Women, armed conflict, and international law

WOMEN, ARMED CONFLICT AND INTERNATIONAL LAW Judith G. Gardam Michelle J. Jarvis Kluwer Law International WOMEN, ARME...

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WOMEN, ARMED CONFLICT AND INTERNATIONAL LAW

Judith G. Gardam Michelle J. Jarvis

Kluwer Law International


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WOMEN, ARMED CONFLICT AND INTERNATIONAL LAW by

Judith G. Gardam University ofAdelaide School of Law and

Michelle J. Jarvis Associate Legal Officer, International Criminal Tribunal for the Former Yugoslavia

Kluwer Law International The Hague / London / Boston

A C.I.P. Catalogue record for this book is available from the Library of Congress

ISBN 90-411-1640-0

Published by Kluwer Law International, P.O. Box 85889, 2508 CN The Hague, The Netherlands. Sold and distributed in North, Central and South America by Kluwer Law International, 101 Philip Drive, Norwell, MA 02061, U.S.A. kluwerlaw @ wkap. com In all other countries, sold and distributed by Kluwer Law International, Distribution Centre, P.O. Box 322, 3300 AH Dordrecht, The Netherlands.

Printed on acid-free paper

The views expressed herein are those of the authors and do not necessarily reflect the views of the United Nations. All Rights Reserved © 2001 Kluwer Law International Kluwer Law International incorporates the publishing programmes of Graham & Trotman Ltd, Kluwer Law and Taxation Publishers, and Martinus Nijhoff Publishers. No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner. Printed in the Netherlands.

To my

JGG To my mother Jan

MJJ


Table of Contents ACKNOWLEDGMENTS

xi

FOREWORD CHAPTER 1

1. 2.

3.

THE IMPACT OF ARMED CONFLICT ON WOMEN

Introduction The Distinctive Experiences of Women Affected by Armed Conflict a. The Deliberate Killing of Civilian Women b. "Collateral Damage" and Women c. Violence against Women d. Displaced and Refugee Women e. Women in Detention f. Reinforced Gender Stereotypes g. Loss of Family Members h. Loss of Social Position i. Economic Effects of Armed Conflict j . Access to Essential Supplies and Services (i) Women's health (ii) Access to emergency relief k. Women Combatants Conclusion

CHAPTER 3

1. 2. 3.


Introduction Why the Need for a Study of Women and IHL?

CHAPTER 2

1. 2.

xiii

INTERNATIONAL HUMANITARIAN LAW, WOMEN AND ARMED CONFLICT

Introduction Women and IHL - Early Developments Modern IHL and Women a. Boundaries of IHL b. Equal Treatment c. Special Protection for Women (i) Separate quarters and conveniences for women prisoners of war and internees (ii) Protection against sexual assault (in)Pregnant women (expectant mothers) and maternity cases d. The Maintenance and Restoration of Family Ties e. General Protection of the Civilian Population against the Effects of Hostilities (i) International armed conflicts (ii) Non-international armed conflicts £ Regulation of Weapons a. War Crimes Vll

1

1 4 19

19 21 21 23 25 30 33 35 37 38 40 42 43 47 48 51 53

53 56 58 58 61 62 63 64 65 68 68 68 71 71 72

viii

Table of Contents

(i) War crimes and international armed conflicts (ii) War crimes and non-international armed conflicts h. Crimes against Humanity and Genocide (i) Crimes against Humanity (ii) The Genocide Convention i. Rules and Procedures for Prosecuting International Crimes Committed during Armed Conflict j . Compensation for Victims of Armed Conflict CHAPTER 4

1. 2.

3. 4. 5. 6. 7. 8.

CHAPTER 5

1. 2. 3. 4.

5.

6.

A GENDER VIEW OF THE SHAPING OF IHL

Introduction The Woman of IHL a. The Special Provisions and the Norm of IHL b. The General Provisions and the Norm of IHL c. The Hierarchy of the Rules The Woman of IHL and the Reality of Armed Conflict for Women The Ideal of Woman as the Basis for IHL The Influence of the Military The Field of Application of IHL Interpretation and Development of IHL Conclusion UN DEVELOPMENTS CONCERNING WOMEN AND ARMED CONFLICT

Introduction Early Approaches: The Commission on the Status of Women 1968-1974 1974-1990: The Topic of Women and Armed Conflict Disappears from the Agenda The 1990s: Focus on Sexual Violence a. The United Nations Compensation Commission b. The "Comfort Women" c. The Campaign to Eradicate Violence Against Women d. Rape in Armed Conflict as a Threat to International Peace and Security (i) The former Yugoslavia (ii) Rwanda e. The UN Special Rapporteurs on Thematic Issues Related to Sexual Violence during Armed Conflict The Beijing Conference on Women and Subsequent Developments: A Broader Approach to the Impact of Armed Conflict on Women a. The Beijing Platform for Action b. The Commission on the Status of Women c. The Special Rapporteurs d. TheUNHCR e. The Security Council and the Secretary-General f. The Beijing Review A Comparison of Approaches a. The Impact of Armed Conflict on Women b. Causes of Vulnerability during Armed Conflict c. Constructions of Sexual Violence During Armed Conflict d. Hierarchy of Concern

73 76 78 78 81 83 87 93

93 95 95 97 99 101 107 112 122 128 134 135

135 137 143 144 144 144 146 148 148 151 160 162 162 165 166 168 168 169 170 170 172 172 173

Table of Contents

e. A Compartmentalised Existence f. An Evolving Woman CHAPTER 6

1. 2. 3.

4.

173 175 177

Introduction 177 Women, Discrimination and Redress 180 Prosecuting Crimes against Women 181 a. Gender and What Constitutes a Crime 182 188 (i) Sexual violence as torture (ii) Sexual violence as genocide 190 (Hi) Sexual violence as a crime against humanity 197 (iv) Sexual violence as a war crime: Grave breaches of the 1949 Geneva Conventions, and violations ofthe laws and customs of war 201 204 (v) Other gender issues b. Gender and the Decision to Prosecute at the International Level 204 204 (i) Nuremberg and Tokyo (ii) The Security Council: the ICTYand the ICTR 208 (Hi) The ICC and the decision to prosecute 219 c. Gender and the Conduct of Prosecutions at the International Level 221 d. Prosecutions: An Assessment 227 Compensation 230 a. World War II and Compensation for Women 230 b. The United Nations Compensation Commission 233 c. Compensation, the ICTY and the ICTR 244 d. Compensation and the ICC 246 e. Compensation: An Assessment 247

CHAPTER 7

1. 2.

INTERNATIONAL REDRESS

ix

THE WAY FORWARD

The Utopian Vision: The Integration of IHL and Human Rights The Pragmatic Vision a. Legal Instruments b. Reinterpretation of IHL c. Improved Dissemination d. The Inclusion of Women and the Acknowledgment of Gender in DecisionMaking e. A Centre of Expertise on Gender Issues and Armed Conflict f ICRC

251

254 256 256 257 258 259 262 262

A FINAL WORD

263

BIBLIOGRAPHY

265

INDEX

285


Acknowledgments We received the most generous support and helpful advice from many friends and colleagues in the preparation of this work, in particular Adrian Bradbrook, Hilary Charlesworth, Christine Chinkin, Margaret Davies, Tina Dolgopol, Kaz Eaton, Martin Friedland, Karen Knop, Ngaire Naffine, Rosemary Owens, Valerie Oosterveld, and John Williams. There are many people from many different organisations who also have been of great assistance to us. We would like to thank in particular Hans Peter Gasser, Daniel Helle, and Fred Boll from the ICRC, who provided us with information on many aspects of the organisation's work in relation to women and armed conflict. Jane Connors, of the UN Division for the Advancement of Women, Anne Gallagher of the Human Rights Center, and Deborah Chatsis of the Canadian Permanent Mission to the United Nations, were just some of the women from organisations and governments who willingly gave their time and expertise in answering our various queries. We are very grateful for the excellent research assistance provided by Andreas Schloenhardt, and to Abigail Loregnard-Kasmally, Helen Brady and Heather Northcott who assisted with obtaining various UN documents. The assistance of the Australian Research Council in the preparation of this work is acknowledged. Our thanks also go to both the University of Toronto Law School human rights fellowship programme, and Notre Dame Law School human rights fellowship programme, whose financial assistance enabled Michelle to spend time at the International Criminal Tribunal for the Former Yugoslavia during the early phases of this work.


Foreword International human rights law, international humanitarian law and international refugee law have sought to provide a comprehensive framework to address the harms experienced by both men and women in war. However, discriminatory interpretation and application of these three strands of international law, as well as the failure to recognize women's singular experience of armed conflict, have meant that this framework has not provided the protection and response that women have required. In particular, gender-based harms perpetrated against women, including sexual assault during conflict, have been viewed as less serious transgressions that their non-gender-based equivalents. The last decade, and particularly the years since the Fourth World Conference on Women held in Beijing in 1995, have witnessed important developments in the treatment of harms experienced by women in armed conflict. The Statutes of the Tribunals created to address crimes committed in the former Yugoslavia and Rwanda explicitly incorporate rape as a crime against humanity. The Statute of the International Tribunal for Rwanda expressly includes rape, enforced prostitution and any form of indecent assault as a violation of article 3 common to the Geneva Conventions and of Additional Protocol II. The Statutes and the Rules of Procedure and Evidence of the Tribunals provide for a range of protective measures for witnesses testifying in court, while the Rules of Procedure for the Yugoslav Tribunal provide for a Victims and Witnesses Unit to recommend protective measures for victims and witnesses and to provide counselling and support. Both Tribunals have issued indictments relating to sexual violence and defendants found guilty of such violence have been convicted of crimes against humanity, including as a result of rape, enslavement and torture; violation of the laws or customs of war, including as a result of rape, torture and outrages upon personal dignity; and genocide, through rape and sexual violence committed with the specific intent of destroying in whole or in part a particular group. The Statutes of the Tribunals have been built on by the Rome Statute of the International Criminal Court whose jurisdiction will include genocide, crimes against humanity, war crimes and crimes of aggression. Definitions of these crimes take gender concerns into account, and the Statute makes provision for the application of gender-sensitive justice by providing that in the selection of judges, States parties shall take into account the need for a fair representation of female and male judges and the inclusion of judges with legal expertise on specific issues, including violence against women and children. The Statute also provides for the establishment of a Victims and Witnesses Unit, which is mandated

xm

xiv

Foreword

to include staff with expertise in trauma, including trauma related to crimes of sexual violence. These developments have gone far to reverse the traditional lack of response to the experience of women in armed conflict. But much more remains to be done. In particular, while recognizing and condemning sexual violence against women in armed conflict, we must broaden our approach so as to take account of other aspects of women's experience in conflict, an experience which is a product of their unequal status in society and their sex. And it is now evident that the international community is moving towards a broader approach. On 8 March 2000, International Women's Day, the United Nations Security Council issued a statement recognizing that peace is inextricably linked to equality between women and men, and affirming that the equal access and full participation of women in power structures and their full involvement in all efforts for the prevention and resolution of conflicts are essential for the maintenance and promotion of peace and security. The Security Council stressed that if women were to play an equal part in security and maintaining peace they must be represented politically and economically at all levels of decision-making, at the pre-conflict stage, during hostilities and at the point of peace-keeping, peace-building, reconciliation and reconstruction. On 24 and 25 October 2000, the Security Council held an open discussion on women, peace and security. It adopted a far-reaching resolution on the topic (1325), which invited the Secretary-General to carry out a study on the impact of armed conflict on women and girls, the role of women in peace-building, and the gender dimensions of peace processes and conflict resolution. "Women, Armed Conflict and International Law" provides a comprehensive description of the impact on women of modern armed conflict and compares that experience with the current legal framework for protection. While the developments of the last decade are acknowledged and welcomed, the legal framework, based as it is on a notion of formal equality which pays little account to the differential impact of armed conflict on women and men, is judged inadequate. The legal framework is, however, ripe for reinterpretation, wide dissemination and full and faithful application. The Secretary-General's study on the impact of armed conflict on women and girls, which is now under preparation, provides the United Nations system with an opportunity for critical analysis of the relevant law and to make creative recommendations for further action. The strength of "Women, Armed Conflict and International Law" is its focus on discrimination and women's inequality as exacerbating women's adverse experience of armed conflict. I am confident that readers of this monograph will emerge with a greater understanding of this experience, and a critical view of the

Foreword

legal standards which exist to provide protection and redress for women whose already lesser status is affected by armed conflict.

Ms. Angela E.V. King United Nations Assistant Secretary-General Special Adviser on Gender Issues and Advancement of Women


CHAPTER 1 WOMEN, ARMED CONFLICT AND INTERNATIONAL LAW

1.

Introduction

This work takes the experience of women of armed conflict, matches it with the law, and investigates reasons for the silence of the latter in relation to these events for women.1 We do not offer a traditional doctrinal study of either International Humanitarian Law (IHL) and women2 nor of the broader topic of international law, armed conflict and women.3 Neither do we attempt a monolithic explanation of what is wrong with the law or why this is so.^ During the period 1989-1997, there were an estimated 103 armed conflicts taking place in 69 locations in the world. 5 Moreover, at any given time,

There are many methods adopted by feminists to investigate law. The process is encapsulated by Ngaire Naffine's idea of an "archaeological dig", revealing layer after layer of the complex story of the much vaunted objectivity and neutrality of the law. See N Naffine, Law and the Sexes (1990) 2. For a discussion of feminist method in the context of international law, see H Charlesworth, "Feminist Methods in International Law", (1999) 93 AJIL 379; and see generally N Lacey, "Legislation Against Sex Discrimination: Questions from a Feminist Perspective", (1987) 14 JL & SocAW. For a traditional approach to women and IHL, see M Tabory, "The Status of Women in Humanitarian Law", in Y Dinstein ed, International Law at a Time of Perplexity (1989) 941, and F Krill, "The Protection of Women in International Humanitarian Law", (1985) 249 IRRC337. For a general examination of IHL, see, for example, L Green, The Contemporary Law of Armed Conflict (2nd ed, 1998), and D Fleck ed, The Handbook of Humanitarian Law in Armed Conflicts (1995). Human rights norms are of some relevance in the context of armed conflict and there is growing convergence between the two regimes. See, for example, T Meron, "The Humanisation of Humanitarian Law" (2000) 94 AJIL 239. In the context of women, see J Gardam, "Women, Human Rights and International Humanitarian Law", (1998) 324IRRC421; Charlesworth, supra note 1, at 385; and Y Khushalani, Dignity and Honour of Women as Basic and Fundamental Human Rights (1982). See also the further discussion of this issue infra Chapter 4 notes 28 ff and accompanying text. As J Ann Tickner writes, feminists are not pre-occupied primarily with arriving at a single universal truth, but rather seek to engage in a dialogue which includes the voices of those rarely heard in the debate, see J Ann Tickner, "You Just Don't Understand: Troubled Engagements Between Feminists and IR Theorists", (1997) 41 International Studies Quarterly 611 at 629. See M Sollenberg ed, States in Armed Conflict 1997 (1998) 7, and Appendix 1 at 13. For the definition of armed conflicts included in these statistics, see Appendix 2 at 19. See also Security Council 1998: Elusive Quest for International Peace and Security, UN Doc S/6626 (1999) (for an overview of the situation in relation to armed conflicts in 1998).

1

International Humanitarian Law, Women and Armed Conflict

many countries are in the process of recovering from armed conflict.^ The civilian casualties from armed conflict today are catastrophic.7 The United Nations Security Council in 1999 noted: "that civilians account for the vast majority of casualties in armed conflicts and are increasingly targeted by combatants and armed elements."8 It follows that millions of women throughout the world, at one time or another, are affected by armed conflict. The magnitude of this humanitarian crisis cannot be over-emphasised. We commence our task with an examination of what happens to women in armed conflict. This is an ambitious undertaking, and the picture we present of the reality of warfare for women is inevitably partial and fragmented. We do not attempt to explain in any detailed way why these events occur, except to the extent necessary to explain the shortcomings of the law. Overall, we conclude that armed conflict exacerbates the global inequalities experienced by women. Moreover, armed conflict creates new and different types of discrimination against women. Against the background of the experience of women of armed conflict, we assess the response of international law to women and armed conflict. Our major focus is the regime of IHL that purports to address, without discrimination, the humanitarian problems arising from armed conflict. The humanitarian objective of IHL is reflected in the definition of IHL adopted by the International Committee of the Red Cross (ICRC), the Swiss based association with special responsibility for IHL,9 which refers to the:

For further information, see the annual editions of Sollenberg, ibid; and see also Security Council 1998: Elusive Quest for International Peace and Security, UN Doc S/6626 (1999). See for example, Impact ofArmed Conflict on Children: Report submitted pursuant to the resolution adopted by the General Assembly AJRES/48/157 to the Fifty First Session of the United Nations General Assembly, Ms Graca Machel, UN Doc A/51/306 (26 Aug 1996) [hereinafter Machel 1996 Report] para 24 (stating that civilians constitute 90% of the casualties from modern armed conflict); and Oxfam International, Improving the UN's Response to Complex Emergencies (1997) (stating that "four out of every five casualties of violent conflict are civilians, most of them women and children"). See also Statement by the President of the Security Council requesting the Secretary General to report to the Council on ways to improve the physical and legal protection of civilians in situations of armed conflict, UN Doc S/PRST/1999/6 (1999); and Sollenberg, supra note 5. UN Doc S/RES/1265 (17 Sep 1999). For the role of the ICRC, see the Statutes of the International Committee of the Red Cross of 24th ]une 1998, reprinted in (1998) 324 IRRC 537. Over the years, the definition and scope of what is today increasingly referred to as IHL has varied. IHL is a relatively new term to describe this area of international law. During the period when war was accepted as a legitimate activity of States, the relevant rules of international law that controlled its conduct were referred to as the law of war. When, however, war was outlawed by the United Nations Charter, the law of war became known as the law of armed conflict. The term IHL has been widely adopted primarily at the instigation of the ICRC.

Women, Armed Conflict and International Law

international rules established by treaties or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts and which, for humanitarian reasons, limit the right of parties to a conflict to use the methods, and means of warfare of their choice, or protect persons and property that are, or may be, affected by conflict.10 IHL attempts to deal with the needs of women by so called "special provisions". IHL, therefore, contains general provisions protecting equally all combatants and civilians, and a number of specific provisions affording women particular protection during armed conflict.11 We scrutinise these provisions and investigate the extent to which the regime of IHL performs its humanitarian task in relation to women. Although the focus of this work is IHL, a field traditionally dominated by the ICRC and the military establishment of States, 12 the work of the United Nations (UN) and its specialised agencies is increasingly supplementing the protections offered to women by IHL, and influencing its future development. Therefore, we also critically consider the work of these bodies that focus on women and armed conflict, and the contribution they have made to addressing the distinctive impact of armed conflict upon women. At the international level redress for all victims 13 of armed conflict is inadequate. Women, however, have distinctive needs in the context of redress. The discrimination that women experience in society generally, is a contributing factor to many of these needs. Moreover, women encounter particular difficulties in obtaining redress in situations where they do not enjoy equality of opportunity. We focus in this work on two particular aspects of redress, namely the prosecution of perpetrators, and the provision of compensation to victims. Certain violations of IHL are designated as international crimes. Moreover, crimes against humanity and genocide can be constituted by events that occur

10 11 12 13

J Pictet eta!, eds, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) xxvii. For a discussion of these provisions of IHL, see infra Chapter 3. There is a complex, symbiotic relationship between the culture of the military and that of the ICRC, see M Ignatieff, The Warrior's Honor (1997) 122 (for a discussion of this relationship). There are problems associated with the term "victim". In particular, there is the view that it disempowers, and that the term "survivor" is more appropriate. See for example, the discussion in, Promoting the Right to Reparation for Survivors of Torture: What Role for a Permanent International Criminal Court (1997) 6, citing R Mawby & S Walklate, Critical Victimology (1994) 12. However, the use of the term "victim" is more accurate in the context of armed conflict where either death or injury may be the outcome.


during armed conflict. ^ We examine the extent to which international criminal law applicable to armed conflict reflects the experiences of women, in not only the determination of what is criminal, but also what offences warrant prosecution at the international level.

2.

Why the Need for a Study of Women and IHL?

A critical examination of IHL and women is long overdue. The protections offered by its provisions are inadequate in relation to all categories of persons affected by armed conflict. To some extent the consequences of these shortcomings have been examined, and reforms to the law proposed. There have been concerted efforts, particularly since the emergence of the human rights movement, to improve the treatment of civilians in armed conflict. 15 These efforts have met with some success. In 1977 the international community adopted the two Protocols to the 1949 Geneva Conventions, dealing respectively with international and non-international armed conflicts.16 The Protocols enjoy a wide membership. As at 30 July 2000, Protocol I has 156 State Parties, and Protocol II has 149 State Parties. Protocol I makes significant progress in regulating the conduct of hostilities in order to provide increased protections for civilians.17 These latter provisions however, at the time were resisted vigorously by the military of several States, and remain controversial in some quarters.18 The adoption of the Convention on the Prohibition on the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, ^ is an example of what can be achieved if the international campaign is sufficiently well organised and focussed.

14

15 16

17 18 19

For a discussion of the relationship between IHL and crimes against humanity, see W Fenrick, "Should Crimes Against Humanity Replace War Crimes?", (1999) 37 ColJTL 767. The advantage of crimes against humanity is that they are not constrained by die classification problems of IHL, and the essence of the offence is the activity, not whether it takes place in an international or noninternational armed conflict. See generally, ] Gardam, Non-Combatant Immunity as a Norm of International Humanitarian Law (1993). Protocol Additional to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims ofInternational Armed Conflicts, adopted in 1977 (Protocol I), (1977) 16 ILM 1391 [hereinafter Protocol I] and Protocol Additional to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims of non-international Armed Conflicts, adopted in 1977 (Protocol II), (1977) 16 ILM 1442 [hereinafter Protocol II]. See Gardam, supra note 15, at 111-123. See generally, T Meron, "The Time has Come for the US to Ratify Geneva Protocol I", (1994) 88 AJIL 427, 678. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction 1997(the 'Ottawa Convention, (1997) 36 ILM 1507).


