nations, a Legal Advisor with the Diakonia International Humanitarian Law Resource Center in Jerusalem and researcher with the Geneva Academy of International Humanitarian Law and Human Rights. He has engaged in numerous projects with both the United Nations and academic bodies relating to the monitoring and investigation of international humanitarian law. Other previous work includes time in Cambodia as a legal researcher on child sexual violence and for the United Nationals Relief and Works Agency in Lebanon. He has also engaged in recent consultancies addressing IHL and human rights issues in Syria and Mali. He holds an LL.M (distinction) from the Geneva Academy of International Humanitarian law and Human Rights, as well as an LL.B (hons) from the University of Leeds. In addition he is a PhD candidate at the University of Geneva. He has also previously worked with us on the MRF project.