In the context of combatants, there are detailed rules protecting combatants when wounded, sick, or prisoners of war.20 It is a difficult task, however, to persuade the military to accept restrictions on the use of any weapon with a perceived military advantage in order to protect combatants (or indeed civilians). An examination of the history of attempts to regulate weapons causing unnecessary suffering or superfluous injury illustrates this point. 21 In recent years, efforts have been focussed on improving the protections offered to children in armed conflict. The primary focus of the international community in relation to children has been on raising the minimum age of participation in hostilities. In January 2000, a draft protocol to the Convention on the Rights of the Child regarding the use of child soldiers, was adopted.22 A study of the impact of armed conflict on children, commissioned by the General Assembly, has also addressed the question of child soldiers as well as some broader issues.23 In addition, a Special Representative to the Secretary-General on Children and Armed Conflict has been appointed.24 Despite these efforts, IHL has been largely impervious to any fundamental critique of the underlying causes for its inadequacies.2^ Many of the explanations for the limitations of IHL are shared by international law generally, for

20

21

22

23 24

25

See Geneva Convention for the amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 Aug 1949 (75 UNTS 31) [hereinafter the First Geneva Convention}; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 Aug 1949 (75 UNTS 85) [hereinafter the Second Geneva Convention] and Geneva Convention relative to the Protection of Prisoners of War, 12 Aug 1949 (75 UNTS 135) [hereinafter the Third Geneva Convention]. See for example, L Doswald-Beck, "Obstacles to Regulating New Weaponry: Battlefield Laser Weapons", in H Fox & M Meyer eds, Effecting Compliance, Armed Conflict and the New Law (1993) 107; and C Jochnick & R Normand, "The Legitimation of Violence: A Critical History of the Laws of War", (1994) 35 HarvIntLJ 49. See Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts, as adopted by consensus on 21 Jan 2000, by the UN inter-sessional open-ended Working Group. Machel 1996 Report, supra note 7. See UN Doc A/RES/51/77 (1996) (recommending the appointment of a Special Representative to study the impact of armed conflict on children). On 19 August 1997 the Secretary General appointed Olara Otunna to this position. See Protection of Children affected by Armed Conflict, UN Doc A/53/482 (12 Oct 1998); Protection of Children affected by Armed Conflict, UN Doc A/54/430 (1 Oct 1999); and Additional Report of the Special Representative of the Secretary-General for Children and Armed Conflict, Mr Olara Otunnu, Submitted in Accordance with General Assembly Resolution 53/128, UN Doc E/CN.4/2000/71 (9 Feb 2000). See, however, Jochnick & Normand, supra note 21. For critical perspectives on international law generally, see for example, M Koskenniemi, From Apology to Utopia (1989); P Allott, Eunomia (1990); and H Charlesworth & C Chinkin, The Boundaries of International Law (2000).


example, its European provenance, and its emphasis on preserving the sovereignty of States within their territorial boundaries. The latter phenomenon has had a particular impact on IHL, as the majority of conflicts in the world today are internal in nature21^ and there are few applicable provisions.27 IHL, however, unlike other areas of international law, has a distinct tradition in which military considerations have been a dominating and restricting influence on its development and content. The historical indifference to women, and their particular experiences of armed conflict, has been marked. There is, however, increasing recognition of the burden borne by women in armed conflict.28 In many ways, whether as combatants or civilians, women share many of the same difficulties as men. They are targeted with the same weapons, share the dislocation attendant on armed conflict, and the loss of shelter, shortage of medical and food supplies that it entails. There is now overwhelming evidence, however, that women experience armed conflict in a different way to men. This distinctive experience, although its effects differ widely across cultures depending upon the position of women in particular societies, is related to the vulnerability of women when armed conflict breaks out. This vulnerability of women is evident, for example, in the appalling statistics of violence, including sexual violence, against women during times of

26

27

28

See ] Balint, "An Empirical Study of Conflict, Conflict Victimization, and Legal Redress", in C Joyner & M Bassiouni eds, Reining in Impunity for International Crimes and Serious Violations of Fundamental Human rights: Proceedings of the Siracusa Conference, 17-21 Sep 1998 (1998) 101 at 107 (stating that since in the period from the end of the Second World War until 1996, there have been at least 220 non-international armed conflicts, that may have led to 86 million deaths). For a discussion of the nature of modern conflicts and they challenges they pose to IHL, see Ignatieff, supra note 12, at 125 ff. See Green supra note 2, at 303-317 (for a discussion of IHL and non-international armed conflicts). In more recent times there have been developments in the legal regime applicable to international armed conflicts and IHL, particularly in the context of war crimes. See for example, T Meron, "International Criminalization of Internal Atrocities", (1995) 89 AJIL 554. See for example, Violence Against Women, statement by the ICRC to Commission on Human Rights 22 Mar-30 Apr 1999, 55th Session Agenda Item 12 (a); Report of the Special Rapporteur on Violence Against Women, Ms Radhika Coomaraswamy, UN Doc E/CN.4/1998/54 (1998) [hereinafter Coomaraswamy 1998 Report]; statement of Renee Guisan, ICRC delegate to the Fourth World Conference on Women, Beijing, Sep 1995, ICRC, ; Fourth World Conference on Women, Action for Equality Development and Peace, Beijing Declaration and Platform for Action, UN Doc A/Conf. 177/20 (1995) [hereinafter Beijing Platform for Action] para 136.


armed unrest.2^ The term "violence against women" is defined in the Beijing Platform for Action as "any act of gender-based violence that results in, or is likely to result in, physical, sexual, or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life ..."3° Violence against women in armed conflict is a manifestation of the universal, unequal, power relations between men and women. Such violence crosses all cultural boundaries and has been consistently unreported and unrecorded, although it has resulted in death and suffering for countless women over the years.^1 This violence, moreover, takes on new dimensions and distinctive patterns in armed conflict. For example, in the conflicts in the former Yugoslavia and Rwanda, mass rape, and many other inhumane acts of sexual violence, were used as a means of warfare to terrorise and humiliate the civilian population, and to further the goal of genocide and ethnic cleansing.^2 These appalling practices, however, should not obscure the impact of sexual violence on individual women. Women are subjected to mistreatment by all participants in armed conflict; by "friendly" and "enemy" forces, by civilian and military personnel, including United Nations peacekeeping forces, who are entrusted with the task of protecting women. The physical and psychological consequences of this widespread abuse in armed conflict has devastating consequences, not only for the women themselves, but all the members of the societies of which they are a part. Undoubtedly, this is one of the most widespread and pervasive effects of armed conflict on women in all cultures and in all conflicts. Violence against women, however, is only one way in which the vulnerability of women manifests itself in armed conflict. The overall experience of

29

30 31

32

See for example, Americas Watch and Women's Rights Project, Untold Terror: Violence Against Women in Peru's Armed Conflict (1992); Amnesty International, Bosnia-Herzegovina: Rape and Sexual Abuse by Armed Forces (1993); Human Rights Watch (Helsinki Watch), War Crimes in Bosnia-Herzegovina, (1993) 18, 163-86; Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, UN Doc S/1994/674 (1994) (considering the issue of rape and sexual assault at paras 58-60 and 232-253); African Rights, Rwanda: Death, Despair and Defiance (rev ed, 1995); Human Rights Watch, Global Report on Women's Human Rights (1995) 100-138 (in relation to sexual assault of refugees and displaced women); Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath (1996) and see the further sources cited infra Chapter 2 notes 37 ff. The Beijing Platform for Action, supra note 28, at para 113. For a graphic account of rape in warfare over the centuries see, S Brownmiller, Against Our Will: Men, Women and Rape (1975) 3-113. See also G Best, "Restraints on War by Land before 1945", in M Howard ed, Restraints on War: Studies in the Limitation of Armed Conflict (1979) 17, 26. See the discussion of sexual violence as crimes against humanity and genocide infra Chapter 6.


women affected by armed conflict is a product of their unequal status generally. Nowhere are women full participants in society.33 Women are disadvantaged in access to education, health care, and are considerably less mobile because of their traditional role in caring for others.34 Seventy percent of the world's population living in poverty are women.35 Their work remains grossly unpaid, unrecognised, and undervalued.^ Women the world over are disadvantaged in terms of education, constituting about two thirds of the illiterate population of the world3^ and have more limited access than men to income, property, and credit. 38 In addition, political opportunities for women are severely limited. 39 They are generally denied access to power structures, and participation in decisionmaking at all levels, and this exclusion carries through into the context of armed conflict.1^0 Therefore, women are unable to draw attention to the particular difficulties they experience in conflict situations and, moreover, are powerless to recommend any preventative action in response. The low status of women in society is reflected in their treatment by the law, in property rights, rights of inheritance, laws related to marriage and divorce, and rights to acquire nationality or property or seek employment. Given this lack of full participation in society, and their gender and biological roles, it is inevitable that armed conflict impacts extremely harshly on women. Because of their reproductive roles, they are particularly affected by shortages of food, medicine, and medical assistance. Women, moreover, lack the resources, education or skills to

33

34 35

36 37 38 39 40

See generally, United Nations Development Programme (UNDP), Human Development Report (1995). See also for example, L Bonnerjea, Shaming the World: The Needs of Women Refugees, Change (1995) 9. See ICRC, Women and War (1995) 7. The feminisation of poverty was a key area of concern at the Beijing Conference, Beijing Platform for Action, supra note 28, at 49-59; see also African Platform for Action Adopted by the Fifth Regional Conference on Women held at Dakar from 16 to 23 November 1994, UN Doc E/CN.6/1995/5/Add.2 (29 Dec 1994) para 25; Second Review and Appraisal of the Implementation of the Nairobi Forward-Looking Strategies for the Advancement of Women, Report of the Secretary General, UN Doc E/CN.6/1995/3/Add.l (24 Feb 1995) para 92. See UNDP note 33, at 97, (estimating women's invisible annual contribution to the global economy at eleven trillion dollars). ] Seager, The State of Women in the World Atlas (2nd ed, 1997) 121. Ibid at 120. See UNDP, *«/>« note 33, at 41-42. See for example, in the context of Palestinian women, H Charlesworth, "International Human Rights Law: Prospects and Problems for Palestinian Women", in S Bowen ed, Human Rights: Self Determination and Political Change in the Occupied Palestinian Territories (1997) 79, 81-85; see also "Stop Press: Emergency Appeal, Women in Somalia", 3/4 Changing the World 8 (1992); and T Looby, "Women in Bougainville", (1992) 42 Refractory Girl 66-67.


deal with the conditions that result from armed conflict, and in the absence of the male of the family, they frequently experience great difficulty in supporting themselves and their families. 41 Despite the efforts to improve the protection of general categories of victims and children, and increasing recognition that armed conflict has this differing impact on women, there has been, to date, no serious attempt to address in any comprehensive way the deficiencies of IHL from their perspective. They are assumed to be adequately covered by the on-going strategies to improve the protections for combatants, civilians and children. Proponents of IHL argue that not only does the system require that its general rules be applied without discrimination,42 but that there are special provisions dealing with the particular needs of women. The requirement of non-discrimination in the application of the provisions relating to all civilians and combatants disguises the reality of a regime that reflects a male perspective of armed conflict. To some extent, IHL does recognise that women are peculiarly vulnerable during times of armed conflict. It does so through the so-called regime of "special" protection, which provides safeguards for women when pregnant, and as mothers, maternity cases, and sexual beings.^3 Specific provisions for women are a common phenomenon in both municipal and international law. It is one way of recognising the particular situation of women. Such a strategy, however, not only reinforces stereotypes of women, but fails to challenge the underlying systemic discrimination that women experience in all societies. Moreover, this approach can operate in other ways to the disadvantage of women. The difficulties are well illustrated by the regime governing women and human rights. The ready response to claims that not enough is being done in relation to the human rights of women is that there is a special treaty devoted to these concerns; the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).44 There is no recognition, however, that there are distinctive problems with CEDAW that are not associated with more mainstream documents.^5

41 42 43 44 45

See Human Rights Watch, supra note 29, at 23. See the discussion of the relevant conventional provisions infra Chapter 3 notes 43 ff and accompanying text. See infra Chapter 3 for a detailed discussion of this regime and see also, Tabory supra note 2; and Krill, supra note 2. Convention on the Elimination of all Forms of Discrimination Against Women, 18 Dec 1979 (1325 UNTS 378). See for example, B Clark, "The Vienna Reservations Regime and the Convention on Discrimination Against Women", (1985) 85 AJIL 281.

10


A similar debate manifests itself in the context of IHL in allegations that women are already well provided for in that they receive protection over and above the general population. The ICRC, from time to time, has recognised that women need extra protections in armed conflict, but has not always argued the case in a way that avoids this impression of favourable treatment. For example, the ICRC delegate at the Diplomatic Conference that adopted Protocol I, stated: At the present time, opinions were divided regarding the special protection to be given to women in armed conflicts. Some people considered that the existing provisions of international law, and in particular those of the conventions and the instruments relating to human rights, were sufficient; others, like the ICRC, held that since the civilian population and especially women were becoming increasingly involved in present-day conflicts, it was necessary to give them greater protection in relation to that enjoyed by men placed in similar situations. " This appears an unsustainable argument and discriminatory on its face. Another approach, and one that more accurately reflects the true position, is that IHL is not of general application, its design reflects a certain male experience. Moreover, the special provisions in relation to women take the male perception of not only what it is to be a woman, but also what it is about women that warrants protection. In doing so, a picture of women is presented that is distorted and far from the reality of their lives. Therefore, what is overlooked in analyses of IHL is the impact of gender.47 Gender, in the sense of the social construction of differences between men and women, and what it is to be "feminine" and "masculine", is not a factor that has traditionally been regarded as relevant in discussions of IHL. Its impact is not restricted to women. To the extent that IHL regulates armed conflict, it does so

46 47

See Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva 1974-75, CDH/III/SR.44 para 57. "Gender" has been described as the "socially constructed roles of women and men ascribed to them on the basis of their sex, whereas the term "sex" refers to biological and physical characteristics. Gender roles depend on a particular socio-economic, political, and cultural context, and are affected by other factors, including age, race, class and ethnicity. Gender roles are learned, and vary widely within and between cultures." Implementation of the Outcome of The Fourth World Conference on Women., UN Doc A/51/322 (1996) paras 7-14. For a description of what is meant by the gendered nature of law, see M Davies, "Taking the Inside Out: Sex and Gender in the Legal Subject", in N Naffine & R Owens eds, Sexing the Subject of Law (1997) 25, 28-31; and for an argument that sex is also a product of culture, see Davies, ibid.


11

from the perspective of a particular type of male: how this individual experiences armed conflict and his needs. The majority of male victims of armed conflict, be they combatants or civilians, would fail to recognise themselves in that male norm.48 IHL, in common with law generally, is a thoroughly gendered system. It accepts the social construction of the masculine and feminine as a given. Thus, certain characteristics of men and women are assumed and serve as a basis on which to construct the regime. Built into the rules is the preference historically accorded to the characteristics that represent the masculine. The foundations of IHL are "structures of systemic inequality and discrimination against women."49 IHL both perpetuates and further constructs a particular vision of men and women. An example of this process is the concept of "honour" in IHL. The honour of men and women is taken as natural. Its characteristics for men are: bravery, fortitude, self-reliance; for women: chastity, modesty, frailty and dependence. The rules of IHL are then fashioned on these assumed characteristics. Gender is a useful vehicle for the analysis of law. What it does is demonstrate how the law creates and reinforces a certain type of gender differentiation. Examining IHL from the perspective of gender, and how it constructs the category "woman", avoids the trap of assuming a pre-existing category of woman. Women who do not fit the model are not automatically rendered invisible in the process. Merely to identify the characteristics of the gender man and woman in the rules of IHL is thus not a particularly controversial undertaking. On the other hand, what conclusions are drawn from this process, and how they are applied in formulating changes to the law, is fraught with both theoretical and practical difficulties. It is when we reach the stage of denouncing the law as not reflecting the needs and aspirations of women and put forward proposals for reform, that our project becomes vulnerable to the charge of erasing differences between women by creating a universal category of woman.50 Any critique of the law must not assume a universal experience of warfare by women. To talk in terms of women's experience of warfare, as the basis for a

48

49

50

See J Gardam, "An Alien's Encounter with the Law of Armed Conflict", in N Naffine & R Owens eds, Sexing the Subject ofLaw (1977) 233; and J Tickner, Gender in International Relations: Feminist Perspectives on Achieving Global Security (1992) 6-7, 40. See Report of the Expert Group Meeting, "Promoting Women's Enjoyment of their Economic and Social Rights", Abo/Turku, FinUnd, UN Doc EGM/WESR/1997/Report (Dec 1997) Preface (making this argument in the context of the human rights of women generally). For a helpful explanation of the terms essentialism, biologism, naturalism and universalism, as used by feminist commentators, see E Grosz, "Conclusion: A Note on Essentialism and Difference", in S Gunew ed, Feminist Knowledge Critique and Construct (1990) 332 at 333-5.

12


consideration of the inadequacies of the existing legal regime, recalls one of the major challenges posed to Western feminist scholarship in the area of human rights, that is, the enormous difficulties in postulating a common experience of all women across cultural boundaries.51 Perhaps the task of finding some aspects of a shared experience of women is somewhat easier in the area of armed conflict than it has proved to be in the area of human rights and international law generally. So, for example, although rape in warfare will impact differently on women depending on its cultural significance, it must surely be experienced by all women as a terrifying, violent, and painful event. The same is true for the physical and emotional effects of being subjected to direct or indiscriminate armed attacks; to starvation; to the loss of physical shelter; and to other hardships imposed by armed conflict. The question of difference between women is particularly problematic in international law. Although it must be confronted by commentators in the context of municipal law, international law lays claim to relevance to all peoples across all cultural divides. The challenge of formulating a category of "woman", however, cannot be permanently circumvented if concrete changes to the law are advocated. There are indications of change in the traditional lack of response to women and armed conflict. The majority of the developments have been in the context of enforcement of re-interpreted norms of IHL so as to deal with sexual violence against women. It was the conflict in the former Yugoslavia that galvanised the international community into action, and led to other developments in the law of sexual violence against women in armed conflict, most of which can be traced to the work of the two UN ad hoc war crimes tribunals: the International Criminal Tribunal for the Former Yugoslavia (ICTY)52 and the International Criminal Tribunal for Rwanda (ICTR).53 The focus on sexual violence in these disparate bodies contributed to the end of the invisibility of women and sexual violence, and led to important new developments in the interpretation of relevant IHL norms, particularly the recognition of rape as a grave breach of IHL.

51

52 53

See C Bulbeck, Re-Orienting Western Feminisms: Women's Diversity in a Postcolonial World (1998), C Mohanty, "Under Western Eyes: Feminist Scholarship and Colonial Discourses", in C Mohanty et al. eds, Third World Women and the Politics of Feminism (1991) 51; I Gunning, "Arrogant Perception, World Travelling and Multicultural Feminism: the Case of Female Genital Surgeries", (1991/92) 23 Colum HRLR 189; and K Engle, "Female Subjects of Public International Law: Human Rights and the Exotic Other Female", (1992) 26 NELR 1509. The ICTY was established in 1993 by the UN Security Council. See UN Doc S/RES/808 (Feb 1993); and S/RES/827 (May 1993). See the further discussion of the ICTY infra Chapter 6. The ICTR was established in 1994 by the UN Security Council. See UN Doc S/RES/955 (Nov 1994). See the further discussion of the ICTR infra Chapter 6.


13

Moreover, both the Statute of the ICTY and the Statute of the ICTR, for the first time, recognise rape as a crime against humanity.54 In addition the Statute of the ICTR expressly designates rape, and some other forms of sexual violence, as violations of Common Article 3 to the 1949 Geneva Conventions, and Protocol 11.55 This criminalisation of activities in non-international armed conflicts is of great significance generally in IHL.56 In a continuation of this trend, the Rome Statute of the International Criminal Court, adopted in 1998, recognises rape and a range of other gender specific crimes as offences over which the Court will have jurisdiction.57 Although the precedential value of the ad hoc tribunals is limited both by their origin as Security Council measures and by their geographical scope, the normative effect of these initiatives is much more widespread. It remains to be seen whether the trend continues of taking sexual violence against women in armed conflict seriously. Much of the impetus for these trends can be traced to the women's human rights movement. In more recent years, the movement for recognition of the equal rights of women has been exerting its influence on human rights law, and to some effect.58 In 1979, for example, the international community adopted CEDAW.59 Moreover, an Optional Protocol to CEDAW was adopted by the UN General Assembly in 1999, and allows for individual and group complaints to the Committee on the Elimination of all Forms of Discrimination against Women.6° Governmental and non-governmental organisations have increasingly focused on

54

55 56 57

58

59 60

Art 5 Annex to the Secretary-General's Report on Aspects of Establishing an International Tribunalfor the Prosecution of Persons Responsible for Serious Violations of International Humanitarian law Committed in the Territory of the Former Yugoslavia (Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc S/25704 (1993, as amended 13 May 1998), UN [hereinafter Statute of the ICTY]; and Art 3, Statute of the International Criminal Tribunalfor Rwanda, UN Doc S/RES/955 (8 Nov 1994), Annex, UN [hereinafter Statute of the ICTR]. Art 4 Statute of the ICTR. See Meron, note 27. Rome Statute of the International Criminal Court, UN Doc A/CONF. 183/9 (17 July 1998) [hereinafter Statute of the ICC]. The Statute was adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998. For an overview of the achievements of the last decade, see C Chinkin, "Feminist Interventions in International Law: Reflections on the Past and Strategies for the Future", (1997) 19 Adel LR 1 at 15-18. See supra note 44. See UN Doc A/RES/54/4 (15 Oct 1999). The text of the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women is annexed thereto.

14


the issue of women's human rights. As a result, a wide range of studies, reports, and recommendations, on various aspects of women and human rights is available.1^1 The topic of women is firmly established on the international human rights agenda. It would be misleading, however, to represent human rights law as a satisfactory regime from the perspective of women. Commentators have convincingly demonstrated the limitations of the existing body of human rights law to adequately take account of the reality of women's experience of the world. 62 Nevertheless, the impact of this attention to the human rights of women has considerable implications for IHL. The problem of violence against women, and strategies to contain it, has been the focus of much of the work of human rights agencies concerned with women. This has led to a consideration of these activities in armed conflict, as so much of the violence against women occurs during such times. 63 Of particular significance is the Fourth World Conference on Women, held at Beijing in 1995, which recognised the seriousness of armed conflict and its impact on the lives of women. 64 The Beijing Declaration referred to the determination of the participating States to "ensure respect for international law, including humanitarian law, in order to protect women and girls in particular". 65 The Platform for Action identified women and armed conflict as one of the twelve critical areas of concern to be addressed by Member States, the international community and civil society.66 The process of identifying women's particular experiences and demonstrating the failure of the law to acknowledge them, thus is significantly more advanced in human rights bodies than in organisations focussing solely on armed

61

62

63

64

65 66

See, for example, Women's Human Rights Resources, University of Toronto (for a comprehensive listing of articles, documents etc on the human rights of women). See for example, C Bunch, "Women's Rights as Human Rights: Towards a Re-Vision of Human Rights", (1990) 12 HRQ486; H Charlesworth, "What are Women's Human Rights?", in R Cook ed, Human Rights of Women: National and International Perspectives (1994) 58. See for example, Coomaraswamy 1998 Report, supra note 28; see also para38 of the Vienna Declaration and Program ofAction, UN Doc A/Conf. 157/24 (13 Oct 1993) pt 1; Declaration on the Elimination of Violence Against Women, UN Doc A/48/104 (23 Feb 1994). Beijing Platform for Action, supra note 28. In June 2000 the General Assembly held a special five day session to review progress under the Beijing Platform for Action. See the further discussion of the review session infra Chapter 5 note 216 ff and accompanying text. Ibid, at para 33. Ibid, at Strategic Objective E, paras 131-49. See generally ] Gardam & M Jarvis, "Protecting Women in Armed Conflict: An Assessment of the Beijing Platform for Action", (2000) 32 Col HRLRWX.


15

conflict. Of course action plans, recommendations, and proposals need to be implemented to be of lasting significance. Progress is slow and at times disheartening.67 There are, however, positive signs. An acknowledgment of the seriousness of sexual violence against women in armed conflict can be discerned in the work of the ICRC. The protection of women victims of conflict has always been part of the mandate of the ICRC. Traditionally, however, women have been subsumed under the general category of civilians, or as a separate category; "women and children". This has occurred despite the fact that the needs of these various categories of victims are not identical. Over the years, the ICRC has made some attempts to mitigate the horrors of conflict for women.1'8 For example, efforts were made during the Second World War to ensure the lawful treatment of women prisoners of war.® In the period after the Second World War, from time to time, the ICRC made efforts to ensure the humane treatment of women in various conflict situations.70 In the context of sexual violence against women, the silence was deafening, despite the appalling reality of this practice in all armed struggles. The ICRC however, reacted rapidly and positively in the context of the rape of women in the former Yugoslavia. The ICRC, early on in the conflict, declared that the grave breach of the 1949 Geneva Conventions constituted by "wilfully causing great suffering or serious injury to body and health", "obviously covers not only rape but also any other attack on a woman's dignity".71 The increasing recognition by the ICRC that women and armed conflict pose distinctive challenges to IHL has continued. For example, in 1993, the Final Declaration of the International Conference for the Protection of War Victims, declared its alarm at "the marked increase in acts of sexual violence directed notably against women and children" and reiterated "that such acts constitute grave breaches of international humanitarian law."72 The 26 tn International Conference of the Red Cross and Red Crescent, adopted by consensus a resolution dealing separately with sexual violence against women.7^

67 68 69 70 71 72 73

See Chinkin, supra note 58, at 13 (for an assessment of what has been achieved by feminists in the context of international law). See ICRC, Women and War, supra note 34. See Krill, supra note 2, at 356. Ibid, at 357. ICRC, Update on Aide, memoire of 3 Dec 1992. Para 13, Final Declaration of the International Conference for the Protection of War Victims, reprinted in (1993) 296 ICCR 377. Resolution 2 B, Final Declaration of the International Conference for the Protection of War Victims, reprinted in (1996) 310 ICCR 63.

16


The resolution condemned this practice, reaffirmed rape in the conduct of armed conflict as a war crime, and highlighted the importance of enforcement of the relevant provisions and the need to train those involved in such processes. These developments in relation to sexual violence against women are of undoubted significance. The focus on sexual violence has tended to obscure other important aspects of women's experience of armed conflict that are as yet inadequately recognised and acknowledged. There are, however, the beginnings of a broader approach. For example, in 1998, the ICRC initiated a study to examine how women are affected by armed conflict around the world. 7 4 The study is to form the basis of guidelines for the activities of the organisation in relation to the protection and assistance of women and children in armed conflict.7^ Moreover, at the 2 7 * International Red Cross and Red Crescent Conference in 1999, the ICRC made a four year pledge to emphasise in its activities the need to ensure "respect" for women and girl children and to acknowledge their special needs in relation to health and assistance.7^ The question of women and armed conflict appears to be gaining recognition in the organisation as a separate topic requiring the development of specific strategies. Although women's perspective on armed conflict remains largely unarticulated and unacknowledged in any positive sense, their experiences frequently are appropriated in the interests of the warring factions. The Special Rapporteur on Violence against Women reports: Rape is used by both sides as a symbolic act. As depicted by Second World War posters in which the rape of a women was used to evoke the image of the 'rape' of France, rape is used by one side to demoralize the other. The rape of 'their' women is then used to increase the sentiments against the enemy and further demonize them.7'7 Human Rights Watch describes the contribution of widespread propaganda campaigns, portraying negative and stereotypical images of Tutsi women, to

74

75 76

77

See Statement by Mr Jacques Forster, Vice-president of the International Committee of the Red Cross (ICRC) New York 9 June 2000 23rd Session of the United Nations General Assembly: "Women 2000: Gender Equality, Development and Peace for the Twenty-first Century", New York 5-9 June 2000. Ibid. See also update on ICRC's Initiative to better respond to the needs and resources of women affected by armed conflict 29 Oct 1999, ICRC . See Pledge Statement of the ICRC at the 27th International Conference of the Red Cross and Red Crescent "To promote the respect of women in armed conflicts", (3 Nov 1999), ICRC . Coomaraswamy 1998 Report, supra note 28, pt I, para 6.


17

the ensuing genocide and mass sexual violence against Tutsi women in Rwanda. 78 This stereotypical representation of women is also used to their disadvantage in their attempts to achieve equality in the military For example, one of the arguments against women serving in combat roles, voiced during the Persian Gulf conflict (1990-91), was that the American public could not tolerate the image of women killed and captured in combat.^ To date, therefore, although there has been progress in recognising the impact of armed conflict on women, this has not been reflected in IHL, other than in the context of sexual violence. The reforms to IHL that are required to achieve a measure of equality for women go far beyond this. After years on the fringe of human rights law, it is nowadays increasingly respectable to refer to women and human rights as a separate topic within the mainstream of international law. Although these concerns have impacted to some extent on IHL, the identification of women's human rights as a topic of concern is not reflected by a similar recognition that women and IHL warrant a separate focus. The structure of the book is a follows. Chapter Two describes what happens to women in armed conflict. Armed conflict for the purposes of the discussion in this Chapter is defined in the broadest sense, and in no way reflects the categorisation of conflicts found in IHL. 8 0 So we discuss the experience of women in international and non-international armed conflicts, howsoever characterised, be they long-standing, sporadic, ethnic or nationalistic in origin. The coverage of Chapter Three caused us some problems. In any work that purports to deal with IHL and women, the provisions dealing specifically with women are of primary importance. One of our fundamental critiques of IHL, however, is that the rules that are theoretically equally applicable to combatants and civilians in general, are gendered, in that they take a certain male view of armed conflict as their norm. To understand our criticisms the reader, therefore, needs some appreciation of the broad content of the general provisions. The solution we have adopted is to describe the historical development and current content of the rules of IHL that deal specifically with women. We also provide an overview of the field of application of IHL and selected general norms that are of particular significance for women. Readers are then referred to the specialist works on IHL if they require more information. This Chapter also considers war crimes,

78 79 80

Human Rights Watch, supra note 29, 15-19. See the further discussion infra Chapter 2. See J Milko, "Beyond the Persian Gulf Crisis: Expanding the Role of Servicewomen in the US Military", (1992) 41 Am ULR 1301, 1321-1322. See E Kwakwa, The International Law of Armed Conflict: Personal and Material Fields of Application (1992).

18


crimes against humanity and genocide, to lay the groundwork for the discussion in Chapter 6. The development of crimes against humanity, although no longer limited to armed conflict situations, is linked to IHL. 81 Genocide, in comparison has had a separate development through the United Nations system.82 Chapter Four draws on the detail of Chapters Two and Three and examines the extent to which the regime of IHL addresses the experience of women of armed conflict. Having identified a significant dissonance between the two, we then canvass explanations for the limitations of the law. Although this work focuses on IHL, the reality of current developments in the context of law and the protection of women in armed conflict would be obscured without a consideration of initiatives in other fora that focus on women. Their impact on IHL is increasingly apparent, particularly in the context of sexual violence against women. This is the theme of Chapter Five. Some of the work of these bodies will find its way into human rights documents rather than IHL, or become part of the growing body of soft norms in this area. The work of such bodies assist in understanding the complexities involved in the analysis of why real advances in the protections for women in armed conflict are so difficult to achieve. Chapter Six extends the process of critical analysis that we undertook in relation to the substantive norms of IHL into the area of redress for victims of armed conflict. Chapter Seven contains proposals for further development of protections for women affected by armed conflict. As one of our major criticisms of IHL is its unrealistic boundaries, we were at some pains to avoid repeating this mistake in this work. Our suggestions therefore are broad in character and the fact that they identify the human rights framework as the most promising way forward, perhaps is a fitting conclusion to a work that argues that IHL, in the final analysis, has failed women.

81 82

See E Greppi, "The Evolution of Individual Criminal Responsibility under International Law", (1999) 81 IMC 531. See generally, M Roberge, "Jurisdiction of the ad hoc Tribunals for the Former Yugoslavia and Rwanda over Crimes against Humanity and Genocide", (1997) 321 IRRC 651.

CHAPTER 2 THE IMPACT OF ARMED CONFLICT ON WOMEN

1.

Introduction

One of our major arguments in this work is that women experience armed conflict differently from men. This is a difficult argument to establish given the paucity of sex differentiated data in relation to the impact of armed conflict.1 Statistics on sexual violence against women in warfare are increasingly available.2 The same is not true, however, for other distinctive ways in which women suffer as a result of armed conflict. This is not surprising, as traditionally men provide the reports and documentation associated with armed conflict. In this process, invariably women are subsumed under general categories such as civilians and combatants. As a consequence, the numerous aspects of women's lives that are detrimentally affected by armed conflict remain largely undocumented in mainstream accounts. Increasingly, however, it is possible to piece together a picture that more accurately presents how women's lives are affected by armed conflict.3 This is the aim of this Chapter. Although the majority of women experience armed conflict as civilians, there are increasing numbers of women combatants, and our discussion covers the situation of both these groups of women. 4 Any assessment of the effect of armed conflict on women requires consideration of a wide variety of factors, the relevance and impact of which differ considerably between cultures and individual women in those cultures. Many factors, such as race, ethnicity, nationality, class, age, disability and sexuality, in addition to gender, will affect a woman's experience of armed conflict.5 It is easy to over-simplify the issues, and to misinterpret the impact on women of events

1 2 3

4 5

See S Forbes-Martin, Refugee Women (1992) 13-14. See for example, the sources cited infra notes 62-97. For example, there are growing numbers of oral histories of women's experience of armed conflict, see for example, O Bennett et al. eds, Arms To Fight, Arms to Protect. Women Speak out About Conflict (1995) [hereinafter Arms to Fight}. See for example, A Helland et al., Women and Armed Conflicts: A Study for the Norwegian Ministry of Foreign Affairs (1999) 7, 18-23. Western feminists have been criticised for attempting to "essentialise" the experience of all women based on their gender, without regard to other factors that impact upon their lives. See C Mohanty, "Under Western Eyes: Feminist Scholarship and Colonial Discourses", in C Mohanty et al. eds, Third World Women and the Politics of Feminism (1991) 51; and T Higgins, "And-Essentialism, Relativism, and Human Rights", (1996) 19 Harv Women's LJ 89.

19

20

The Impact of Armed Conflict on Women

that take place in conflict situations. Nevertheless, it is possible to identify some common themes. In order to demonstrate the reality of armed conflict for women, we take a broad view of the impact of these events on their lives. The period of hostilities, with its attendant death and injury, is the obvious starting point for any consideration of the effects of armed conflict. The post-conflict period, where women frequently constitute the majority of the population, also presents distinctive challenges for women.*> Because of their role as combatants, historically men have been the primary victims of military operations. This is no longer the case. Civil wars are the predominant form of armed conflict in the world today. 7 In such struggles, communities become the battle field, and current figures suggest that civilians account for over ninety percent of casualties resulting from armed conflict.8 Such a development has serious ramifications for women who are most likely to experience conflict as part of the civilian population. Traditionally, emphasis has been placed on the suffering and heroism of men. The glorification of the combatant is an integral part of the culture of warfare.? Generally the trauma women experience as a result of armed conflict is disregarded. When attention is paid to women in armed conflict it is frequently exploitative and damaging to the women concerned. 10 Armed conflict is invariably accompanied by the disintegration of societal structures. The extent to which victims cope with its attendant disruption largely depends upon the position that they occupy in society. Those who are vulnerable will be the most detrimentally affected. One of the most significant factors leading to the disproportionate impact of armed conflict on women is the endemic discrimination that they experience in all societies. ] 1 The dominant role that men play in society generally equips

6

7 8 9

10 11

Interview with Sochua Mu Leiper, Director of Khemara, in H O'Connell ed, Women and Conflict (1993) 45. See also, K Mardy, "Project against Domestic Violence, Cambodia", in On the Record, Women of Southeast Asia Fight Violence (8 Mar 1999) 5, pt 3 (estimating that women comprise 60 percent of the population following the Khmer Rouge regime in Cambodia); Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath (1996) [hereinafter Shattered Lives] 2 (estimating that following the 1994 conflict in Rwanda, women constitute 70% of the population). See supra Chapter 1 note 27. See supra Chapter 1 note 7. See J Gardam, "Gender and Non-Combatant Immunity", (1994) 3 Transnational Law and Contemporary Problems 345, 348-9; and C Enloe, Does Khaki Become You! The Militarization of Women's Lives (1983) 166. See the further discussion infra note 146 and accompanying text. For an example of the way in which endemic discrimination against women manifests itself during armed conflict, see the discussion infra notes 140 ff and accompanying text.


21

them to cope with the deprivations accompanying armed conflict more effectively than women. The Beijing Platform for Action recognises that "[wjhile entire communities suffer the consequences of armed conflict and terrorism, women and girls are particularly affected because of their status in society and their sex." 12 Armed conflict exacerbates existing inequalities experienced globally by women and, moreover, may lead to new forms of discrimination against women.

2.

The Distinctive Experiences of Women Affected by Armed Conflict

a.

The Deliberate Killing of Civilian Women

Chivalric ideals frequently lead to perceptions that women and children will not be directly targeted during conflict. In some cases the death toll from armed conflict is higher for men than for women, but this is not universally true. Acts of genocide, such as the "Final Solution" implemented by the Nazis in Europe during World War II, target men, women, children, and the elderly without distinction. Indeed, when a strategy of deliberate extermination is being implemented, women are often amongst the first to die. Pregnant women were singled out for death during the selections conducted by the Nazis, as the carriers of the next generation of Jews.1 ^ Direct targeting of women has not been limited to the Holocaust. Massacres primarily involving women have been reported in many conflicts.14 Particularly during internal conflicts, women may be targeted as a consequence of the positions they hold in society or their specific skills. Amnesty International has documented how women from a broad range of professions, such as medicine, teaching, journalism, law, the judiciary, and political reformers, have been singled out for attack in conflicts around the world. 1 ' Women are

12

13 14

15

Fourth World Conference on Women, Action for Equality Development and Peace, Beijing Declaration and Platform for Action, UN Doc A/Conf. 177/20 (1995) [hereinafter Beijing Platform for Action] para 134. See F Karay, "Women in the Forced-Labor Camps", in D Ofer & L Weitzman eds, Women in the Holocaust (1998) 285 at 298. See for example, B Goldblatt & S Meinjtes, "South African Women Demand the Truth", in M Turshen & C Twagiramariya eds, What Women Do in Wartime: Gender and Conflict in Africa (1998) [hereinafter What Women do in Wartime] 27 at 47 (reporting that of the 128 people that died during the Biopatong Massacre of 1992 in South Africa, 48 were men, and 80 were women); A Jones, "Gender and Ethnic Conflict in Ex-Yugoslavia", (1994) 17(1) Ethnic and Racial Studies 115 at 119-120 (citing the massacre of 100 Muslim women in the town of Biscani in July 1992, and the targeting of Serbian women and children by Croatian forces in Goradze in August 1992). See Amnesty International, Women in the Frontline (1991) [hereinafter Women in the Frontline\ 9-13-

22


also vulnerable where they are involved in community leadership, or in running community support programs. For example, several women leaders of community organisations were murdered by the Shining Path in Peru.11' Moreover, women are often murdered when they are perceived as having feminist sympathies, or as failing to conform to the gender roles required of them. The treatment of women in Afghanistan, by the Taliban regime, and in Algeria, by the armed Islamic opposition, are examples of such behaviour.17 In addition to being targeted in their own right, women are frequently attacked because of their relationships with men. Women have been killed, seriously injured, or tortured, as a result of the political activities of their male relatives or associates.18 It is not just treatment by opposition forces that women have to fear. Parties to the conflict frequently locate military targets in or around civilian objects, in an attempt to shield them from military attack. Civilians are also used as human shields. Such tactics generally do not prevent attacks, but instead result in increased civilian casualties.19 There is also evidence, particularly in civil conflicts, of the use of women and children as "cannon fodder" by "friendly" forces.20 The effects of being targeted in armed conflict are distinctive for women. Women may take fewer precautions in such situations, relying upon misconceptions that they are not as vulnerable as men. 21 The traditional role of women as care-givers for the young, the elderly, the sick, or the wounded, limits their ability to react to the immediate dangers of armed attacks. Moreover, States frequently respond differently to the deaths of women and men. For example,

16

17 18 19

20 21

See C Schmidt, "Peru: The Government, the Rebels, and the Women in Between", (1992) 3(1) Ms 14 (describing the murder of Maria Elena Moyano, deputy mayor of Villa El Salvador, Lima). See also, C Moorehead, Hostage to a Male Agenda, Index on Censorship 24(4), (1995) 64, 65. See for example, Report of the Special Rapporteur on Violence against Women, Ms Radhika Coomaraswamy, UN Doc E/CN.4/1998/54 (1998) [hereinafter Coomaraswamy 1998 Report] pt 1A. See Women in the Frontline, supra note 15, at 14. See UN Doc S/16649 (28 June 1984) (in relation to the Iran/Iraq war); and US Department of Defence, "Report to Congress on the Conduct of the Persian Gulf War Appendix on the Role of the Law of War, April 10", (1992) 31 ILM 612 at 625. See for example, "Sri Lanka's Under-age War", (26 Aug 1995) 336(7926) Economist 26 (reporting the use of women and children as cannon fodder in Sri Lanka). See for example, L Weitzman & D Ofer, "The Role of Gender in the Holocaust", in D Ofer & L Weitzman eds, Women in the Holocaust (1998) 1 at 5 (reporting the failure of women to make plans to emigrate, hide or escape, prior to the Holocaust, with the result that women became disproportionate victims of the Nazi arrests). See also G Kirshenbaum, "Jadranka Cigelj and Nusreta Sivac", (1997) 7(1) Ms 64 at 66 (regarding similar misconceptions held by women during the initial phases of the Bosnian war).


23

despite the large number of women killed in the Biopatong massacre in South Africa, only the families of the men that died were provided with legal assistance to pursue claims for compensation. 22 In recent years, there has been a marked trend towards the proliferation of small arms. Countries without sufficient financial resources to purchase more traditional heavy weaponry, particularly African countries, have become increasingly reliant upon small arms, such as landmines, hand guns, and rifles.2^ Small arms are a major threat to women. During the 1990s, it is estimated that small arms killed three million people and that eight out of every ten of these casualties were women and children.2"^ b.

"Collateral Damage" and Women

Increasingly, civilian casualties outnumber combatant casualties during armed conflict.^ This is a function of the changing nature of warfare, and the use of weapons of an indiscriminate nature. For example, in recent international armed conflicts, the deliberate choice of aerial bombardment as a military strategy has led to significant short and long-term civilian casualties.2(> Generally speaking, women form the majority of the civilian population in times of armed conflict. Thus, it is inevitable that they represent a disproportionate number of the civilian deaths of such conflicts. In many cases, civilians do not have adequate access to appropriate protective equipment such as gas masks, shelters, or other shields, that would mitigate the injuries sustained as a result of armed conflict. A study of fatalities during the 1991-92 conflict in Croatia estimates that sixty-four percent of deaths were civilians and that the majority of these were from head injuries.2? The authors of the

22 23 24 25 26

27

See Goldblatt & Meinjtes, supra note 14, at 47. See D Volman, "The Militarization of Africa", in What Women Do in Wartime, supra note 14, 150 at 154. See "Small Arms: UNICEF Documents Threat to Children" (21 July 1999) UN Wire, . See the sources cited supra Chapter 1 at notes 7, 8. See for example, Human Rights Watch, Needless Deaths in the Gulf War (1991) (detailing civilian casualties from the air campaign conducted by the coalition allies in the Persian Gulf conflict (1990-91); Report on the Human Rights Situation involving Kosovo, Submitted by Mary Robinson, High Commissioner for Human Rights (30 Apr 1999) UNHCHR, ; and id, Civilian Deaths in the NATO Air Campaign (2000) (confirming the large number of civilian casualties resulting from the NATO bombing campaign in Kosovo in 1999). See M Kuzman et al, "Fatalities in the War in Croatia 1991 and 1992: Underlying and External Causes of Death", (1993) 270(5) JAMA 626, 628.

24


study suggest that these casualties could have been reduced by improving civilian access to shelters, and ensuring that protective head equipment was available.28 The impact of landmines on women provides a further example of the gender-differentiated consequences of armed conflict. Despite intensified international efforts to eradicate landmines, they remain a serious humanitarian problem, particularly in civil conflicts. Civilians frequently constitute the majority of the victims of these indiscriminate weapons. 29 The vulnerability of women to death or injury from landmines depends, to a large extent, upon the division of labour in a particular country, and the placement of the mines. Figures from countries such as Cambodia, and Afghanistan, tend to suggest that more men than women are injured by landmines.3° However, some caution has been urged with respect to these figures. There is evidence to suggest that, as a result of their lower body mass, women are more likely than men to die from landmine injuries. Moreover, men are more likely than women to receive emergency medical treatment. Deaths are generally not recorded in the figures — only injuries. In addition, for a variety of reasons, men amputees may be more visible in communities than women amputees. These phenomena are undoubtedly reflected in the statistics.^1 There are other gender-differentiated consequences of landmines. The presence of landmines hinders the return of refugees, a factor that is most likely to affect women and children, as they constitute the majority of the world's refugee population.^ 2 Moreover, the high level of illiteracy amongst women in many countries severely affected by landmines hampers the effectiveness of signs warning of their presence. The use of other weapons, such as certain chemical weapons, can have particularly detrimental effects upon women. In recent times, there is a high level of

28 29

30

31 32

Ibid. See for example, R Gray, Humanitarian Consequences of Mine Usage (1993) 6, 8 (referring to study in Preshawar in 1992 that revealed 85% of wounds were sustained by persons engaged in non-military activities, such as farming, tending cattle, and travelling between villages). Cf I Woodmansey & L Maresca, "The Silent Menace: Landmines in Bosnia Herzegovina", (1 Feb 1998), ICRC (citing ICRC reports that soldiers accounted for 75-8% of land mine victims in Bosnia between March 1992 and December 1995). See ICRC, "Cambodia: Landmines in the Killing Fields: the Carnage Continues", (20 June 1996), ICRC (reporting that women accounted for 4.9% of landmine victims at Mongkol Borei Hospital between 10.1.94 and 30.9.95); and ICRC, "Afghanistan: the Deadly Legacy in Figures", (27 Mar 1996), ICRC (reporting that females over 16 years accounted for 1% of land mine wounds at Quetta ICRC hospital in 1995). See Africa Watch Committee, Land Mines in Angola (1993) 27-28; P Davies, War of the Mines: Cambodia, Landmines and the Impoverishment of a Nation (1994) 21-22. See the discussion of refugee women infra notes 101 ff and accompanying text.


25

abortion amongst Vietnamese women of congenitally defective foetuses, a phenomenon that has been linked to the use of Agent Orange during the Vietnam War. 33 c.

Violence against Women

Violence against women is perhaps one of the clearest examples of how discrimination against women that exists in all societies during peace-time is exacerbated during periods of armed conflict. Violence is widely recognised as one of the most pervasive problems facing women in every country throughout the world, and one of the principal ways by which women are controlled, and patriarchal structures reinforced.3^ Statistics indicate a high probability that a woman will be raped in her lifetime,3^ and domestic violence is reported as a common occurrence by women in almost every country in the world. 36 When conflict breaks out, this violence escalates. Sexual violence against women has been particularly prevalent during armed conflict and takes many forms, including rape,3? forced sexual intercourse or other sexual acts with family members, 38 forced impregnation,3^ forced pregnancy,^0 sexual mutilation, sexual humiliation,^1 medical experimentation on

33 34 35 36 37

38 39

40

41

See I Lourdes Sajor, "Our Common Grounds", in Common Grounds, Violence Against Women in War and Armed Conflict Situations (1998) 1 at 6. See generally, United Nations Declaration on the Elimination of Violence against Women, UN Doc A/RES/48/104 (20 Dec 1993). See J Seager, The State of Women in the World Atlas (1997) 56. Ibid, at 27. See for example, S Brownmiller, Against Our Will: Men, Women and Rape (1975) 31-113; A Stiglmayer, "The War in the Former Yugoslavia", in A Stiglmayer ed, Mass Rape: The War against Women in Bosnia and Herzegovina (1994) [hereinafter Mass Rape] 1; Coomaraswamy 1998 Report, supra note 17, pt IA. See for example, Coomaraswamy 1998 Report, ibid (re Bosnia and Herzegovina, the case of B; and India, the case of Devki Rani Punjab). See for example, A Stiglmayer, "The Rapes in Bosnia-Herzegovina", in Mass Rape, supra note 37, at 131-137; Human Rights Watch, War Crimes in Bosnia Herzegovina, W 7/(1993) 21 (re the occurrence of this crime during conflict in Bosnia); and A Abdel Halim, "Attack with a Friendly Weapon", in What Women Do in Wartime, supra note 14, at 94 (re the occurrence of this crime during conflict in Sudan). See Stiglmayer, ibid; L Pitter & A Stiglmayer, "Will the World Remember? Can the Women Forget", (1993) 3(5) Ms 19 (detailing the practice in the Bosnian conflict of detaining women made pregnant as a result of rape, until abortion was not feasible). See for example M Goldenberg, "Memoirs of Auschwitz Survivors", in D Ofer & L Weitzman eds, Women and the Holocaust (1998) 330-331 (re women being forced to strip naked, and lie on tables, while SS officers jeered and poked the women's genitals with a stick).

26


women's sexual and reproductive organs,^2 forced abortion,^ forced sterilisation,^ forced prostitution,^ being compelled to exchange sexual favours for essential items, 46 being compelled to exchange sexual favours for the return of children,^7 trafficking in women,^8 pornography,^ and forced cohabitation/marriages. 5° The factors motivating these attacks are equally broad.?1 Women are subjected to sexual violence in a multitude of situations, including in detention camps specifically set up for that purpose,?2 while imprisoned,53

42

43 44

45

46

47 48

49 50

51

52

53

See for example, see the discussion infra at note 137 (re the medical experimentation carried out on women by the Nazis), and infra note 132 (re medical experimentation carried out on women in detention during the apartheid years in South Africa). See for example, IWRAW, (1993) 6(3) Women's Watch (re forced late-term abortions in Tibet). See for example, Asia and Pacific Development Centre, Women and Armed Conflict: A Statement on the Situations andforwarding of Recommendations to the 42nd Session of the UN Commission on the Status of Women, New York, 2-13 Mar 1998, 12 and 13 (re forced sterilisation of Tibetan women); and M Sissons, From One Day to Another: Violations of Women's Reproductive and Sexual Rights in East Timor (1997) 19-24 (discussing, inter alia, the use of Depo-Provera on East Timorese Women, and non-consensual tubal ligations). See for example, U Dolgopol & S Paranjape, Comfort Women: An Unfinished Ordeal (1994) (regarding forced prostitution of the "comfort women" by the Japanese Army prior to, and during, World War II). See for example, N Sancho-Liao, '"Clutching a Knifeblade' Human Rights and Development from Asian Women's Perspective", in H O'Connell ed, Women and Conflict (1993) 31 at 34; C Twagiramariya & M Turshen, "The Sexual Politics of Survival in Rwanda", in What Women Do in Wartime, supra note 14, at 101, 109 (for reports of this practice in the Philippines and Rwanda respectively). See also the discussion in Women in the Holocaust, supra note 13 (regarding this practice in the Nazi concentration camps). See for example, Coomaraswamy 1998 Report, supra note 17, at s HID, para 2 (re soldiers kidnapping refugee children and demanding sex from their mothers as ransom). See for example, African Rights, Rwanda: Death, Despair and Defiance (rev ed, 1995) 769 (re reports of the buying and selling of women among the interahamwe during the 1994 conflict in Rwanda); and P Finn, "Sex Slavery Flourishes in Kosovo", (24 Apr 2000) Washington Post Foreign Service Al. See C MacKinnon, "Turning Rape into Pornography: Postmodern Genocide", (1993) 3(4) Ms 2430 (re the conflict in Bosnia). See for example, Shattered Lives, supra note 6, at 56-62 (for reports of women being "rescued" only to become sexual slaves or "wives" of their captors during the 1994 conflict in Rwanda); and L McGrew, "Cambodian Women at Year Zero", (1999) 5(4) On The Record, Women ofSoutheast Asia fight Violence (for an account of forced marriage during the Khmer Rouge era in Cambodia). For a discussion of the factors motivating sexual violence, see Preliminary Report Submitted by the Special Rapporteur on violence against women, its causes and consequences, M. Radhika Coomaraswamy, UN Doc. E/CN.4/1995/42 (22 Nov 1994) [hereinafter Coomaraswamy 1994 Report] paras 274-283. See for example Stiglmayer, supra note 39, at 82, 115-131; Final Report of the Commission ofExperts Established Pursuant to Security Council Resolution 780 (1992), Annex IX Rape and Sexual Assault, UN Doc S/1994/674/Add.2 (28 Dec 1994) [hereinafter Yugoslav Commission Final Report] vol V (regarding the practice of rape in detention camps in Bosnia). See infra note 130and accompanying text.


27

at check points and border crossings,54 in refugee camps,55 by gangs of assailants,56 in public places,57 a n J by looters.58 Often the sexual violence takes place in front of others, including family members.59 Although violence against women, particularly sexual violence, has been an integral part of armed conflict since time immemorial, it was largely undocumented until relatively recently. In her 1975 work, Susan Brownmiller presents stark accounts of rape and other sexual atrocities committed during the two World Wars, as well as the rape of women in conflicts in East Pakistan, and Vietnam.'' 0 Other writers have now begun to reconsider the issue of sexual violence during the Second World War.61 There is increasing documentation of sexual violence against women in armed conflicts, as well as during riots and periods of civil unrest. Nowadays there are reports and stories of sexual violence from virtually every conflict zone in the world, including: Aceh, 62 Afghanistan,63 Algeria,6^ Angola,65 Azerbaijan,66

54 55 56 57 58 59

60 61

62

63 64

65 66

See for example, Shattered Lives, supra note 6, at 39 (re rape of women at checkpoints during the 1994 conflict in Rwanda). See infra notes 112 ff and accompanying text. See Shattered Lives, supra note 6, at 42-48 (re gang rapes of women by militias during the 1994 conflict in Rwanda). See generally Yugoslav Commission Final Report, supra note 62 (regarding the rape of women in public places during the conflict in the former Yugoslavia). Ibid. See for example, Coomaraswamy 1998 Report, supra note 17, Introduction (re the testimony of Witness JJ in the prosecution of Jean-Paul Akayesu before the International Criminal Tribunal for Rwanda). See Brownmiller, supra note 37, at 40-86. On this conflict, see also R Seifert, War and Rape, Analytical Approaches (1993). See for example, I Chang, The Rape of Nanking: The Forgotten Holocaust of World War II (1997). See also K Askin, War Crimes Against Women: Prosecutions in International War Crimes Tribunals (1997). See Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, Ms Radhika Coomwaraswamy, Mission to Indonesia and East Timor on the Issue of Violence against Women, UN Doc E/CN.4/1999/68/Add.3 (21 Jan 1999) [hereinafter Coomaraswamy 1999 Report] paras 9, 93-98. See for example, Asia and Pacific Development Centre, supra note 44, at 7; Coomaraswamy 1998 Report, supra note 17, pt I A. See for example, Z Sadou, "Algeria: The Martyrdom of Girls Raped by Islamic Armed Groups", in N Reilly ed, Without Reservation: The Beijing Tribunal on Accountability for Women's Human Rights (1996) 28; Coomaraswamy 1998 Report, ibid. See for example, International Federation Terre des Hommes, The Fake Start: A Preliminary Study on Sexual Violence, Abuse and Exploitation of Children in Times ofArmed Conflict (1996) 22. See for example, Asia and Pacific Development Centre, supra note 44, at 8.

28


Bosnia,67 Bougainville,''8 Chad,® Chechnya;70 Croatia;71 Cyprus, 72 East Timor,7^ Georgia,7^ Guatemala,^ Haiti, 76 India (Punjab),77 Indonesia,78 Irian Jaya,7^

67

See for example, Amnesty International, Bosnia-Herzegovina: Rape and Sexual Abuse by Armed Forces (1993); and Stiglmayer, supra note 39, at 82-169. The European Community also sent a mission headed by Dame Ann Warburton to investigate the treatment of Muslim women in the former Yugoslavia. See Letter dated 2 Feb 1993 from the Permanent Representative ofDenmark to the United Nations Addressed to the Secretary-General, UN Doc S/25240 (3 Feb 1993). See also the further sources cited infra Chapters 5 and 6 regarding sexual violence in the former Yugoslavia. Although most of the available documentation concerns rapes of Bosnian Muslim women, there are reports of sexual violence against Serbian women during the conflict in the former Yugoslavia. See for example Stiglmayer, ibid at 137-144 (regarding the rape of Serbian women); and S Raskovic, Serbian Women as Victims of War, paper presented in Toronto, 1994, Serbian Unity Congress (copy on file with authors.).

68

See T Looby, "Women in Bougainville", (1992) 42 Refractory Girl 66, 67; Asia and Pacific Development Centre, supra note 44, at 9. See Women's Commission of the Human Rights League of Chad & the Editors, "Women Denounce their Treatment in Chad", in What Women do in Wartime, supra note 14, at 118. See for example "Rape Allegations Surface in Chechnya", (20 Jan 2000) Nazran (reporting allegations of rapes by Human Rights Watch investigators in Ingushetia); and "Rape and Torture of Children in Chernokozovo 'Filtration Camp'", Amnesty International News Release (23 Mar 2000). See Pitter & Stiglmayer, supra note 40; and Stiglmayer, supra note 39, at 144-146. See M Roussou, "War in Cyprus: Patriarchy and the Penelope Myth", in R Ridd & H Callaway, eds, Caught up in Conflict, Women's Responses to Political Strife (1986) [hereinafter Caught up in Conflict} 32-34 (citing The Report of the Commission of the Council of Europe on Human rights in Cyprus 1974 (1976) 120). See for example, Amnesty International, East Timor: Seize the Moment, (1999) 28-29; id, Women in Indonesia and East Timor: Standing against Repression (1995); Coomaraswamy 1999 Report, supra note 62, at 75-92; and United Nations Office of the High Commissioner for Human Rights, Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc A/54/726, and S/2000/59 (31 Jan 2000) paras 126-127. See for example, International Federation Terre des Hommes, supra note 65, at 22. See for example, ibid; Coomaraswamy, 1998 Report, supra note 17, pt I A. See for example, Human Rights Watch Women's Rights Project, Rape in Haiti: A Weapon of Terror (1994); Coomaraswamy 1998 Report, supra note 17, pt I A. See for example, ibid. See for example, Coomaraswamy 1999 Report, supra note 62, at 62-74 (re rape of ethnic Chinese women). See for example, ibid, at 99-110.

69 70

71 72

73

74 75 76 77 78 79


29

Kashmir,80 Kosovo,81 Liberia,82 Mozambique, 83 Myanmar (Burma),84 Namibia, 85 the occupied Palestinian territories,86 the Persian Gulf conflict (1990-91), 87 Peru,88 Philippines,8"3 Rwanda,^0 Sierra Leone,*31 Somali refugee women in Kenya,^2 the apartheid era in South Africa,93 S u d a n i Tibet,95 Uganda,*56 and West Papua.97

80 81

82

83 84

85 86

87 88 89 90 91 92 93 94 95 96

97

See for example, Human Rights Watch Women's Rights Project, Rape in Kashmir: A Crime of War (1993); IWRAW, (1991) 5(1) Women's Watch. See for example, UN Population Fund, Assessment Report on Sexual Violence in Kosovo, Mission completed by D Serrano Fitamant, Psychology Consultant to the UNFPA, 27 April-8 May 1999 (1999); World Vision, Kosovo: The Women and Children (1999); and Human Rights Watch, Kosovo: Rape as a Weapon of "Ethnic Cleansing" (2000) (documenting systematic sexual violence against ethnic Albanian women, and also condemning rape perpetrated against Serbian, Albanian and Roma women by ethnic Albanians). See for example, Association of Female Lawyers of Liberia (AFELL) & the Editors, "Hundreds of Victims Silently Grieving", in What Women Do in Wartime, supra note 14, at 129; Coomaraswamy 1998 Report, supra note 17, pt I A; and S Swiss & J Giller, "Rape as a Crime of War: A Medical Perspective", (1993) 270(5) JAMA 612. See for example, A de Abreu, "Mozambican Women Experiencing Violence", in What Women do in Wartime, supra note 14, at 73; Women in the Frontline, supra note 15, at 45. See for example, Women in the Frontline, supra note 15, at 45; Human Rights Watch Women's Rights Project, Rape, Forced Labor and Religious Persecution in N. Arakan (1992); an dT Cleaver & M Wallace, Namibia: Women in War (1991) 1. See for example, T Shikola, "We Left Our Shoes Behind", in What Women do in Wartime, supra note 14, at 138. See for example, S Sharoni, "Every Woman is an Occupied Territory: The Politics of Militarism and Sexism and the Israeli-Palestinian Conflict", (1992) 1(4) Journal of Gender Studies 447 at 458; and Women in the Frontline, supra note 15, at 22. See for example, Women in the Frontline, supra note 15, at 44; and Report of the Special Rapporteur on the Situation ofHuman Rights in Kuwait under Iraqi Occupation, UN Doc E/CN.4/1992/26 (1992). See for example, America's Watch & Women's Rights Project, Untold Terror: Violence Against Women in Peru's Armed Conflict (1993); Coomaraswamy 1998 Report, supra note 17, pt I A. See International Federation Terre des Hommes, supra note 65, at 22. See for example, African Rights, supra note 58; and Shattered Lives, supra note 6. See generally the sources cited infra Chapters 5 and 6 regarding sexual violence in Rwanda. See for example, G McDougall, "UN mission to Sierra Leone in June 1999", (1 July 1999) UN Wire 15. See for example, Africa Watch, Seeking Refuge, Finding Terror: The Widespread Rape of Somali Women Refugees in North Eastern Kenya (4 Oct 1993) 5(13). See for example, Goldblatt & Meintjes, supra note 14, at 27. See for example, Abdel Halim, supra note 39, at 85. See for example, Asia and Pacific Development Center, supra note 44, at 13See for example, N Matovu, "Wartime Abduction and Sexual Abuse in Uganda: The Story of Agnes", in N Reilly ed, Without Reservation: The Beijing Tribunal on Accountability for Women's Human Rights (1996) 34; and Swiss & Giller, supra note 92, at 612. See for example, Asia and Pacific Development Center, supra note 44, at 14.

30


Sexual violence against women during armed conflict is the rule rather than the exception. The non-inclusion of some conflicts in this list does not necessarily indicate the absence of sexual violence. It is more likely to be a reflection of the lack of documentation of such crimes. Moreover, the profile of sexual violence varies between conflicts, and is related more to Western bias in reporting and international action, than to the prevalence or severity of the violence. United Nations (UN) peacekeeping forces and forces acting under the authority of the Security Council also have contributed to the abuse of women in conflict situations. There are many reports of rape and sexual harassment by these forces, as well as complicity in sexual abuse perpetrated by parties to the conflict.?8 Women are also at risk during armed conflict of violence from their own family and community members. For example, in conflicts where the religious or cultural identity of groups is threatened, practices such as female genital mutilation may become more entrenched, as groups struggle to maintain and reinforce their identity.99 Further, there is mounting evidence that rates of domestic violence increase significantly in war zones, as well as in societies recovering from armed conflict.100 Women in inter-ethnic marriages are particularly vulnerable in these situations. d.

Displaced and Refugee Women

It is estimated that in 1998, refugees throughout the world numbered approximately 11 million and that the number of internally displaced persons was

98

See for example, Pitter & Stiglmayer, supra note 40 (detailing abuse of Muslim and Croatian women by UNPROFOR); and B Woodley, "Soldiers Warned on Sex Abuse", (17 Jan 2000) The Australian 1 (detailing the sexual harassment of East Timorese women and girls by Australian soldiers forming part of INTERFET forces in East Timor), and M Eddy, "American Solider Charged with Killing Ethnic Albanian", Associated Press (16 Jan 2000) (detailing the alleged sexual assault and killing of an 11 year old ethnic Albanian girl by an American solider serving as part of KFOR). See generally, A Orford, "The Politics of Collective Security", (1996) 17 Mich JMIL 372 at 377-79. 99 See H Osman, "Somalia: Will Reconstruction Threaten Women's Progress?", (1993) 3(2) Ms 12 at 13; Coomaraswamy 1998 Report, supra note 17, s III D, para 6. See also, WHO, "Violence against Women In Situations of Armed Conflict and Displacement", in UN Doc WHO/FRH/WHD/97 (8 July 1997). 100 See for example, Asia and Pacific Development Center, supra note 44, at 11 (detailing high levels of domestic violence in Cambodia following the Khmer Rouge regime); H Bernstein, For their Triumphs and For their Tears (1985) 23 (referring to the high rate of domestic violence in Wintersveld, South Africa during the Apartheid era); and I Sekulic, "Inside Setbia: The War at Home", (1994) 4(5) Ms 18 at 19 (detailing statistics regarding domestic violence from the SOS Belgrade Hotline for women survivors of rape and domestic violence in 1994 during the war in the former Yugoslavia).


31

approximately 5 million. 10* One of the major causes of such mass movements of persons is armed conflict and internal disturbance. It is known that a large percentage of refugees and internally displaced persons, particularly those fleeing internal armed conflicts, are women. 1 0 2 However, detailed demographic data relating to refugee populations is rarely available. Moreover, women and children are frequently included in the same category.103 Nonetheless, there is sufficient information to indicate the distinctive experience of refugee women. Women may be forced to leave their homes in an effort to protect themselves, their children, and other vulnerable family members. Forced evictions, moreover, are frequently used as a strategy of war as, for example, in the conflicts in the former Yugoslavia and Rwanda.10^ The home is where most women traditionally live out their lives and carry out their responsibilities and the loss of their home impacts distinctly and harshly on women. 105 Becoming a refugee adds a new dimension to the vulnerability of women. Refugee women may be injured or killed while escaping regions where there is on-going fighting. The journey itself invariably involves considerable physical hardship. When women are separated from their homes and communities their vulnerability to gender-based violence increases.106 They are frequently forced to offer sex in return for safe passage, essential food, shelter, refugee status, or documentation. 107

101 See UNHCR, Refugee and Others of Concern to UNHCR - 1998 Statistical Overview (1999). 102 The Beijing Platform for Action (supra note 12, at para 136) estimates that 80% of refugees are women and children; and see Analytical Report of the Secretary General on Internally Displaced Persons, Commission on Human Rights, Forty-eighth Session, (11 Jan 1999) Agenda Item 11 (a). See also Progress Report on Implementation of the UNHCR Guidelines on the Protection of Refugee Women, UN Doc EC/SCP/74 (22 July 1992) para 6. The forcible eviction of persons from their home or lands is a widespread human rights problem and is not confined to armed conflict. The Committee on Economic Social and Cultural Rights (General Comment No 7, UN Doc E/C/12/1997/4 (1997)) has recognised forced eviction as a gross violation of human rights. See also L Farha, "The Case of Forced Evictions", in Common Grounds (1998) 77. 103 Progress Report on Implementation of the UNHCR Guidelines on the Protection of Refugee Women, UN Doc EC/SCP/74 (22 July 1992) para 6, UNHCR, supra note 101, at para 5. 104 See Lourdes Sajor, supra note 33, at 5. See also Farha, supra note 102, at 82-94 (describing forced evictions against the Kurds, and also in Burma). 105 For a discussion of displacement and refugee women, see S Forbes Martin, Refugee Women (1992); and The impact of Armed Conflict upon Children: Report Submitted pursuant to the resolution adopted by the General Assembly AIRES/481157 to the Fifty First Session of the United Nations General Assembly, UN Doc/51/306 (26 Aug 1996) [hereinafter Machel 1996 Report] 26, 62-64. 106 See Analytical Report of the Secretary-General on Internally Displaced Persons, supra note 102, at para 58. 107 See Coomaraswamy 1998 Report, supra note 17, pt III D(l). See also Arms to Fight, supra note 3, at 36.

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Refugee women are often denied legal status in their own right. In some cases, refugee registration cards and other essential documentation, are issued only to husbands and fathers. 108 Upon disintegration of the family unit, (and abandonment of wives is not uncommon amongst refugee populations), women are left in a vulnerable position. The United Nations High Commissioner for Refugees (UNHCR) reports the difficulties faced by women when ration cards are issued only to husbands, who subsequently abandon their families.10^ Women may also be forced into dependence upon their husbands as a result of procedures to determine refugee status. 110 Conditions in refugee camps pose particular problems for women. Refugee camps are generally poorly sanitised and lacking in essential services and basic supplies. Outbreaks of disease, particularly diarrhoea, respiratory infections, and infectious diseases such as measles and tuberculosis, are common place. 111 Violence against women is prevalent in refugee camps. 112 Refugee women are raped and sexually assaulted by other refugees and camp officials.1 ^ They are also at risk of being forced into prostitution, 11 ^ and domestic violence is prevalent. 1 ^ There is increasing awareness of the importance of designing camp life to provide security for women, although adequate resources for this task are seldom available. For example, alarming rates of sexual violence at a refugee camp in Kenya have been addressed by an innovative program that provides bundled firewood, thus reducing the incidence of attacks on women foraging in the bush. However, such programmes are invariably cut in the face of funding constraints and the need to ensure the supply of food and water takes priority. 116 Many of the difficulties experienced by refugee women are exacerbated by the fact that men are regularly in charge of refugee camps, or are responsible for making decisions about planning and resource allocation. In some cases, cultur

108 Progress Report on Implementation of the UNHCR Guidelines on the Protection of Refugee Women, UN Doc EC/SCP/74 (22 July 1992) para 25. 109 Ibid, para 12 and 19. 110 Ibid, para 28. 111 Machel 1996 Report, supra note 105, at 140. 112 See UNHCR, Sexual Violence Against Refugees: Guidelines on Prevention and Response (1995) 4-5; Coomaraswamy 1998 Report, supra note 17, pt III D. 113 See discussion on sexual violence supra notes 37 ff and accompanying text. See also UNHCR, ibid. 114 See UN Wire (21 May 1999) 5; L Montgomery, "Gangs are Preying on Kosovar Women", (25 May 1999) The Inquirer (reporting that Kosovar women, were lured from refugee camps on the promise of employment, free travel, and schooling in other European countries such as Italy, only to find themselves forced into prostitution.); and Asia and Pacific Development Centre, supra note 44, at 7 (regarding refugee women from Afghanistan). 115 See Coomaraswamy 1998 Report, supra note 17, s III D, para 3. 116 See KVick, "For Somali Refugees, No Safe Haven," (3 June 1999) Washington Post Foreign Service A 19 (reporting that sufficient funds to continue the firewood programme would not be available due to the decrease in donations for refugees in Africa, following the Kosovo crisis.).


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al conditioning and taboos inhibit the participation of women in such tasks. 117 As a result the needs of women are generally not adequately addressed. Unequal food distribution is a particular problem. 118 Furthermore, women seldom have access to appropriate reproductive health services.119 In some cases, gender-based persecution is reinforced by the administrators of refugee camps. For example, it is reported that camps run by religious fundamentalists in Pakistan perpetuate sex discrimination against Afghan refugees.120 Western agencies have also been criticised for imposing "their concept of what traditional women's roles were or should be, even romanticising the dependency of women." 121 Repatriation, and the recovery of homes and possessions at the conclusion of armed conflict is of great importance to refugee and displaced women. Women are frequently unable to exercise these rights. For example, women forced to flee during the 1995 attack on Srebrenica have been unable to return to their homes, and continue to campaign for assistance.122 Furthermore, some women experience difficulties in qualifying for asylum status due to restrictive definitions that inadequately recognise gender-based persecution.123 Women who are resettled in other countries face distinctive challenges as they attempt to build their new lives.12^ e.

Women in Detention

There is relatively little literature examining the experience of civilians in detention. 125 The description of life in the Jewish Ghettoes, forced labour camps, con centration camps, and extermination camps of Nazi controlled Europe, provides

117 See Progress Report on Implementation of the UNHCR Guidelines on the Protection of Refugee Women, UN Doc EC/SCP/74 (22 July 1992) paras 36 and 37. 118 Ibid, para 19. 119 Ibid, para 20; and Progress Report on Refugee Women and UNHCR's Framework for Implementation of the Beijing Platform for Action, UN Doc EC/47/SC/CRP.45 (15 Aug 1997) para 8. 120 See Asia and Pacific Development Centre, supra note 44, at 7. 121 Forbes Martin, supra note 105, at 13122 See for example, the Srebrenica Justice Campaign, Intellinet . See also the sources cited regarding the Srebrenica massacre infra note 151, 152. 123 This is a subject that has received considerable attention from other commentators. See for example, J Greatbatch, "The Gender Difference: Feminist Critiques of Refugee Discourse, (1989) 1(4) IJRL 518; and Report of the Expert Group Meeting, Gender-Based Persecution, Toronto Canada, November 1997, UN Doc EGM/GBP/1997/Report (1997). 124 See for example, E Pittaway, Refugee Women-Still at Risk in Australia: A Study of the Resettlement Needs and Experiences of Refugee Women in their First Two Years in Australia (1991). 125 See M Potts, "Long-Term Effects of Trauma: Post-Traumatic Stress among Civilian Internees of the Japanese during World War II", (1994) 50(5) Journal of'Clinical Psychology 681 at 682. Fora rare account of the experience of women civilians imprisoned by Japanese forces during World War II, see H Colijn, Song of Survival: Women Interned (1995).

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some insight into the particular experiences of women. Women appeared more able than men to withstand the hunger that was an integral part of life in detention. 12 ^ A similar phenomenon has been observed in other conflicts.127 However, it appears that women in the Holocaust suffered more from unhygienic conditions in the camps and from the incidence of lice and other bugs. 128 Women who did not suffer from amenorrhoea as a result of malnutrition had to cope with menstruation without any sanitary provisions.12^ Many women in concentration camps were compelled to submit to sexual relations with other detainees to obtain food or other essential commodities. 13^ Male detainees were more likely to be allocated work in storerooms and in other areas where they had access to provisions. Overall, commentators suggest that women are less likely to be detained as a result of armed conflict than men. However, this frequently means that those women who are detained suffer worse conditions because facilities are not designed to meet their needs. Women may be detained with men, and female guards are frequently not available.131 Although both men and women are routinely tortured in detention, there are gender specific methods of torture. For example, in South Africa during the apartheid era, pregnant women were subjected to electric shocks; medical care was withheld leading to miscarriages; body searches and vaginal examinations were carried out; rape and forced intercourse with other prisoners occurred; and foreign objects, including rats, were inserted into women's vaginas. In addition, women's fallopian tubes were flooded with water, sometimes destroying their child-bearing ability. 132 Stories of harm to children were used by authorities to traumatise their mothers. 133 Such tactics are particularly evident in cultures

126 See M Unger, "The Status and Plight of Women in the Lodz Ghetto", in D Ofer & L Weitzman eds, Women in the Holocaust (1998) 123 at 136-137; R Bondy, "Women in Theresienstadt and the Family Camp in Birkenau", in id, 310 at 318. 127 See C Boua, "Cotton Wool and Diamonds", (1993) 242 New Internationalist 20 at 20 (reporting the distinct responses of men and women to starvation during the Khmer Rouge years in Cambodia). 128 See Bondy, supra note 126, at 318. 129 Ibid, at 315. 130 See C Rittner & J Roth, Women and the Holocaust: Different Voices (1993) Gisella Pearl, 112-113 and Olga Lengyel, 127. See also, Karay, supra note 13, at 296-298. 131 See ICRC, Women and War (1995) 12 (comments of Dr Hernan Reyes, gynaecologist and ICRC medical coordinator for visits to detention centres). 132 See Goldblatt & Meinjtes, supra note 14, at 37 (citing Federation of Transvaal Women, A Woman's Place is in the Struggle, Not Behind Bars! (1987); and Nomvula Mokonyane and Jessie Duarte, speaking at the Workshop on Gender and the Truth and Reconciliation Commission, Centre for Applied Legal Studies, University of Witwatersrand, 19 Mar 1996). 133 Ibid, at 40.


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where women are valued and recognised primarily as mothers. For example, children born to women while in custody during the "dirty war" in Argentina, were taken from their mothers at birth.^4 ft has been argued that in doing so "the Argentine military state asserted its power over a distinctive aspect of female identity, motherhood". ^5 Amnesty International has documented the use of rape, acts of sexual humiliation, and threats of harm to women's reproductive systems as methods of torture in detention centres throughout the world. ^ Sexual mutilation is another well-known tactic used to torture women. Gender-specific medical experimentation was widely practiced in the Nazi concentration camps during World War II. This included the application of short-wave rays to the lower abdomen and the removal of the ovaries and uterus. 1 ^ The forced labour of women is used by all parties in armed conflicts. It takes many forms, including domestic tasks such as washing and ironing soldier's uniforms, washing dishes, cooking, making coffee and cleaning rooms. 138 Women are also compelled to work in labour camps by their captors, and as unpaid porters for their own forces. 1 ^ Where labour is paid, women may receive much lower rates of pay than men, and consequently be in higher demand. f.

Reinforced Gender Stereotypes

Armed conflict reinforces gender stereotypes that contribute to the subordination of women. During these times, considerable emphasis is placed on women as wives and mothers, with the responsibility for breeding the next generation of soldiers. 140 As long as women stay within their constructed gender roles, they perform a valuable function for the military in many areas, for example, as nurses, social workers, prostitutes, wives, mothers, and widows.1^1 These stereotypes

134 See Women in the Frontline, supra note 15, at 35. 135 M Brinton Lykes et al, "Human Rights and Mental Health Among Latin American Women in Situations of State-Sponsored Violence", (1993) 17 Psychology of Women Quarterly 525 at 535136 See Women in the Frontline, supra note 15, at 18-24 (citing such countries as El Salvador, India, Pakistan, Romania, Somalia, the Israeli Occupied Territories, and Burma). 137 See Rittner & Roth, supra note 130, at 124-125 (Olga Lengyel). 138 See for example, Kirshenbaum, supra note 21, at 66 (recounting stories from survivors of the Omarska detention camp during the conflict in Bosnia and Herzegovina); Coomaraswamy 1998 Report, supra note 17, pt I A (describing reports of forced domestic labour by women in Liberia). 139 See for example, McGrew, supra note 50 (describing the use of women as unpaid porters by the Khmer Rouge in Cambodia). 140 See Papic, "Nationalism, Patriarchy and War in ex-Yugoslavia", (1994) 3(1) Women's History Review 115 at 117. 141 See Enloe, supra note 9, at 212.

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also generate new forms of discrimination against women. In times of armed conflict, many societies seek to strictly control the "virtue" of women. If women are perceived to flout these rigid social dictates, they are subjected to harsh and discriminatory punishments. For example, in Britain during the two World Wars, women were subjected to discriminatory curfews as a measure to prevent the perceived decline in their morality. 142 French women who were suspected of "fraternising" with German soldiers during World War II, had their heads shaved in public. When Somali women were seen talking to American soldiers during "Operation Restore Hope", they were stripped and beaten. 143 Stereotypes of women are manipulated for propaganda purposes by all parties to a conflict. For example, in the 1994 conflict in Rwanda, constructed images of both Hutu and Tutsi women were used as propaganda to incite violence. 144 Moreover, belligerents often capitalise upon reports of sexual violence against "their" women to garner sympathy and support for their side, and to strengthen resolve against the enemy. 145 Enloe comments on the publicity surrounding the rape of women during the two World Wars.14(^ However, details of these crimes are largely absent from historical accounts of the conflicts, and, moreover, no steps were taken to provide any redress for the women involved.14^ It is not only parties to a conflict who appropriate accounts of the suffering of women for their own purposes. Women in the former Yugoslavia have expressed the view that their suffering was used for political purposes by other

142 See P Summerfield, "Women in the Two World Wars", (1989) 23 Historian 3 at 7-8. 143 See J El-Bushra & C Mukambuga, "Women, War and Transition", (1995) 3(3) Gender and Development 16 at 17-18 (citing K Maier, "Women Fall Victim to Somalia's Prejudice", (5 Jan 1993) Independent). 144 See for example, Coomaraswamy 1998 Report, supra note 17, pt I (discussing the Hutu "Ten Commandments" published in the Kangura newspaper on 10 Dec 1990, the first three of which specifically relate to women); and Shattered Lives, supra note 6, at 15-19. 145 For example, there are indications that warring factions in the former Yugoslavia used reports of sexual violence against "their" women for propaganda purposes. See for example, The Prosecutor v Karadzic and Another, Rule 61 Hearing, Case No IT-95-18, Transcript of Proceedings (2nd July 1996) (evidence of Christine Cleiren, member of the Commission of Experts established by the Security Council to investigate violations of IHL in the former Yugoslavia). 146 See C Enloe, "Afterword: Have the Bosnian Rapes Opened a New Era of Feminist Consciousness?", in Mass Rape, supra note 37, 219 at 219. 147 See S Brownmiller, "Making Female Bodies the Battlefield", in Mass Rape, supra note 37, 180 at 182. See also. S Gibson, "The Discourse of Sex/War: Thoughts on Catharine MacKinnon's 1993 Oxford Amnesty Lecture", (1993) 2 Fern Legal St 179 (discussing the manner in which women's pain has been appropriated by men during armed conflict).


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members of the international community, ^ 8 and by the media, ^ 9 but otherwise was disregarded. g.

Loss of Family Members

Widowhood, and the loss of other male family members, is one of the most likely outcomes of armed conflict for women.150 l n S ome armed conflicts, men and boys are singled out specifically for execution. For example, during the armed conflict in the former Yugoslavia, Serb forces separated the population of Srebrenica into two groups: males between the ages of approximately 16 and 65; and women, children, and the elderly. There is evidence that thousands of the men and boys were summarily executed and their bodies consigned to mass graves. Thousands more remain unaccounted for.151 One survivor reports having lost 146 male family members. 152 The loss of loved ones causes immeasurable emotional, 15 ^ social,15^ and economic 155 suffering for the women who are left to reconstruct their lives following the conflict. The resulting trauma is exacerbated in cases where women have been forced to witness these killings. Wives and mothers of the "disappeared" and other missing persons, experience the anguish of not knowing what has happened to their family members, and of being unable to bury their

148 See I Sekulic, "Inside Serbia: The War at Home", (1994) 4(5) Ms, 18 at 19 (detailing comments made to the SOS-Belgrade Hotline by women survivors of rape and sexual violence.) See also Kirshenbaum, supra note 21, at 68. 149 See Kirshenbaum, ibid (describing incentives offered by the media for the stories of survivors of sexual violence). 150 See for example, J Zur, "The psychosocial effects of 'La Violencia' on widows of El Quiche, Guatemala", in H O'Connell ed, Women and Conflict (1993) 27 at 27 (estimating that, in 1993, at least 120,000 women were widowed as a result of the civil war in Guatemala); Coomaraswamy 1998 Report, supra note 17, pt I (estimating that, following the 1994 conflict in Rwanda, 14.5% of all women, and 22.5 % of women over 21 years, are widows). 151 See generally, Report of the Secretary-General Pursuant to General Assembly Resolution 53135 (1998), Srebrenica Report, UN Doc A/54/549, 15 November 1999 paras 318 ff. 152 See Memorandum of Conversation, Meeting Between The Representatives of the Organization of Mothers of Srebrenica and Podrinja and Prosecutor for the International War Crimes Tribunal, Madame Del Ponte, (4 Feb 2000) (copy held with authors). 153 See the discussion infra. See also R Mollica et al., "The Psychosocial Impact of War Trauma and Torture on Southeast Asian Refugees", (1987) 144(12) Am ] Psychiatry 1567 (reporting that Cambodian widows were particularly affected by serious psychiatric and social impairments.) 154 See the discussion infra. 155 See the discussion infra.

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dead.156 For these women, seeking out the truth, and reclaiming the bodies of deceased loved ones, are issues of paramount importance. For example, the women of Srebrenica are campaigning, inter alia, for immediate exhumation of all graves and identification of bodies, and the release of any survivors being held prisoner. ^7 They also seek to ensure that all those responsible for the deaths of family members are held criminally liable.^ 8 h.

Loss of Social Position

The fear and poverty associated with armed conflict often leads to social isolation for women, particularly in cultures with elaborate traditions of hospitality. !59 Moreover, there are devastating social consequences for women who are widowed as a result of armed conflict. In South Africa, widows recounted to the Truth and Reconciliation Commission how they have become outcasts in their own society.160 Women frequently comprise the majority of the population at the end of an armed conflict.1(^ Consequently re-marriage, which is often essential for restoring social status, is difficult. In some societies, the shortage of marriageable men following armed conflict leads to an increase in polygamy.1*^2 Although women may see polygamy as their only option for survival, it invariably operates to their detriment, particularly for the subsequent wives.1® Wives of the "disappeared" face particular difficulties. Their indeterminate status often

156 See for example, C Sennott, "Apology of Lebanese Figure Breaks Silence on Civil War", (28 Feb 2000) The Boston Globe (reporting the continuing anguish of the wives and mothers of 17,000 Lebanese who disappeared during the war); M Brinton Lykes, "Human Rights and Mental Health Among Latin American Women in Situations of State-Sponsored Violence", (1993) 17 Psychology of Women Quarterly 525 at 530 (reporting the "profound psychological consequences" suffered by women who are unable to obtain information about "disappeared" family members in Latin America); and S Tully, "A Painful Purgatory: Grief and the Nicaraguan Mothers of the Disappeared", (1995) 40(12) Soc Sci Med 1597. 157 See the Srebrenica Justice Campaign, . 158 A complaint has been filed with the ICTY by the Mothers of Srebrenica and Podrinja Associate, seeking to hold various individuals, including UN personnel, responsible for the massacre at Srebrenica. See . 159 See M Turshen, "Women's War Stories, in What Women do in Wartime, supra note 14, at 1, 16. See also Health and Welfare in Iraq after the Gulf Crisis, Harvard Study Team Report (1991) 15 (reporting social isolation experienced by women in Iraq following the Persian Gulf conflict (1990-91)). 160 See Goldblatt & Meinjtes, supra note 14, at 36. 161 See the statistics cited supra note 6. 162 See for example, Boua, supra note 127, at 21 (describing widespread polygamy in Cambodia following the Khmer Rouge era). 163 See Turshen, supra note 159, at 1, 16.


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prevents re-marriage, with the situation exacerbated by religious or social constraints.164 The social consequences of amputation resulting from landmine injuries are distinctive for women. A woman amputee is frequently unmarriageable, or, if married, may be rejected by her spouse.165 While men amputees may also find that their prospects of marriage diminish, studies of the impact of landmines in conflict zones such as Cambodia,166 and Somalia,167 indicate that unmarried women amputees suffer the greatest detrimental social impact. Much has been written about the social stigma experienced by survivors of sexual violence. This phenomenon may be exacerbated by religious and/or cultural traditions. Women are frequently rejected by their spouses, fiancees, and families.168 For example, following the widespread rape of women during the 1974 war in Cyprus, many Cypriot men reportedly applied to the Church for divorce or dissolution of their engagement contracts. This behaviour was accepted and excused.1® Women who become pregnant as a result of rape suffer additional hardships. In light of these attitudes, survivors of sexual violence frequently express the view that they wish they had been killed. On many occasions, women commit suicide rather than return to face their communities. At the end of World War II, instead of feeling exhilarated at the prospect of liberation, the "comfort women" enslaved by the Japanese Army felt intense fear and dread about the prospect of returning home. Many committed suicide rather than face the shame and ostracism they anticipated upon their return.170 In some societies, parents may send their daughters away from home, or marry them at an early age, in an attempt to protect them from sexual violence.171

164 See Roussou, supra note 72, 25 at 42 (detailing the reluctance of the Church to grant divorces to the wives of the disappeared following the war in Cyprus). 165 See Davies, supra note 31, at 111. 166 See Gray, supra note 29, at 7. 167 See A de Waal etal., Violent Deeds Live On: Land Mines in Somalia and Somaliland (1993). 168 See for example, Africa Watch, supra note 92, at 17-18 (describing the reaction of the husband of a raped Somali refugee woman); and Helsinki Watch, War Crimes in Bosnia-Herzegovina, 171-172 (1993) (describing the experience of young Muslim women in the former Yugoslavia). 169 See Roussou, supra note 72, at 34. 170 See U Dolgopol, "Women's Voices, Women's Pain", (1995) 17 HRQ 127 at 138. See also Asia and Pacific Development Center, supra note A4, at 7 (for reports of women/girls committing suicide as a result of sexual violence in Afghanistan). 171 See Asia and Pacific Development Center, ibid (describing the sending of Afghan girls to Pakistan); and International Federation Terre des Hommes, supra note 65, at 29, 30 (regarding early marriage).

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i.


Economic Effects of Armed Conflict

Women are economically disadvantaged as a result of armed conflict, and this situation is likely to continue into the post-conflict era, when women make up the majority of the population. 172 Moreover, in many cultures, it is women who have the most to gain from economic development, and are thus particularly disadvantaged when these resources are diverted into the war effort. The economic implications for refugee women are compounded by the loss of their homes and possessions.173 Inflation is commonplace during periods of armed conflict.17^ As a result, women, who generally are responsible for running the household, are less able to meet the basic needs of their families.175 This situation is exacerbated by the unlikelihood of any offsetting increase in their income during these periods. 17 ^ When families are forced to sell items of property to survive, it is often the possessions of women that are sold first. For example, the Persian Gulf conflict (1990-91), and its associated economic sanctions, reportedly led to many Iraqi women selling their gold jewellery to ensure the survival of their family. In Iraqi culture, where gold is an important part of a bride's dowry and is a factor determining social status, the dependence and vulnerability of many women has consequently increased.177 Armed conflict may lead to the assumption by women of new roles in the public sphere. 178 In some cases armed conflict removes abusive partners from the

172 See S Urdang, And Still they Dance: Women, War and the Strugglefor Change in Mozambique (1989) (discussing the burden women bear of providing for the family in the aftermath of conflict); V Rosess, "Women Shoulder the Burden of Cambodia's Economy", (1994) 9 World of Work: The Magazine of the ILO 24-25. 173 See Farha, supra note 102 (for a discussion of armed conflict and forced evictions). 174 See for example, H Swanwick, The War in its Effect on Women (1917) 10 (noting the price rises caused by World War I, and the effect upon women). See also Report and Recommendations Made By the Panel of Commissioners Concerning the First Instalment of Individual Claims for Damages up to US$100,000 (Category "C" Claims"), UN Doc S/AC.26/1994/3 (21 Dec 1994) 61 (in which the United Nations Compensation Commission notes the inflationary impact on the prices of goods and services of the 1990 invasion of Kuwait by Iraq). 175 See Health and Welfare in Iraq after the Gulf Crisis, supra note 159, at 10 and 20 (reporting that Iraqi women identified their "greatly reduced ability to feed their families" as the most serious consequence of the Persian Gulf conflict (1990-91)). 176 See Swanwick, supra note 174, (noting in the context of World War I, that women earn less than men, and are less likely to receive "war bonuses" or pay increases). 177 See Health and Welfare in Iraq after the Gulf Crisis, supra note 159, at 8 and 20. 178 See G Braybon & P Summerfield, Out of the Cage: Women's Experience In Two World Wars (1987); S Fishman, "Waiting for the Captive Sons of France", in M Higonett et at eds, Behind The Lines (1987) 182; ] Thompson, "Women and War", (1991) 14 Women's Studies International Forum 63 at 66.


41

home and allows women the opportunity to develop new skills. ^ 9 Unfortunately many of these advantages are lost when the conflict ends. 180 Discriminatory laws or customs often prevent women from competing in the market place. 181 Lack of education and training, and general community attitudes, make it difficult for women to support themselves and their families. Moreover, for the majority of women, their new roles in the public sphere are not accompanied by any reduction in their responsibilities in the home. In fact, the reverse is often the case. 182 Women are frequently left to care for war victims, including abandoned and orphaned children.18^ Moreover, women who give birth to children with congenital defects as a result of the use of chemical weapons, such as Agent Orange, experience particular problems in caring for these children. Armed conflicts create large numbers of households headed by women. 18 ^ Statistics reveal that these households are likely to be poor.18^ For example, war in Mozambique created many widows and female-headed households, who struggle as a result of restrictions on their access to credit, land, capital, and other services. 18(> Traditional methods of earning income, such as through food production, are frequently lost to women as a result of armed conflict. 187 Women may be forced to resort to illegal activities to make a living. For example, women caught

179 See A McLeod, Marking Time in Tuzla, (26 May 1996) Guardian Weekly; and Women's Commission of the Human Rights League of Chad & the Editors, supra note 69, at 126-127. 180 See Osman, supra note 99, at 12; Machel 1996Report, supra note 105, at 193; and Summerfield, supra note 142. 181 See Coomaraswamy 1998 Report, supra note 17, pt I (describing discriminatory laws preventing women from, inter alia, inheriting land, and obtaining credits or loans in Rwanda. Note, however, domestic legislation adopted in 2000 conferring equality in inheritance rights in Rwanda. See Special Representative on Children and Armed Conflict Welcomes Rwandan Law Allowing Girls to Inherit Property, Press Release HR/4465 (20 Mar 2000); interview with Sochua Mu Leiper, supra note 51 at 45 (describing the difficulties experienced by women heads of households after the Khmer Rouge era in Cambodia). 182 See for example, Health and Welfare in Iraq after the Gulf Crisis, supra note 159, at 14 and 16 (reporting that 80 percent of Iraqi women surveyed reported an increase in domestic responsibilities following the Persian Gulf conflict (1990-91)). 183 See for example, F Del Mundo, "Foster Families in Rwanda", (1995) 2 Refugees 14 (estimating that 95,000 children were separated from their families during the 1994 conflict in Rwanda). 184 See for example, Turshen, supra note 159, at 16. 185 For example, in Africa, between 80 and 90 percent of poor households are headed by women, see Seager, supra note 35, at 21, 105. 186 See de Abreu, supra note 83, at 75. See also interview with Sochua Mu Leiper, supra note 5, at 45 (describing the difficulties faced by women in Cambodia who have assumed the role of breadwinner in the years following the Pol Pot years). 187 See Machel 1996Report, supra note 105, at 152.

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up in conflict in the Sudan have been imprisoned for illegally brewing and/or selling liquor. 188 During armed conflict in Chad, women adopted a range of strategies for economic survival, including selling their labour and possessions, trading in home-produced commodities, joining the army, and turning to prostitution. 189 At the end of the conflict, many women find they have no other means of survival, and prostitution becomes institutionalised. This phenomenon has been particularly evident in Cambodia. 190 Women survivors of sexual violence may experience particular financial hardship. In 1993 it was estimated that in the former Yugoslavia, between 1,000 and 2,000 women became pregnant as a result of rape. 1 ^ Estimates of the number of women impregnated as a result of rape during the 1994 conflict in Rwanda range from 2,000 and 5,000. 192 These women must assume the financial burdens of abortion, pregnancy, adoption, or raising the children concerned. Sexual violence also frequently results in serious medical complications that require on-going treatment. Wives of the "disappeared" may not be eligible for State and other benefits, as their husbands are not legally recognised as dead. 19 3 Amnesty International reports that widows in Guatemala are forced to attribute the disappearance of their husbands to opposition guerrilla forces, in order to become eligible for government compensation. 1 ^ j.

Access to Essential Supplies and Services

Armed conflict invariably results in shortages of food, water, clothing, shelter, health care and sanitation. Traditionally, women are responsible for meeting the basic needs of their families. These tasks are rendered difficult and often dangerous by the breakdown of societal conditions brought about by armed conflict.

188 See Abdel Halim, supra note 39, at 89-90. 189 See A Djibrine Sy, "Conflict and the Women of Chad", in H O'Connell ed, Women and Conflict (1993) 10 at 11-12. Similarly, there is evidence that prostitution has increased in Iraq following the Persian Gulf conflict (1990-91). See Health and Welfare in Iraq after the Gulf Crisis, supra note 159, at 7. 190 See Machel 1996Report, supra note 105, at 97. 191 See G Halsell, "Women's Bodies a Battlefield in War for "Greater Serbia"", (Apr/May 1993) 9(9) Washington Report on Middle East Affairs, . 192 See Shattered Lives, supra note 6, at 3. 193 See Zur, supra note 150, at 29-30. See also Roussou, supra note 72, at 38 (detailing non-eligibility of women for pensions following the war in Cyprus). 194 See Women in the Frontline, supra note 15, at 2.


43

The imposition of economic sanctions associated with armed conflict, exacerbates the situation. ^5 The use of sanctions as a non-violent alternative to the use of force has been increasingly questioned in recent years, given their indiscriminate and devastating effects on vulnerable sections of the target community, including w o m e n . ' ^ (i) Women's health When food is scarce, women are particularly prone to malnutrition. 1 ^ Women commonly ensure that all members of the family are fed before they attend to their own needs. ^ 8 Some cultures dictate that men are to eat first, followed by women. ^ 9 Lack of adequate nutrition can lead to a range of detrimental health consequences for women, such as anaemia, damage to their reproductive system, and potentially, loss of life. 200 Statistics indicate that vulnerable groups, such as women and children, experience high rates of nutritional deficiency diseases in refugee camps. 201 Women who are malnourished may be unable to breast feed their children. 202 Moreover, forced changes to diet attendant upon armed conflict affect women differently than men.

195 See generally, Health and Welfare in Iraq after the Gulf Crisis, supra note 159 (detailing the impact of economic sanctions on women in Iraq following the Persian Gulf conflict (1990-91)). 196 See Report of the Secretary-General, Supplement to an Agenda for Peace: Position Paper of the SecretaryGeneral on the Occasion of the Fiftieth Anniversary of the United Nations, UN Docs A/50/60, S/1995/1 (25 Jan 1995) paras 66-76; and Committee on Economic, Social and Cultural Rights, General Comment No 8 The Relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights, UN Doc E/C. 12/1997/8 (5 Dec 1997). On rhe impact of economic sanctions upon women, see for example, B Bhatia et at, Unheard Voices: Iraqi Women on War and Sanctions (1992). 197 See Looby, supra note 68, at 66, 68; and Report on the Implementation of Article 21 of the Convention on the Elimination of All Forms of Discrimination Against Women, UN Doc CEDAW/C/1996/3/Add.l (1995). 198 See for example, Health and Welfare in Iraq after the Gulf Crisis, supra note 159, at 15 (reporting this practice by women, including pregnant women, in Iraq). 199 For example, in 1995 the International Committee of the Red Cross (ICRC) reported that 38 percent of Kabul's residents surveyed suffered from malnutrition. The figure was much higher amongst girls, because in Afghan culture boys are fed first, and girls frequently receive only leftovers. See also J Vickers, Women and War (1993) 91. 200 See for example, Health and Welfare in Iraq after the Gulf Crisis, supra note 159, at 12 (reporting high rates of anaemia among Iraqi women due to the absence of adequate nutrition following the Persian Gulf conflict (1990-91), and as a result of the ongoing economic sanctions against that State). 201 See Vickers, supra note 199, at 30. 202 SeeMacbel 1996Report, supra note 105, at 158-159.

44


The reproductive role of women makes them particularly vulnerable to shortages in medicine, reliable birth control, and medical treatment. 203 Pregnancy and illegal abortion rates may increase during armed conflict due to the lack of birth control, and the high incidence of rape during such times. 204 Adequate facilities for pre- and post-natal care are unlikely to be available. The physical and physiological pressures inherent in armed conflict situations can result in miscarriage, premature labour, low birth weight babies, and menstrual problems.2°5 Maternal mortality rates rise sharply, with easily treatable conditions leading to fatalities.206 These problems are exacerbated in some conflicts by the deliberate targeting of maternity hospitals and gynaecological clinics.20'7 In war zones such as Afghanistan, there is direct discrimination against women in access to medical care. Women can only be examined by other women and discriminatory educational policies ensure that there are very few female physicians. 208 In the absence of express prohibitions, cultural inhibitions often prevent women utilising health services, as the majority of health professionals are men. 20 ^ Women have unequal access to medical treatment for long-term injuries caused by armed conflict. For example, women who have been injured by landmines are less likely to be aware of the prosthetic services available, and cultural sensitivities may prevent them from seeking treatment. For example, the situation in Cambodia demonstrates problems facing women with landmine injuries. First, prosthetics workshops are generally dominated by male personnel, and women may experience shame and embarrassment at the prospect of strangers touching their legs. Secondly, women often find it impossible to arrange for their

203 See Final Report of Investigative Mission into the Treatment of Muslim women in the former Yugoslavia, UN Doc S/25240 (3 Feb 1993); and Forbes Martin, supra note 105. 204 See for example, Health and Welfare in Iraq after the Gulf Crisis, supra note 159, at 12 (describing the lack of contraception and increase in illegal abortions affecting Iraqi women following the Persian Gulf conflict (1990-91)). 205 See for example, ibid (reporting these health problems amongst Iraqi women following the Persian Gulf conflict (1990-91), and as a result of the ongoing economic sanctions against that state). 206 See Looby, supra note 68, at 67 (on the high rate of deaths during child birth, from conditions that would otherwise be considered minor, in Bougainville, as a result of the economic embargo imposed by Papua New Guinea). 207 See F Pelka, "Voices from the War Zone", (Mar/Apr 1995) The Humanist (discussing attacks in Croatia, and Bosnia, where maternity hospitals and gynaecological clinics were among the first targets of Serbian aircraft and artillery). 208 See Report of the United Nations Interagency Gender Mission to Afghanistan, 12-24 November 1997 (Office of the Special Adviser on Gender Issues and Advancement of Women, New York, UN) at para 27; and Asia and Pacific Development Center, supra note 44, at 7. 209 See Machel 1996Report, supra note 105, at 150.


45

family and village responsibilities to be carried out for the two or three weeks that may be required for treatment. 210 Thirdly, the relative poverty of women disadvantages them in obtaining costly prosthetic aids. Moreover, their need for such aids is unlikely to be accorded priority in patriarchal family structures. 211 Rape and acts of sexual violence have serious and life threatening implications for women's health. For women who have been raped, there is a risk of contracting HIV/AIDS. This is a particular problem in Sub-Saharan Africa, the area with the highest rate of the HIV/AIDS virus. 212 In Rwanda, thousands of girls and women who were raped during the 1994 conflict have now tested positive for HIV. 21 ^ Survivors of sexual violence are also at risk of contracting other sexually transmitted diseases,21^ or of sustaining permanent damage to their reproductive system. Surviving "comfort women" have reported a wide variety of health complications.215 Frequently, insufficient medical resources are available to meet the needs of women subjected to sexual violence. For example, the Special Rapporteur on Violence against Women reports that following the 1994 conflict in Rwanda, there were only five gynaecologists available to assist women. While health services are equipped to deal with general injuries, such as bullet wounds and machete cuts, their capacity to adequately address problems resulting from sexual violence is limited.21*' In common with most survivors of armed conflict, women survivors suffer severe psychological trauma. The vulnerability of women to post-traumatic stress disorder, and other psychological conditions, is slowly receiving greater recognition. 21 ' 7 One of the main findings of a study of the impact of the civil war in Afghanistan on the lives of women was the very high incidence of psychosomatic disorders. This trauma was primarily associated with the loss of family

210 211 212 213 214 215

216 217

See Davies, supra note 31, at 108-109. See Machel 1996Report, supra note 105, at 116. See Seager, supra note 35, at 112. See Twagiramariya & Turshen, supra note 46, at 110. However, see Shattered Lives, supra note 6, at 3, 76 (highlighting the problem of attributing causation between rape and HIV/AIDS). See Coomaraswamy 1998 Report, supra note 17, pt III D. See Japan Federation of Bat Associations, Supplementary Explanation of the Recommendation on the Issue of "Comfort Women" (1995) n 40 at 7 (for details of the health problems experienced by the "comfort women"); G Hicks, The Comfort Women (1994) 94 (describing permanent damage caused by "cleansing solutions" to the reproductive systems of the "comfort women"). See Coomaraswamy 1998 Report, supra note 17, s II. See for example, UNHCR, Guidelines on Evaluation and Care of Victims of Trauma and Violence (1993); see Machel 1996Report, supra note 105, at 107. See, however, U Dolgopol, "A Feminist Appraisal of the Dayton Peace Accords", (1997) 19 Adel LR 59 (criticising the Dayton Peace Accords for the lack of support offered to victims of sexual violence in the Former Yugoslavia).

46


members through death, disappearance, or imprisonment. 218 There is some evidence to suggest that the psychological trauma of civil conflict for women is more severe.21 [hereinafter ICRC Advancement of Women], See also Statement of Mrs Renee Guisan member of the ICRC to the Fourth World Conference on Women, Beijing, 4-15 Sep 1995, ICRC < http://www.icrc.org>. 222 See ICRC Advancement of Women, ibid, at 262. 223 Statement by the ICRC to the Commission on Human Rights, 55th Sess., agenda item 12(a) (22 Mar-30 Apr 1999). Cf "Update on ICRC's initiative to better respond to the needs and resources of women affected by armed conflicts", Oct 1999, ICRC < http://www.icrc.org>. 224 This is a somewhat restricted study. The study on women was conducted by two ICRC headquarters personnel, with information supplied from 56 ICRC delegations. 225 J Pictet, The Fundamental Principles of the Red Cross proclaimed by the Twentieth International Conference of the Red Cross, Vienna, 1965: Commentary (1979) 37-51. 226 ICRC, Advancement of Women, supra note 221, at 262. 227 See Federal Political Department Berne, "List of Delegates, Experts and Observers at the Diplomatic Conference", in Final Record of the Diplomatic Conference of Geneva 1949 (1949) 155.

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A Gender View of the Shaping of IHL

what by the time that the two 1977 Protocols came to be negotiated, where two hundred and fourteen women participated. To some extent these statistics are misleading because, from time to time, some individual women have in fact made a significant contribution to the development of IHL. This phenomenon commenced with the wives of the Emperors of Austria and Russia, who persuaded their husbands to convene the first international conference for victims of war in 1868, and is today represented by the more direct input, particularly by women members of the Committee of the ICRC and personnel of the Organisation.228 Although commentators have addressed the impact of the absence of women in the formulation of domestic law, not a great deal of attention has been paid to this phenomenon in the development of international law.22? However, the involvement of women in law making and decision making generally, does not necessarily lead to an increased recognition of the particular experiences and needs of women. It depends on the particular approach of the women concerned and their willingness to challenge the underlying assumptions of the system.

8.

Conclusion

This Chapter has compared the way women experience armed conflict with the legal regime of IHL. To some extent these events are reflected in the protections offered by its rules. If the vulnerability of women to armed conflict were limited to sexual violence of a certain type; to their special needs when pregnant or as mothers of young children; to the types of indiscriminate attacks contemplated by the rules and as interpreted by the military; and if all these events primarily occurred in traditional international armed conflicts; the criticisms that could be levelled against IHL would be limited. Allegations of the discriminatory nature of the regime, in particular, would be unsustainable. This, however, is not the reality of armed conflict for women. We have demonstrated how discrimination against women in society generally has translated itself into the provisions of IHL, and how the unequal status of women also exacerbates what appear initially to be neutral factors experienced by both men and women. Without these insights any attempts to develop the regime will necessarily be limited in their effectiveness.

228 Information supplied to the authors by Jean Perrenoud, ICRC Geneva, 1999; and see generally, C Moorhead, Dunant's Dream: War, Switzerland and the History of the Red Cross (1999). 229 See, however, H Charlesworth, "Transforming the United Men's Club: Feminist Futures for the United Nations", (1994) 4 Transnational Law & Contemporary Problems All.

CHAPTER 5 UN DEVELOPMENTS CONCERNING WOMEN AND ARMED CONFLICT

1.

Introduction

Chapters 3 and 4 focused upon the regime of IHL, its limited response to the experience of women in armed conflict, and explanations for these shortcomings. We concluded that IHL is a discriminatory regime in that it takes as its norm the experience of a certain type of male. Moreover, IHL only takes into account a limited range of the experiences of women in armed conflict. In this Chapter, we turn our attention to the contribution that the United Nations (UN), and its specialised agencies, through their focus on human rights, have made towards addressing the distinctive effect of armed conflict on women.1 The UN is having an increasingly significant impact on the development of both "soft" and "hard" norms relating to armed conflict.2 The UN can be an effective mechanism for focusing international attention on an issue and formulating a coordinated strategy in response and, as such, represents the most promising forum for a comprehensive approach to the problem of women and armed conflict. Our objectives in this Chapter are twofold. First, we provide an overview of what has happened in relation to women and armed conflict within the UN framework. Shortly after its inception, the UN adopted a number of initiatives

Our analysis is limited to the major initiatives in this field, and does not include the work of the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the Former Yugoslavia, nor the International Criminal Court, as these developments are dealt with infra Chapter 6. There are other responses to women and armed conflict by various agencies within the UN. See for example, The Impact of Armed Conflict upon Children: Report submittedpursuant to the resolution adopted by the General Assembly A/RES/48/157 to the Fifty First session of the United Nations General Assembly, UN Doc A/51/306 (26 Aug 1996) [hereinafter Machel 1996 Report] para 254 (describing UNIFEM programmes focusing on women and armed conflict, such as the African Women in Crisis programme, which is working to strengthen the capacity of women's peace movements throughout Africa). Moreover, since the adoption of the UN Charter there has been increasing convergence between the regimes of IHL and human rights law. See the sources cited supra Chapter 4 note 113.

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136

UN Developments Concerning Women and Armed Conflict

designed to prevent the repetition of the events of World War II. 3 However, these developments paid little attention to the distinctive situation of women in armed conflict. It was not until the late 1960s, following the 1968 Conference on Human Rights in Teheran, that the topic of women and armed conflict first appeared on the agenda of the UN. The discussion commences with the work of the Commission on the Status of Women (CSW) between 1968 and 1974, on the "protection of women and children in emergency and armed conflict".^ During the period between 1974 and 1990, little consideration was given to the topic of women and armed conflict. However, in the early 1990s, the issue of sexual violence against women in armed conflict achieved prominence within the UN system. Two particular cases of widespread sexual violence during armed conflict prompted this development. One was the struggle of the Asian women forced into sexual slavery by the Japanese Army prior to, and during World War II, to have the crimes committed against them acknowledged and redressed. 5 Secondly, towards the end of 1992, there was widespread media coverage of the sexual atrocities committed during the armed conflict in the former Yugoslavia.^ Strong and persistent demands for a response to these events came from around the globe. At the same time, advocates for women's rights intensified their efforts to have violence against women recognised as a human rights issue. Reports of sexual violence committed against women in the former Yugoslavia provided powerful support for the argument that violence against women is a fundamental human rights violation. The UN took various steps to respond to the sexual violence against women in the former Yugoslavia, which appeared to reflect a genuine concern for the human rights of women. However, the inadequate response

3

For example: the Convention on the Prevention and Punishment of the Crime of Genocide was opened for signature, ratification and accession pursuant to General Assembly Resolution 260A (III), on 9 Dec 1948; in 1950, the International Law Commission (ILC) reported on the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal pursuant to General Assembly Resolution 95(1), 11, Dec 1946; and the ILC also commenced work on the formulation of a Draft Code of Offences Against the Peace and Security of Mankind, and a Draft Statute for an International Criminal Court. See also Basic Principles for the Protection of Civilians in War- Time, adopted by the GA in resolution 2675 (XXV) of 9 Dec 1970 [hereinafter Basic Principles for Civilians] (ommitting any specific reference to women).

4

The CSW was established by the Economic and Social Council in 1946, in order to promote the rights of women in political, economic, civil, social and educational fields, ECOSOC Res 11(11) of 21 June 1946. For further information, see UN Womenwatch, . See the further discussion infra notes 53 ff and accompanying text. See the further discussion infra notes 74 ff and accompanying text.

5 6


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of the UN to the sexual violence during the 1994 conflict in Rwanda raises doubts as to whether this action was prompted by concern over the treatment of women, or whether other factors were decisive. In the period following the 1995 United Nations Fourth World Conference on Women (Beijing Conference), we consider the extent to which recognition of the distinctive impact of armed conflict on women has extended beyond the issue of sexual violence. The 1995 Beijing Platform for Action placed the problem of women and armed conflict in a broader context and, most importantly, recognised that the vulnerability of women during armed conflict is a direct consequence of the discrimination that women face throughout their lives.7 This expanded focus on women and armed conflict has subsequently been reflected in some of the initiatives adopted by the UN resulting in a more comprehensive approach to the impact of armed conflict on the lives of women. Secondly, in this Chapter we examine the factors that determine how the UN responds to the suffering of women during armed conflict. We identify the characteristics of the woman that is discernible in developments within the UN context. A comparison is then made of the influences that have shaped IHL and the work of the UN on women and armed conflict.

2.

Early Approaches: The Commission on the Status of Women 1968-1974

At its twenty-second session, the CSW adopted Resolution 4(XXII) on the Protection of Women and Children in Emergency or War Time, Fighting for Peace, National Liberation and Independence.8 The 1968 International Conference on Human Rights in Teheran, which had addressed the issue of human rights and armed conflict, was the impetus for this resolution.9 The topic of women and children in emergency and conflict situations was first discussed in detail at the 23rc' session of the CSW in 1970, and then in subsequent sessions in 1972 and 1974. These deliberations culminated in the adoption of the 1974

See Fourth World Conference on Women, Action for Equality Development and Peace, Beijing Declaration and Platform for Action, UN Doc A/Conf. 177/20 (1995) [hereinafter Beijing Declaration, and Beijing Platform for Action]. See Res 4(XXII) of 3 Feb 1969; ECOSOC 64th session, 66 (27 Jan-12 Feb 1969), UN Docs E/CN.6/527, E/4619. See Res I and XXIII on human rights and armed conflict adopted by the 1968 International Conference on Human Rights, as well as post-conference initiatives, such as GA Res 2443 (XXIII) 19 Dec 1968, on respect for and Implementation of Human Rights in Occupied Territories, and 2444(XXIII) on human rights in armed conflict.

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General Assembly Declaration on the Protection of Women and Children in Emergency and Armed Conflict.10 To assist the Commission in its work, the UN Secretary-General prepared reports on the situation of women and children in emergency and armed conflict, compiled from information in existing UN documents, and provided by relevant specialised agencies of the UN, the International Committee of the Red Cross (ICRC), and NGOs.1 1 These reports, as well as the debates that took place in the Commission, indicate the limited information available on the specific conditions affecting women and children during armed conflict and other emergency situations.12 In the CSW, various delegations urged the adoption of measures to obtain more detailed information. ^ The attitude of States to the work of the CSW on the protection of women and children is indicative of the limited understanding of the problem that prevailed at the time. To begin with, there was considerable opposition to the inclusion of the topic on the agenda at all. Some delegations objected to what they characterised as "special privileges" for women civilians, who they regarded as no different from the remainder of the civilian population.1^ There was no recognition of the distinctive impact of armed conflict on women, nor the value of incorporating the perspective of women into developments in this area.

10

11

12 13 14

CSW Res XIII of 1974 included a draft declaration for consideration by the ECOSOC. ECOSOC Res 1861 (LVI) of 16 May 1974 recommended the GA adopt a Declaration on the Protection of Women and Children in Emergency and Armed Conflict. The GA considered the ECOSOC recommendation and adopted the Declaration on the Protection of Women and Children in Emergency and Armed Conflict in GA Res 3318 of 14 Dec 1974 [hereinafter 1974 GA Declaration]. See Report by the Secretary-General on the Protection of Women and Children in Emergency or WarTime, Fighting for Peace, National Liberation and Independence, UN Doc E/CN.6/536 (24 Mar 1970) [hereinafter Secretary-General 1970 Report]; Report by the Secretary-General on the Protection of Women and Children in Emergency or War-Time, Fighting For Peace, Self-determination, National Liberation and Independence; UN Doc E/CN.6/561 (21 Jan 1972) [hereinafter Secretary-General 1972 Report]; Report of the Secretary-General, Protection of Women and Children in Emergency and Armed Conflict in the Struggle for Peace, Self-determination, National Liberation and Independence, UN Doc E/CN.6/586 (26 Dec 1973) [hereinafter Secretary-General 1973 Report]. See for example, Secretary-General 1972 Report, ibid, at para 50. See comments of the representative of Iraq, CSW 1972 Summary record of minutes, UN Doc E/CN.6/min (5 May 1972) [hereinafter 1972 Summary Records] 223. See Report of the Commission on the Status of Women, UN Doc E/CN.6/546 (23 Mar-10 Apr 1970) [hereinafter CSW 1970 Report] para 144; and Report of the Commission on the Status of Women, UN Doc E/CN.6/568 (4 Feb-3 Mar 1972) [hereinafter CSW 1972 Report] para 224.


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It was also argued that the development of international humanitarian law (IHL) was more properly the province of the ICRC.1^ In particular, concerns were expressed that the topic overlapped with the drafting of what became the 1977 Additional Protocols to the four 1949 Geneva Conventions.1*^ Some delegations argued that, as provisions protecting women (and children) were to be included in the Protocols, additional consideration of the issue was unnecessary.17 These objections failed to recognise the value of the work of the CSW as a potential source of information during the drafting of the Protocols. Indeed, the Secretary-General reported that the views of CSW on women and armed conflict and the report from the 24* session of CSW were brought to the attention of the 1972 Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts,18 and that the draft Protocols were revised in light of the comments.1' Some States objected to consideration of the situation of women and children in emergency and armed conflict, on political grounds. The inclusion of the topic was initially prompted by the events in the Middle East, although it was subsequently expanded to cover most regions of the world.20 Israel argued that "the inclusion of the item on the Commission's agenda had been an undisguised attempt to slander Israel and to use a humanitarian subject for political ends."21 Generally, the debate in the CSW was marked by political posturing, and was used to further the agenda of various States.22

15

16

17 18 19 20 21 22

See for example the comments of the representative of the United Kingdom during the 25th Session of CSW, as reported in the Summary Records of the 613th-628th meetings, UN Doc E/CN.6/SR.613-628 (13 May 1974) [hereinafter 1974 Summary Records] 94-95. See also Report of the Commission on the Status of Women, UN Doc E/CN.6/546 (23 Mar-10 Apr 1970) para 144. Protocol Additional to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims of International Armed Conflicts, adopted in 1977 (Protocol I), (1977) 16 ILM 1391 [hereinafter Protocol I] and Protocol Additional to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims of Non-international Armed Conflicts, adopted in 1977 (Protocol II), (1977) 16 ILM 1442 [hereinafter Protocol II]. See 1974 Summary Records, supra note 15. See Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 3 May-3 June 1972 (Second Session). See Secretary-General 1973 Report, supra note 11, at paras 10-11. See also Y Khushalani, Dignity and Honour of Women as Basic and Fundamental Human Rights (1982) 116-117. See Para 1 of CSW Res 4(XXII) (referring specifically to the situation of women in Israel and the Occupied Territories, Jordan, Syria, West Bank, Gaza and North Sinai). 1972 Summary Record, supra note 13, at 227. See for example, ibid, at 215 (US and USSR); and 1974 Summary Record, supra note 15, at 70, 84-86, 88-92, 95 (Byelorussian Soviet Socialist Republic, USSR and Chile), 106, 108 (China and USSR).

140


Those States in favour of considering the topic of women and children in emergency and armed conflict, emphasised that the aim was not to provide "special" privileges for women, but rather to protect a group that was particularly vulnerable. 23 However, their concern was predominantly limited to the role of women as mothers and care-givers.2^ The inclusion of women and children in the same category, despite their different experiences in armed conflict (and emergency situations), is evidence of this perspective. The subsequent 1974 GA Declaration emphasises the important role that women play "in society, in the family and particularly in the upbringing of children", and the corresponding need to accord them special protection.25 Despite these difficulties, the reports of the Secretary-General, particularly the later ones, reveal some important information about women who had been targeted in conflict zones, particularly in Africa2^ and the Middle East.2^ However, the prevalence of sexual violence during armed conflict was given minimal consideration. For example, in the February addendum to the 1972 Report of the Secretary-General, addressing "the recent hostilities on the Indian subcontinent", the coverage was confined to the plight of the refugee population, particularly mothers and children. No specific reference was made to sexual violence, despite the contemporaneous media coverage of the mass rape of Bengali women by Pakistani soldiers.28 During the 1972 CSW debates, some delegations briefly referred to the fact that women were subjected to abuse, such as abduction and rape, during armed conflict generally.2^ Others euphemistically referred to the rapes as "the tragic situation of large numbers of girls and women,

23 24 25 26

27

28

29

See CSW 1970 Report, supra note 14, at para 145. Ibid. See also the comments of the representative of Egypt during the 1974 debate of the CSW, UN Doc E/CN.6/SR.613-628 (13 May 1974) 87. See 1974 GA Declaration, supra note 10, Preamble. See the reference to the Ad Hoc Working Group of Experts established by the Commission on Human Rights Res 2(XXIII), 2 (XXIV), 21 (XXV), 8(XXII), regarding the mistreatment of women in Southern Africa and in the African territories under Portuguese administration, in the Secretary-General 1972 Report, supra note 11, at paras 39-49. See also reference to the reports of the Special Committee on Apartheid, established by the General Assembly in November 1962, regarding the ill-treatment of some women political activists in South Africa, including Winnie Mandela, in the Secretary-General 1973 Report, supra note 11, at paras 108-109. See the reference to the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories established by GA Res 2443 (XXIII), 1968, regarding the ill-treatment of women at the hands of Israeli forces, in the Secretary-General 1972 Report, supra note 11, at paras 28-38. See S Brownmiller, Against Our Will: Men, Women and Rape (1975) 79 (confirming that media reports of these events first appeared in December 1971, and had become prominent by midJanuary 1972). See CSW 1972 Report, supra note 14, at para 226.


141

particularly in parts of the Indian subcontinent, in the aftermath of war".3° The reluctance at the time to discuss sexual matters openly in such forums as the UN contributed to the limited focus on sexual violence. A 1972 CSW resolution, for the first time, makes reference to the fact that "women in war-torn areas are often victims of many forms of assault on personal dignity".31 This could be interpreted as a reference to sexual violence. To some extent, sexual violence during the war in Bangladesh was covered in the 1973 Report of the Secretary-General,32 and while there is no explicit mention of sexual violence in the 1974 GA Declaration, there is a reference to the need for States to take steps to prohibit, inter alia, "degrading treatment". This type of language historically has been used to refer to sexual violence.33 Nonetheless, there was no strong statement that rape and other similar abuses, such as those suffered by women in Bangladesh, were crimes of violence and a violation of the human rights of women. Overall, there was little recognition of the seriousness of sexual violence during armed conflict. The reports of the Secretary-General did include some information about the expulsion of women and children from Johannesburg, and malnutrition affecting women in "transit camps" in South Africa. Details were provided of the risks facing refugee women,34 discriminatory laws in South Africa, the vulnerability of women caused by legal illiteracy, and the impact of resettlement schemes in the homelands on women and children.35 As acknowledged by the Secretary-General, however, such information was scarce, and broader issues relating to women and armed conflict were largely ignored in the CSW debates on the topic. The importance of the participation of women in various initiatives concerning armed conflict was, however, acknowledged. For example, delegations emphasised the importance of the participation of women in the parallel review of the four 1949 Geneva Conventions.36 Attention was drawn to the low number of women participating in the first session of the Conference of Government Experts in March 1971.37 Only seven of the one hundred and seventy eight participants were women.38 In 1972, the CSW urged States to involve women in

30 31 32 33 34 35 36 37

38

Ibid. CSW Res XII, adopted on 2 Mar 1972, Preamble. Secretary-General 1973 Report, supra note 11, at para 104. See 1974 GA Declaration, supra note 10, para 4. See also Khushalani, supra note 19, at 114-115See Secretary-General 1973 Report, supra note 11, at para 40. Ibid, at paras 116, 117. See CSW 1972 Report, supra note 14, at para 225. See 1972 Summary Record, supra note 13, at 241. For details of the Conference see, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts 1971 (ICRC). Ibid.

142


the Conference of Government Experts to be convened by the ICRC later that year.39 Some States acknowledged that the absence of relevant information on the situation of women and armed conflict could only be remedied through the more active participation of women in such processes.^0 However, this concern did not manifest itself in concrete suggestions for achieving this aim. Several initiatives for improving the situation of women were proposed in the course of the consideration of women and children in emergency and armed conflict situations by the CSW. For example, the Secretary-General raised the possibility of developing the notion of "neutralised zones", to improve protection for women and children.41 This proposal, however, was not developed further, and did not find its way into the 1974 GA Declaration, which is couched in vague terms, and emphasises the role of women as mothers and caregivers. Nevertheless, there are some significant advances for the protection of women and children in the 1974 GA Declaration. For example, "... cruel and inhuman treatment of women and children, including imprisonment, torture, shooting, mass arrests, collective punishment, destruction of dwellings and forcible eviction, committed by belligerents in the course of military operation or in occupied territories", is criminalised.^2 Moreover, the 1974 GA Declaration reaffirms the right of women and children to: "shelter, food, medical aid or other inalienable rights, in accordance with the provisions of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the Declaration of the Rights of the Child or other instruments under international law". Although extremely vague, this does at least raise some of the broader issues facing women as a result of armed conflict. Overall, however, given the reality of armed conflict for women, it is clear that the 1974 GA Declaration is inadequate in identifying and responding to the distinctive impact of armed conflict for women. Despite the limited scope of the deliberations of the CSW on women and armed conflict, their significance lies in the fact that it was the first time the issue of women and armed conflict was identified, and some effort made to improve the situation of women. Overall, a forum was provided that focussed some much-needed attention on the issue. Governments, the UN and its specialised agencies, and NGOs, were urged "to mobilize world public opinion in support of women and children ... in emergency and armed conflict". To some extent,

39 40 41 42

CSW Res XII, protection of women and children in emergency and armed conflict in the struggle for peace, self-determination, national liberation and independence, 24th session, 1972, para 3. Comments of the representative of Finland, 1972 Summary Record, supra note 13, at 216. See Secretary-General 1970 Report, supra note 1 l,at paras 23, 24. See 1974 GA Declaration, supra note 10, at para 5.


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the work of the CSW compensated for the omission of the situation of women from previous initiatives, such as the eight basic principles for the protection of civilians in armed conflict, adopted by the General Assembly in 1970.43

3.

1974-1990: The Topic of Women and Armed Conflict Disappears from the Agenda

Following the adoption of the 1974 GA Declaration, no further consideration was given to women and armed conflict as a discrete topic for many years. The Economic and Social Council (ECOSOC) continued to pass resolutions on specific cases, such as the situation of Palestinian women and children in the occupied Arab territories,44 women and children in Namibia,4^ and women and children living under apartheid.46 In the 1980s, the ECOSOC also began to acknowledge the particular vulnerability of women as refugees.47 Nonetheless, there was no attempt to make any progress on the general problem of woman and armed conflict, despite the proliferation of conflicts throughout the world. The Security Council, the organ with primary responsibility for the maintenance of international peace and security, rarely acknowledged the particular experience of women during armed conflict. On the few occasions when women were referred to, it was generally limited to their situation when "expectant mothers" and "maternity cases".48

43 44

45 46

47

48

Basic Principles for Civilians, supra note 3. For example, UN Docs E/RES/1982/18 (4 May 1982); E/RES/1984/18 (24 May 1984); E/RES/1988/25 (26 May 1988); E/RES/1990/11 (24 May 1990); E/RES/1991.19 (30 May 1991); E/RES/1992/16 (30 July 1992); E/RES/1993/15 (27 July 1993); and E/RES/1995/30 (25 July 1995). These resolutions, inter alia, recognise the poor living conditions of the Palestinian people, particularly the women and children; request the preparation of reports on the situation of these women as well as continued monitoring; and request that Governments, NGOs and InterGovernmental Organisations provide assistance to Palestinian women to facilitate income-generating activities and other facilities for women. See for example, UN Docs A/RES/35/206 (Dec 1980); E/RES/1988/24 (May 1988); E/RES/1989/31 (24 May 1989); E/RES/1990/6 (24 May 1990). See for example, UN Docs E/RES 1982/24 (May 1982); E/RES/1984/17 (24 May 1984); E/RES/1986/22 (23 May 1986); E/RES/1988/23 (23 May 1988); E/RES/1989/33 (24 May 1990); E/RES/1991/20 (30 May 1991); E/RES/1992/14 (30 July 1992); E/RES/1993/13 (27 July 1993). See for example, UN Docs E/RES/1982/25 (4 May 1982) (women and children refugees); E/RES/1986/25 (23 May 1986) (measures of assistance provided to South African, Namibian, and refugee women). For example, UN Doc S/RES 666 (13 Sep 1990) paras 3, 4 (resolving that, following the 1990 invasion of Kuwait by Iraq, particular attention should be paid to monitoring the availability of food for "persons who might suffer specially, such as children under 15 years of age, expectant mothers, maternity cases, the sick and the elderly").

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4.


The 1990s: Focus on Sexual Violence

In the early 1990s, several developments contributed to the resurgence of interest in the issue of women and armed conflict within the UN system. The focus, however, of these initiatives was almost exclusively limited to sexual violence. a.

The United Nations Compensation Commission

One of the earliest measures to address the impact of wartime sexual violence went largely unnoticed. In the aftermath of the Persian Gulf Conflict (1990-91), the Security Council established the United Nations Compensation Commission (UNCC) in order to provide compensation for damage resulting from Iraq's invasion of Kuwait.^ Important developments for women subjected to sexual violence during armed conflict resulted from the work of the UNCC.5° In response to documentation of the rape of Kuwaiti women by Iraqi soldiers,51 the U N C C took steps to ensure that these women received compensation for their injuries.52 b.

The "Comfort Women"

In December 1991, three South Korean women filed a claim in the Tokyo District Court, alleging that they had been forced into sexual slavery by the Japanese military prior to, and during, World War 11.53 A series of similar claims filed by ®ther Asian women followed, giving rise to a world-wide campaign for justice for these women, euphemistically referred to as "comfort women".

49

50 51 52 53

See UN Docs S/RES 687 (8 Apr 1991); and S/RES/692 (20 May 1991). See also Report of the Secretary-General Pursuant to Paragraph 19 of Security Council Resolution 687 (1991), UN Doc S/22559 (2 May 1991). See the further discussion of the UNCC infra Chapter 6 notes 338 ff and accompanying text. See Report of the Special Rapporteur on the Situation of Human Rights in Kuwait under Iraqi Occupation, UN Doc E/CN.4/1992/26 (1992). See the further discussion infra Chapter 6 notes 375 ff and accompanying text. See Japan Federation of Bar Associations, Supplementary Explanation ofthe Recommendations on the issue of "Comfort Women" (1995) 13. See also, D Boling, "Mass Rape, Enforced Prostitution, and the Japanese Imperial Army: Japan Eschews International Legal Responsibility?", (1995) 32 Colum JTL 533. For background on the case of the "comfort women" see generally, Report of the Special Rapporteur on Violence against Women, its Causes and Consequences on the Mission to the Democratic People's Republic of Korea, the Republic of Korea and Japan on the Issue of Military Sexual Slavery in Wartime, UN Doc E/CN.4/1996/53/Add.l (4 Jan 1996) [hereinafter Report on the "Comfort Women']; and U Dolgopol & S Paranjape, Comfort Women: An Unfinished Ordeal (1994).


145

The claims of the "comfort women" were first raised within the UN system during the 1992 session of the UN Commission on Human Rights, and the issue has been considered in some detail in the subsequent sessions of the Working Group on Contemporary Forms of Slavery.54 The Working Group made several concrete recommendations regarding the provision of redress to these women, including the payment of monetary compensation. The possibility of the ECOSOC taking the matter to the International Court of Justice was also raised.55 Furthermore, at its 47 th session, the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, appointed a Special Rapporteur on the "Question of Systematic Rape and Sexual Slavery and Slavery-like Practices During Wartime".56 The situation of the "comfort women" is a significant focus of the reports of the Special Rapporteur, who has submitted concrete recommendations for providing them with redress. 57 However, while the dialogue concerning the "comfort women" made an important contribution towards raising the profile of war time sexual violence, very little in real terms has been achieved for these women. 58

54

See for example, Report of the Working Group on Contemporary Forms of Slavery on its Eighteenth Session, UN Doc E/CN.4/Sub.2/1993/30 (23 June 1993) paras 81-87 [hereinafter Slavery Working Group 1993 Report]; Report of the Working Group on Contemporary Forms of Slavery on its Nineteenth Session, UN Doc E/CN.4/Sub.2/1994/33 (13 June 1994) paras 89-97; Report of the Working Group on Contemporary Forms of Slavery on its Twentieth Session, UN Doc E/CN.4/Sub.2/1995/28 (13 June 1995) paras 108-118; Report of the Working Group on Contemporary Forms of Slavery on its Twenty-First Session, UN Doc E/CN.4/Sub.2/1996/24 (19 July 1996) paras 86-95; Report of the Working Group on Contemporary Forms of Slavery on its Twenty-Second Session, UN Doc E/CN.4/Sub.2/1997/13 (1997) paras 66-72; and Report of the Working Group on Contemporary Forms of Slavery on its Twenty-Third Session, UN Doc E/CN.4/Sub.2/1998/14 (6 July 1998) paras 80-84. See generally, K Parker & J Chew, "Compensation for Japans World War II War-Rape Victims", (1994) 17 Hast Int'l & Comp L Rev 497 at 532.

55 56

See Slavery Working Group 1993 Report, ibid, at para 81. The work of the Special Rapporteur on this topic had in fact commenced several years earlier. Ms Linda Chavez was originally appointed to undertake the study at the 45th session of the SubCommission, but this decision was reversed at the 46th session when the Sub-Commission requested that Ms Chavez simply submit, without financial implications, a working paper on the situation of systematic rape, sexual slavery and slavery-like practices during wartime, including internal armed conflict. Following consideration of this paper (UN Doc E/CN.4/Sub.2/1995/38) at its 47th session, the Sub-Commission appointed Ms Chavez as Special Rapporteur to undertake an in-depth study on the topic, (Sub-Commission res 1995/14). Ms Gay McDougall subsequently took over the role of Special Rapporteur. See Subcommission on the Prevention of Discrimination and Protection of Minorities, E/CN.4/SUB.2/DEC/1997/114 (1997). See the further discussion infra notes 157 ff and accompanying text. The Special Rapporteur on Violence against Women has also investigated the situation of the "comfort women". See Report on the "Comfort Women", supra note 53. See the further discussion infra Chapter 6 at notes 330-337 and accompanying text.

57

58

146

c.


The Campaign to Eradicate Violence Against Women

Prior to the early 1990s, gender-based violence had been generally regarded as inappropriate for international action. Even the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), adopted in 1979, has no specific provisions on violence against women. 59 The World Conference to Review and Appraise the Achievements of the UN Decade for Women: Equality, Development and Peace, held in Nairobi in 1985 (Nairobi Conference), acknowledged the prevalence of violence against women.^° Although governments were urged to respond to the problem, there was no express recognition of violence against women as a human rights issue. In the years following the Nairobi Conference, the issue of violence against women received consideration within the UN system, particularly by the CSW.61 In addition, in 1992 the Committee on the Elimination of Discrimination against Women, the monitoring body of CEDAW, adopted a general recommendation on "Violence against Women".^2 However, the sexual violence committed during the armed conflict in the former Yugoslavia brought the issue to prominence. Towards the end of 1992, reports emerged of the use of deliberate and systematic sexual violence as a weapon of war by Bosnian Serb forces.63 A perception emerged that the Bosnian Serb military command had established "rape camps" as a deliberate strategy to achieve their military objectives.^ The worldwide outrage provoked by these reports provided important support for the argument that violence against women is a fundamental human rights violation, of concern to the international community at large. From this time, violence against women in armed conflict became an integral part of the wider campaign to eradicate violence against women.

59 60 61

62 63

64

Convention on the Elimination of Ml Forms of Discrimination against Women, UN Doc A/34/46 (1979) [hereinafter CEDAW]. See Report of the World Conference to Review and Appraise the Achievements of the United Nations Decade For Women: Equality, Development and Peace, Nairobi, 15-26 July 1985. For a detailed account of the development of the issue of violence against women within the UN system see, Preliminary Report Submitted by the Special Rapporteur on Violence Against Women, its Causes and Consequences, Ms. Radhika Coomaraswamy, UN Doc E/CN.4/1995/42 (22 Nov 1994) [hereinafter Coomaraswamy 1994Preliminary Report^ paras 20-45UN Committee on the Elimination of Discrimination Against Women (CEDAW), Eleventh Session, General Recommendation 19, UN Doc CEDAW/C/1992/L.l/Add.l5 (1992). See for example, reports in The Miami Herald'(18 Dec 1992); and Die Welt (\ Oct 1992), cited in C MacKinnon, "Crimes of War, Crimes of Peace", in S Shute & S Hurley eds, On Human i The Oxford Amnesty Lectures 1993 (1993) 83. See the sources cited supra Chapter 2 note 67.


147

The 1993 UN World Conference on Human Rights held in Vienna was a pivotal event for the recognition of women's human rights, and particularly the issue of violence against women.65 The Vienna Declaration and Programme of Action for the first time recognises violence against women as a human rights issue.66 The Declaration specifically acknowledges the vulnerability of women to sexual violence during armed conflict, and condemns it as a human rights violation requiring a "particularly effective response".67 In addition, a tribunal organised by NGOs during the Conference heard testimony regarding violations of women's human rights around the world, including sexual violence during armed conflict. This testimony included statements from former "comfort women", Palestinian, Somali, and Peruvian women, as well as women from the former Yugoslavia.6^ Developments in relation to violence against women coalesced in December 1993, when the GA adopted the Declaration on the Elimination of Violence against Women. 69 The Declaration identifies three main categories of violence against women, namely physical, sexual and psychological violence occurring: within the family; within the general community; and that perpetrated or condoned by the State. In the context of the latter category, the Declaration explicitly recognises that women in conflict situations are especially vulnerable to violence. 70 In March 1994, the Commission on Human Rights appointed a Special Rapporteur on Violence against Women, including its Causes and Consequences.71 The Special Rapporteur has examined violence against women in armed conflict situations as part of her mandate. 72

65

66

67 68 69 70 71

72

For a discussion of the development of the international women's human rights agenda, see C Enloe, "Afterword: Have the Bosnian Rapes Opened a New Era of Feminist Consciousness?", in A Stiglmayer ed, Mass Rape: The War Against Women in Bosnia-Herzegovina (1994) 219 at 225227. Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights held in Vienna from 14 to 25 June 1993, UN Doc A/Conf. 157/24 (13 Oct 1993) [hereinafter Vienna Declaration]. Vienna Declaration, ibid, para 38. See also paras 28, 29. N Reilly ed, Testimonies of the Global Tribunal on Violations of Women's Human Rights at the United Nations World Conference on Human Rights (1993). Declaration on the Elimination of Violence Against Women, adopted 20 Dec 1993, GA Res 48/104. Ibid, Preamble, and Art 2. Commission on Human Rights Resolution, 1994/45 (4 Mar 1994). The mandate of the Special Rapporteur was extended for a further three-year period in 1997. See Commission on Human Rights Resolution, 1997/44 (1997). See the further discussion of the work of the Special Rapporteur infra notes 167-170 and 197 ff and accompanying text.

148

d.


Rape in Armed Conflict as a Threat to International Peace and Security

(i) The former Yugoslavia The treatment of women during the conflict in the former Yugoslavia was instrumental in furthering the campaign to eliminate violence against women generally, but the significance of these events was more widespread. For the first time, sexual violence against women during armed conflict emerged as a distinct issue within the UN system. In particular, the sexual abuse of women during armed conflict was linked with the maintenance of international peace and security, and the United Nations system as a whole was prompted to respond. In December 1992, the Security Council, "[a]ppalled by reports of the massive, organized and systematic detention and rape, in particular of Muslim women, in Bosnia and Herzegovina", demanded that all camps for women be immediately closed/3 A series of subsequent resolutions also referred to the rape of women in the former Yugoslavia.^ During the same period, a Commission of Experts to investigate violations of IHL in the former Yugoslavia (Yugoslav Commission) was established by the Secretary-General at the request of the Security Council.^ The Yugoslav Commission reported to the Secretary-General on grave breaches of IHL during the conflict in the former Yugoslavia.76 Throughout its investigations, the Yugoslav Commission gave serious consideration to the issue of sexual violence. In its Interim Report, the Commission referred to allegations of "widespread and systematic rape and other forms of sexual assault", that had been specifically investigated.^ Further, "systematic sexual assault" was listed as one of the general areas to be given priority in future investigations.?8 Accordingly, in its Final Report, the Yugoslav Commission focused specifically on sexual violence.79 The

73 74

75 76 77 78 79

UN Doc S/RES 798 (18 Dec 1992). See for example, UN Doc S/RES/820 (17 Apr 1993) (condemning the massive, organised and systematic detention and rape of women, and re-affirming the individual responsibility of the perpetrators); UN Docs S/RES/827 (25 May 1993) (expressing alarm at the systematic detention and rape of women); and S/RES/1019 (9 Nov 1995) (expressing concern over reports of rape and deportation of civilians). See UN Doc S/RES/780 (1992). Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc S/25274 (26 Jan 1993) para 1. Ibid, para 58. Ibid, para 66(c). See Final Report ofthe Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc SI 1994/674 (1664) [hereinafter Yugoslav Commission 1994 Final Report]. The report of the Commission includes a number of annexes, several of which deal specifically with sexual assault and comprise over 190 pages of the report. See S/1994/674/Add.2 (28 Dec 1994, Annexes IX, IX.A and IX.B).


149

Yugoslav Commission referred to approximately 1,100 reported cases of sexual violence. 80 Field investigators, including lawyers, psychologists, and psychiatrists, conducted 223 interviews in Croatia. 81 This was the first time that lawyers and mental health professionals had worked together in a UN field mission of this type. 82 Several patterns of rape were identified, namely: sexual assaults by individuals or small groups in conjunction with looting and intimidation, occurring before hostilities commenced in a particular area; sexual assaults, often carried out in public, in conjunction with fighting in a particular area; sexual assaults against women in detention; and the detention of women solely for the purpose of sexual assault, either with the intention of inflicting harm upon the women, or for the gratification of the perpetrator.8^ Perpetrators frequently stated they were trying to impregnate the women concerned, and those women who became pregnant as a result of rape, were detained until termination of their pregnancy was no longer an option. 8 ^ Many victims reported to the Yugoslav Commission that perpetrators made comments about raping pursuant to orders, and stated the objective of ensuring that victims and their families would be driven from the area.8^ The Yugoslav Commission concluded that, although all sides to the conflict had committed sexual violence, by far the majority of victims were Bosnian Muslims, whereas the vast majority of perpetrators were Bosnian Serbs. More than sixty percent of the detention sites, where sexual assault occurred, were reportedly controlled by the Bosnian Serbs.8& A number of factors were cited as evidence of an over-all pattern of sexual assault in the former Yugoslavia. These included: similarities among practices in non-contiguous geographic areas; simultaneous commission of other humanitarian law violations; simultaneous military activity; simultaneous activity to displace civilian populations; common elements of the commission of rape and sexual assault; maximising shame and humiliation to not only the victim but also the victim's community; and the timing of the alleged rapes and sexual assaults.8'

80 81 82 83 84 85 86 87

See Annex IX, Rape and Sexual Assault, UN Doc S/1994/674/Add.2 vol V (28 Dec 1994) [hereinafter Annex IX\ IA. Ibid, at note 1 and accompanying text. See I Guest, On Trial, The United Nations, War Crimes, and the Former Yugoslavia (1995) 88. Annex IX, supra note 80, pt IC. Ibid, at 22 and accompanying text. Ibid, pt IC. Ibid. Ibid.

150


The Yugoslav Commission was preoccupied with the connection between ethnic cleansing and sexual violence, and the existence of detention camps in which sexual violence was perpetrated was a significant focus of its Final Report. In the view of the Commission, the large number of allegations of rape and sexual assault in places of detention indicated "a policy of at least tolerating rape and sexual assault or the deliberate failure of camp commanders and local authorities to exercise command and control over the personnel under their authority." 88 Ultimately, however, the Yugoslav Commission acknowledged that the use of rape as a strategy of warfare had not been conclusively established. 8 9 The Security Council expressed grave concern over the reports of widespread violations of IHL, and determined that the situation in the former Yugoslavia constituted a threat to international peace and security. The Council resolved that, in the circumstances of the former Yugoslavia, the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) under Chapter VII of the UN Charter would contribute to the restoration and maintenance of peace.5° Both Security Council resolutions relating to the establishment of the ICTY refer to rape. In resolution 808, the Security Council expressed its grave concern over the treatment of Muslim women in the former Yugoslavia.91 In resolution 827, the Security Council expressly refers to the "massive organized and systematic detention and rape of women." 92 The Security Council debates on resolutions 808 and 827, support the proposition that sexual violence against women was one of the foremost concerns in establishing the ICTY. 93 Moreover, the ICTY has subsequently taken a progressive approach to some aspects of the issue of sexual violence against women. 9 ^ The specific recognition of the rape of women in the former Yugoslavia was also evident in the response of other UN bodies. The GA passed several resolutions condemning this abused I n August 1992, the Human Rights Commission

88 89 90 91 92 93

94 95

Ibid, pt ID. Ibid. See UN Docs S/RES/808 (22 Feb 1993), and S/RES/827 (25 May 1993). See UN Doc S/RES 808 (22 Feb 1993) Pteamble para 11. See UN Doc S/RES/827 (25 May 1993) Preamble para 3. See for example, the statement of the United States representative Madeline Albright, Provisional Verbatim Record, UN Doc S/PV.3217 (25 May 1993); and also the statements of Sir David Hannay (United Kingdom), Mr Barbosa (Cape Verde), Mr Sardenberg (Brazil). See also Provisional Verbatim Record, UN Doc S/PV.3175 (22 Feb 1993) statements by Mr de Arujo Castro (Brazil), Mr Merimee (France), Mr Richardson (United Kingdom), Mr Vorontsov (Russian Federation), and Mr Arria (Venezuela), and Mr Olhaye (Djibouti). See the further discussion of the ICTY infra Chapter 6. See for example, UN Doc A/RES/48/143 (20 Dec 1993); and A/RES/49/205 (23 Dec 1994).


151

appointed a Special Rapporteur on the Situation of Human Rights in the Territory of the Former Yugoslavian^ In January 1993, the Special Rapporteur dispatched an international team of medical experts to investigate rape.9-7 The Special Rapporteur subsequently reported that rape had been used as an instrument of ethnic cleansing in Bosnia-Herzegovina and Croatia, and that apparently no effort had been made to prevent the rapes by those in authority.^8 Further references to rape were made in subsequent reports.99 At first glance, this unprecedented reaction to sexual violence against women in the former Yugoslavia appears to signal a decisive change in the attitude of the UN, particularly by the Security Council, in the recognition of crimes committed against women during armed conflict. On several occasions, the Security Council expressed grave concern over the treatment of women in the former Yugoslavia, and fact-finding teams were sent in with specific instructions to investigate sexual violence. Moreover, concern for the situation of women was expressed during the Security Council discussions regarding the establishment of the ICTY. However, an examination of the response by the UN to the widespread sexual violence that occurred during the conflict in Rwanda, approximately two years later, tells a vastly different story, and calls into question the extent to which there has been a permanent change of attitude in the U N system to violence against women in armed conflict. (ii) Rwanda Following the 1994 conflict in Rwanda various NGOs reported that sexual violence against women had occurred on a massive scale. 100 Human Rights Watch concluded that virtually every post-pubescent female survivor of militia violence in Rwanda, was subsequently raped. Estimates range from between 250,000 to 500,000 cases of rape. 101 Many women were forced into sexual slavery, either individually or collectively.102 There is evidence that abducted women were

See UN Doc 1992/S-l/l (1992). See Report of the Secretary-General on Rape and Abuse of Women in the Territory of the Former Yugoslavia, UN Doc E/CN.4/1994/5 (30 June 1993) 4-5 (describing this initiative by the Special Rapporteur on the Situation of Human Rights in the Territory of the former Yugoslavia). 98 See Report on the Situation of Human Rights in the Territory of the former Yugoslavia, UN Doc E/CN.4/1993/50 (10 Feb 1993) at paras 60-62. 99 See Fifth Periodic Report on the Situation of Human Rights in the Territory of the Former Yugoslavia, UN Doc E/CN.4/1994/47 (1994); and Sixth Periodic Report on the Situation of Human Rights in the Territory of the Former Yugoslavia, UN Doc E/CN.4/1994/110 (1994). 100 See for example, African Rights, Rwanda: Death, Despair and Defiance (rev ed, 1995); Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath (1996); and Lawyers Without Borders, Violations of Women's Rights in Rwanda (25 Aug 1996). 101 See Human Rights Watch, ibid, at 24. 102 Ibid, at 52, 56.

96 97

152


taken as "wives" by their captors,103 and in some cases were bought and sold among the "interahamwe".10^ Gender-based Hutu propaganda was used to incite violence against Tutsi women during the conflict in Rwanda. Tutsi women were portrayed as "calculated seductress-spies" who were deliberately used by the Tutsi's to infiltrate the Hutu ranks. 105 Tutsi women were also targeted because of gender stereotypes portraying them as inaccessible to Hutu men, whom they allegedly regarded as inferior.10'' The purpose of rape was "to shatter these images by humiliating, degrading, and ultimately destroying the Tutsi woman." 107 There was also a clear perception that women were "property", and "spoils" of war. 108 N G O reports included information about the use of rape to terrorise the Tutsi community generally. 1 ^ Some NGOs also expressed the view that rape was used to destroy the fabric of the community, and was genocidal in nature. 110 However, in contrast to the reports regarding rape in the former Yugoslavia, there was no widespread media-generated perception as to the establishment of rape camps, or that specific instructions were given to military personnel to rape women. 111 Despite the shocking treatment of women during the conflict in Rwanda, the Security Council made no reference to sexual violence against women during its discussion of the conflict. 112 Nor was sexual violence a focus of the investigations into the conflict initiated by the Security Council. In July 1994 the Security Council requested the Secretary-General to establish an impartial Commission of Experts (Rwanda Commission) to investigate violations of IHL in Rwanda.1 ^ The Preliminary Report of the Commission focused on whether genocide had actually taken place in Rwanda, and whether those individuals responsible should be prosecuted before an international criminal court. ^ ^ Sexual violence is not referred to in this Report.

103 104 105 106 107 108 109 110 111 112

See African Rights, supra note 100, at 778. Ibid, at 769. "Interahamwe" is the term used for collective militia in Rwanda. See Human Rights Watch, supra note 100, at 16-18. Ibid, at 18. Ibid. See African Rights, supra note 100, at 750. Ibid, at 74$. Ibid, at 749; and see Human Rights Watch, supra note 100, at 35. See African Rights, ibid, at 750. On several occasions, the Security Council did make specific reference to the deaths of innocent civilians including women. See for example, UN DocS/RES/912 (1994); and S/RES/918 (1994). However, no reference was made to acts of sexual violence against women. 113 See UN Doc S/RES/935/1994 (1 July 1994). 114 Preliminary Report of the Independent Commission of Experts established in accordance with Security Council Resolution 935 (1994), UN Doc S/1994/1125 (4 Oct 1994).


153

The Final Report of the Rwanda Commission, however, does refer to sexual violence, although in limited terms. 1J5 The Report notes allegations compiled by NGOs, particularly African Rights, regarding the rape and abduction of women and girls. The Rwanda Commission designates rape as an "egregious" breach of IHL, and a crime against humanity, and there is some discussion of the legal norms prohibiting rape in the Final Report.11^ In addition, in 1994, the Human Rights Commission appointed a Special Rapporteur for Rwanda. ^ Some of the later reports of the Special Rapporteur, recognise the particular vulnerability of women during the conflict in Rwanda, and make specific reference to sexual violence. In January 1996, the Special Rapporteur reported that "[r]ape was systematic and was used as a 'weapon' by the perpetrators of the massacres ..." and that "[according to consistent and reliable testimony, a great many women were raped; rape was the rule and its absence was the exception."118. Overall, the incidence of sexual violence during the conflict in Rwanda was only belatedly recognised by the Special Rapporteur and the Rwanda Commission, and it appears no primary investigations regarding sexual violence were carried out. Instead, information provided from other sources, primarily NGOs such as Human Rights Watch, was relied on. The same pattern of silence in relation to sexual violence is evident in the context of the establishment of the ICTR. The Security Council decided that the flagrant violations of IHL committed during the conflict in Rwanda constituted a threat to international peace and security. The Council further determined that the prosecution of offenders before an international tribunal would contribute to the restoration and maintenance of international peace and security.11'5

115 Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), UN Doc. S/1994/1405 (9 Dec 1994). 116 Ibid, at paras 137-145. 117 Rene Degni-Segui was appointed Special Rapporteur pursuant to resolution E/CN.4/S-3/1 (25 May 1994). His reports include: Special Rapporteur of the Commission on Human Rights, Report on the Situation of Human Rights in Rwanda, UN Doc E/CN.4/1995/7 (28 June 1994); Special Rapporteur of the Commission on Human Rights, Report on the Situation of Human Rights in Rwanda, UN Doc E/CN.4/1995/12 (12 Aug 1994); Special Rapporteur of the Commission on Human Rights, Report on the Situation of Human Rights in Rwanda, UN Doc E/CN.4/1995/70 (11 Nov 1994); Special Rapporteur of the Commission on Human Rights, Report on the Situation of Human Rights in Rwanda, UN Doc E/CN.4/1996/7 (1996); Special Rapporteur of the Commission on Human Rights, Report on the Situation of Human Rights in Rwanda, UN Doc E/CN.4/1996/68 (29 Jan 1996) [hereinafter Degni-Segui ]an 1996 Report]; Special Rapporteur of the Commission on Human Rights, Report on the Situation ofHuman Rights in Rwanda, UN Doc E/CN.4/1997/61 (20 Jan 1997) [hereinafter Degni-Segui Jan 1997 Report]. 118 Degni-Segui Jan 96 Report, ibid, at para 16. The number of rape victims was estimated at between 250,000 and 500,000, see Degni-Segui Jan 96 Report, ibid; Degni-Segui Jan 97 Report, ibid, para 29. 119 UN Doc S/RES/955 (8 Nov 1994).

154


Whereas in the resolutions establishing the ICTY sexual violence against Muslim women was specifically mentioned, there was no reference to sexual violence against women in Rwanda in the resolution creating the ICTR. The decision of the Security Council to establish the ICTR was primarily based upon the Preliminary Report of the Rwanda Commission, 120 which made no reference to sexual violence. Nor was sexual violence mentioned during the Security Council debates on the issue. Furthermore, the ICTR has been extremely slow to address crimes committed against women in Rwanda. 121 The response of the UN to the treatment of women in the former Yugoslavia and Rwanda was inconsistent. There are a number of possible explanations for this phenomenon and these may indicate whether there has been a fundamental change in the attitude of the UN towards crimes of sexual violence during armed conflict. Focus on killings One explanation for the failure of the UN to respond to sexual violence in Rwanda is that the magnitude of the killings in that conflict over-shadowed all other abuses. 122 Investigative teams clearly gave priority to determining who was responsible for these activities. However, horror at the slaughter that took place in Rwanda does not justify the failure to investigate other atrocities. Women constitute approximately seventy percent of the surviving population in Rwanda, and approximately fifty percent of house-holds are now headed by women. 12 ^ Addressing crimes of sexual violence committed against women is a crucial aspect of restoring and rehabilitating the community that remains. Moreover, sexual violence was intricately linked with the overall genocidal strategy during the conflict. The primary focus on killings, to the exclusion of other crimes, led to an unsophisticated investigation of this crime. The ICTR has now acknowledged that sexual violence was an integral part of the genocide in Rwanda. 124

120 See L Sunga, "The Commission of Experts on Rwanda and the Creation of the International Criminal Tribunal for Rwanda: A Note", (1995) 16 HRLJ 121 at 123. 121 See the further discussion infra Chapter 6. 122 Human Rights Watch comments that "[t]he main focus has been on the killings and not as many women were killed." Human Rights Watch, supra note 100, at 89. 123 Ibid, at 2. 124 See the further discussion of genocide and the ICTR infra Chapter 6 notes 89 ff and accompanying text.


155

African v European conflict The intersection of race and gender is fundamental to understanding the response of the international community to the conflict in Rwanda. It has been suggested that "the plight of African victims [does] not generate the same outcry as the suffering of Europeans."125 The failure of the international community to prevent the conflict in Rwanda has been explained along these lines. The response may have been inadequate for reasons relating to race, but within the framework of even that inadequate response, the experience of African women has been particularly invisible. It cannot simply be a question of race. This raises the question of how sexual violence against black African women by black African men is perceived by the international community. The fact that rape in the former Yugoslavia was perpetrated by white men against white European women is a relevant consideration in understanding the response to that conflict.12*' There is historical evidence supporting the view that Western legal systems have not treated the rape of black women as seriously as the rape of white women.127 ] n ^ g context of the Security Council, the agenda for action is dominated by the interests of Western powers, particularly the US. Perhaps herein lies part of the explanation for the initial failure to respond to the sexual violence perpetrated against black women in Rwanda. Cultural differences It has been argued that Rwandan women are inhibited from coming forward to talk about sexual violence, and that cultural taboos against speaking of rape are particularly strong in the African context. 128 Difficulty investigating sexual violence is not unique to Rwanda or to Africa. The Yugoslav Commission identified several obstacles to the investigation of rape in the former Yugoslavia.12^ Generally speaking, victims are reluctant to report sexual violence. In most societies there is also a great deal of shame associated with rape. In the former

125 See P Akhavan, "The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment", (1996) 90 AJIL 501. See also C Chinkin, "Kosova: A Good or Bad War?", (1999) 93 AJIL 841 at 847 (referring to the selective approach of the UN to military intervention on behalf of the victims of human rights abuses). 126 See R Copelon, "Surfacing Gender: Re-Engraving Crimes against Women in Humanitarian Law", (1994) 5(2) Hast Women's 1/243, at 244-245. 127 For example, in the African-American context, see K Crenshaw, "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics", (1989) The University of Chicago Legal Forum 139 at 157; and A Harris, "Race and Essenrialism in Feminist Legal Theory", (1990) 42 Stan LR 581 at 599. 128 See Human Right's Watch, supra note 100, at 95. 129 Annex IX, supra note 80, pt IA.

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Yugoslavia this was a particularly significant factor as great importance is placed upon the virginity and chastity of Muslim women. Victims of sexual violence are ostracised in these communities.13° There was, furthermore, a fear of reprisals in the context of an on-going conflict situation, where victims and perpetrators live in close proximity. The passage of time since the commission of the crimes, together with the migration of many survivors, exacerbated the difficulties in collecting evidence. Finally, victims often expressed a fear that reporting of sexual violence would be useless, and indicated general scepticism about the ability or commitment of the international community to improving their situation. Similar problems were identified by NGOs investigating sexual violence in Rwanda. 131 Nevertheless, the Yugoslav Commission concluded that, despite the associated difficulties, most of those interviewed expressed a willingness to consider testifying before the ICTY. 132 In the context of Rwanda, Human Rights Watch reject as "patently false", claims that Rwandan women would not talk about their ordeals. 133 In their view, women were willing to talk, provided that steps were taken to ensure the comfort of the women concerned, such as the use of female investigators and interpreters. 1 ^ As the work of the ICTR has progressed, it has become clear that many Rwandan women are willing to speak out about the crimes committed against them. 1 ^ Furthermore, following her mission to Rwanda in 1997, the Special Rapporteur on Violence against Women has reported that she had "no problem eliciting information and testimonies from victims and witnesses" and that "encouraged and supported by women's organisations, women victims of violence seem to believe that speaking is cathartic and may in fact lead to justice." 1 ^ It is a lack of commitment on the part of the UN to deal sensitively with the issue, rather than any "cultural" difference, that explains the failure to effectively address the issue of sexual violence in Rwanda. Ultimately it is for each

130 See for example, Helsinki Watch, War Crimes in Bosnia-Herzegovina (1993) 171-172 (describing the experience of young Muslim women in the former Yugoslavia). 131 See Human Rights Watch, supra note 100, at 24. 132 Set Annex IX.A, Sexual Assault Investigation, UN Doc S/1994.674/Add.2 vol V (28 Dec 1994) pt IA. 133 See Human Rights Watch, supra note 100, at 25 (recounting these arguments). 134 Ibid, at 25-26. See also D Orentlicher, No Justice, No Peace: Accountability for Rape and GenderBased Violence in the Former Yugoslavia (1993) 30 (emphasising the critical importance of the sex of the interviewer). 135 See for example, the case of Witness JJ, infra Chapter 6, notes 235-238 and accompanying text. 136 Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, Ms Radhika Coomaraswamy of the Mission to Rwanda on the Issues of Violence against Women in Situations of Armed Conflict, UN Doc. E/CN.4/1998/54/Add.l (4 Feb 1998) [hereinafter Coomaraswamy Rwanda Report] pt IIIA.


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individual woman to decide whether she wishes to talk about her experience, and to seek legal redress. 137 However, she must be afforded a genuine choice. The role of lobbying forces The influence of key individuals has been a significant factor in determining the response of institutions created by the Security Council to address issues arising from armed conflict. For example, it appears that the Chairman of the Yugoslav Commission, M Cherif Bassiouni,^ was moved by the plight of young rape victims and was challenged by the prospect of clarifying some of the legal questions surrounding sexual violence in armed conflict. ^ 9 Funds originally destined for other investigations in the former Yugoslavia were diverted towards an investigation into sexual violence in that conflict, under the leadership of Bassiouni. ^ Even so, the "rape inquiry" of the Yugoslav Commission encountered significant hurdles, including crippling funding delays and disagreement amongst Commission members as to the conduct of the investigations.1^1 NGOs and other lobbying forces played a critical role in highlighting the issue of sexual violence in the former Yugoslavia.1^2 The war in Bosnia was preceded by two decades of work by feminists to have rape acknowledged as a serious crime. ^ 3 Individual women, and women's groups in the former Yugoslavia, were particularly effective at ensuring that information about what was happening to women during the conflict reached the international community. 1 ^

137 See also C Chinkin, "Rape and Sexual Abuse of Women in International Law", (1994) 5 EJIL 326 at 337. 138 Following the resignation of Fritz Kalshoven, M Cherif Bassiouni served as Chairman of the Yugoslav Commission from 19 October 1993- See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992)x UN Doc S/1994/674 (27 May 1994) para 7. 139 See Guest, supra note 82, at 86. 140 Ibid. See also The Prosecutor v Karadzic and Another, Rule 61 Proceedings, Case No IT-95-18, Transcript Tuesday 2nd July 1996 (comments of witness Christine Cleiren confirming that "responsibility for the sexual assault investigation was with the Chairman, Professor Bassiouni (sic) ...") 141 See generally Guest, supra note 82, at 85-89. 142 See for example the discussion supra notes 65-68 and accompanying text, and infra Chapter 6 notes 262-264 and accompanying text. 143 See Enloe, supra note 65, at 222. 144 Groups assisting women in the former Yugoslavia include: Center for Women Victims of War (Zagreb); Kareta (Zagreb); The Organization of Women of Bosnia-Herzegovina (Zagreb); Tresnjevka: (Zagreb); SOS (Belgrade); Center for Anti-War Action (Belgrade); and Humanitarian Law Fund (Belgrade). See also Enloe, ibid, at 222 (writing that women's groups in the former Yugoslavia had personal contacts with editors of various feminist magazines, who reported news of the rapes in a gender sensitive manner).

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Undoubtedly, the response of the UN to sexual violence in the former Yugoslavia was influenced by many of these factors. However, some two years later, women's groups in Rwanda were unable to exert the same influence over the international community, and pressure for redress was slower to build. 145 I n the years following that conflict, there have been increased efforts by the international N G O community to assist women who have suffered sexual violence. 1 ^ In 1995, at the Fourth World Conference on Women in Beijing, an N G O women's human rights tribunal, similar to the one held at the Vienna Conference, was organised. 147 Amongst those testifying were women who had survived sexual violence during the conflict in Rwanda. 148 The Perceived Role of Sexual Violence in the Former Yugoslavia and Rwanda Initially, sexual violence in Rwanda was perceived to reflect more closely the traditional pattern of sexual violence during armed conflict. Although African Rights and Human Rights Watch both argued from the outset that there were genocidal aspects to the sexual violence in the Rwandan conflict, there was no widespread media-generated perception that a systematic policy of sexual violence had been employed. In contrast to the case of the former Yugoslavia, there were no reports of detention camps created specifically for sexual violence, nor of sexual violence being committed pursuant to orders. Some writers have argued that sexual violence during armed conflict has traditionally been considered a private matter, and that for this reason it has been ignored by the international community. 1 ^ The intimate connection of the sexual violence in the former Yugoslavia with the war effort, however, gave it a

145 Groups offering assistance to Women in Rwanda include: Association for Widows of the April genocide (AVEGA); Pro-femmes Twese Hamwe; Association Hagaruka; Association rwandaise des femmes des medias; and Asoferwa. 146 For example, the NGO Coalition for Women's Human Rights in Conflict Situations, coordinated by the International Centre for Human Rights and Democtatic Development in Montreal, has various programmes aimed at promoting justice for women who were subjected to sexual violence during the 1994 conflict in Rwanda, including the appointment of a gender monitor in Rwanda. Furthermore, various amicus curiae briefs have been submitted by women's rights advocates to the ICTY and the ICTR. See the discussion of the role played by women's NGOs in the context of the ICTR and the ICTY infra Chapter 6 notes 262 ff and accompanying text. 147 See the discussion of the Vienna Conference supra note 66 and accompanying text. 148 N Reilly ed, Without Reservation: The Beijing Tribunal on Accountability for Women's Human Rights (1996) 9. 149 See for example, A Levy, "International Prosecution of Rape in Warfare: Nondiscriminatory Recognition of Enforcement", (1994) 4(2) UCLA Women's Z/255 at 261-262; and M Bassiouni & P Manakus, The Law of the International Criminal Tribunal for the Former Yugoslavia (1996) 557-558, note 154.


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political dimension, thus removing it from the private realm. The international community perceived the sexual violence as an integral part of the hostilities, and no longer as something peripheral to the main event that inevitably happened to women during armed conflict.^0 Moreover, sexual violence became more than a crime against the honour of the individual woman. It became a crime against the entire Muslim community. This sentiment is reflected in the statements of UN bodies involved in the investigation of the sexual violence in that conflict. There was a preoccupation with systematic sexual violence carried out in conjunction with policies of ethnic cleansing, and a comparative lack of concern about sexual violence in other contexts.1^1 The existence of detention camps in which sexual violence was perpetrated, and the relationship between these camps, are continuously emphasised in the reports. Thus, it appears that sexual violence in the former Yugoslavia was taken seriously, not because of its impact upon women as human beings, but rather because of the effect it had upon the targeted ethnic community. In the case of Rwanda, there was no widespread perception that a deliberate policy of systematic sexual violence had been employed. In these circumstances sexual violence, at least initially, was perceived to be incidental to the fighting, despite its massive scale and brutal nature. Subsequent Developments

Subsequent developments confirm the suspicion that the response of the Security Council to sexual violence in the former Yugoslavia was dictated by the specific circumstances of the perceived use of rape in that conflict. Widespread sexual violence continues to characterise armed conflicts.1^ T n e issue, however, has not subsequently attracted the attention of the Security Council. Furthermore, the response of the international community to violations of IHL in Kosovo during 1999 indicates that the focus of attention in the context of sexual violence remains confined to situations where systematic rape is perceived to be a method of warfare, particularly in cases involving the establishment of rape camps. As NATO intensified its involvement in the Kosovo

150 On historical perceptions of wartime rape, see Brownmiller, supra note 28, at 31-113; Chinkin, supra note 137, at 326-328; and T Meron, "Rape as a Crime Under International Humanitarian Law", (1993)87 4/71424. 151 For example, it was reported in the Human Rights Commission that "[djuring 1996, the Special Rapporteur received some allegations of rape incidents, although it would appear prima facie that those cases do not fall within the context of systematic and concerted practices." Report of the Secretary-General on Rape and Abuse of Women in the Areas of Armed Conflict in the former Yugoslavia, UN Doc A/51/557 (25 Oct 1996) para 8. 152 See for example, the sources cited regarding sexual violence in East Timor, supra Chapter 2 note 73.

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conflict, reports of rape camps became prevalent. The Pentagon issued a statement that it believed that young Kosovar women had been herded into Serb army training camps, and raped by troops. These abuses were described as "a very eerie and disturbing echo of documented instances of rape and killing of women in Bosnia during the Bosnian war." 1 ^ The manner in which these reports were circulated, and the absence of credible information to support such allegations, suggests that behind the facade of concern was the ulterior motive of garnering international support for the intervention by NATO in Kosovo. Undoubtedly, rape was widespread and systematic during the Kosovo conflict. For example, Human Rights Watch documented the terrorisation of the civilian population through a pattern of gang rapes by Serbian and Yugoslav forces.154 However, Human Rights Watch specifically deny any evidence of rape camps, and criticised the US and UK governments for spreading unconfirmed reports of such practices. ^55 e.

The U N Special Rapporteurs on Thematic Issues Related to Sexual Violence during Armed Conflict

Two thematic rapporteurs have been appointed with mandates directly concerning the issue of sexual violence during armed conflict. *56 One of these, the Special Rapporteur on the Question of Systematic Rape and Sexual Slavery and Slavery-like Practices During Wartime, submitted a preliminary report in July 1996, 157 and a final report in 1998. 158 The mandate of the Special Rapporteur

153 V Loeb & R Smith, "U.S. Reports Detail Atrocities in Kosovo", (18 April 1999) Guardian Weekly (reporting comments by US Defense Department spokesman Kenneth Bacon). See also D Storey, "Kosovo Women Raped at Army Camp-US Report", (9 Apr 1999) Reuters (commenting that reports of atrocities from Kosovo "inflamed Western public opinion, increasing support for NATO's air campaign."). 154 Human Rights Watch, Kosovo: Rape as a Weapon of "Ethnic Cleansing" (2000). See also the further sources cited regarding the prevalence of rape in Kosovo supra Chapter 2 note 81. 155 See for example, "Serb Officers Backed Kosovo Gang Rapes", (21 Mar 2000) BBC News (reporting criticisms made by Human Rights Watch about the use of unconfirmed reports of rape camps by NATO leaders). 156 Some country rapporteurs have also considered sexual violence during armed conflict within the course of their studies. See for example, the reports of the Special Rapporteur for the Former Yugoslavia, supra notes 98 and 99; and the Reports of the Special Rapporteur for Rwanda, supra notes 117. 157 Preliminary Report, UN Doc E/CN.4/Sub.2/1996/26 (16 July 1996). 158 Gay McDougall, Final Report, UN Doc E/CN.4/Sub.2/1998/13 (22 June 1998) [hereinafter McDougdl 1998 Final Report].


161

has been extended to enable the submission of an additional report to the Commission.159 The primary motivation for the appointment of the Special Rapporteur to examine this topic was to increase the recognition of crimes committed against the "comfort women".160 The Special Rapporteur identified three main purposes of the mandate. First, to "reiterate the call for a response to the use of sexual violence and sexual slavery during armed conflict." Secondly, "to emphasise the true nature and extent of the harms suffered by women who are raped, sexually abused and enslaved by parties to an armed conflict." Finally, to "examine prosecutorial strategies for penalising and preventing international crimes committed against women during armed conflict."161 The Final Report of the Special Rapporteur examines, from a feminist perspective, the legal framework for prosecuting sexual slavery and sexual violence under international law. In another welcome development, the Final Report also focuses significant attention on the issue of redress (including compensation), for women who have been subjected to systematic sexual violence, and finds that "[u]nder customary international law, the Government of Japan must provide redress for the atrocities perpetrated against the "comfort women"".162 Such redress should include payment directly to individual women, or to their governments, who should ensure its distribution to the women concerned.163 The Special Rapporteur also recommends that the UN should work towards the prosecution of persons responsible for the crimes committed against the "comfort women".164 In particular, the Special Rapporteur identifies several concrete steps to be taken by the UN High Commissioner for Human Rights, in conjunction with Japanese officials. 165 The Special Rapporteur also recommends that the Government of Japan be required to report to the UN Secretary-General at least twice a year, on progress made towards redress for the "comfort women".166

159 Commission on Human Rights Decision 1999/105, Systematic Rape, Sexual Slavery and Slavery-Like Practices During Armed Conflict, Including Internal Armed Conflict, UN Doc E/CN.4/DEC/ 1999/105 (29 Apr 1999). See also Note by the Secretariat, Systematic rape, sexual slavery and slavery-like practices during armed conflict, including internal armed conflict, UN Doc E/CN.4/Sub.2/ 1999/16 (17 June 1999) (indicating that the additional report will be available at the 52nd session of the Sub Commission). 160 McDougall 1998 Final Report, supra note 158, at para 6. 161 Ibid, at paras 9-11. 162 Ibid, Appendix para 31. 163 Ibid. 164 Ibid, Appendix para 63. 165 Ibid. 166 Ibid, Appendix para 67.

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The second thematic mandate relevant to the issue of women and armed conflict, is that of violence against women. In 1994, the Commission on Human Rights appointed a Special Rapporteur on Violence against Women, its Causes and Consequences, for an initial period of three years. 167 From the commencement of her work, the Special Rapporteur made it clear that "all violations of the human rights of women in situations of armed conflict, and in particular, murder, systematic rape, sexual slavery and forced pregnancy ..." would be covered by her mandate. 168 Accordingly, the Special Rapporteur has considered the topic of armed conflict as part of her work on violence against women perpetrated or condoned by the State. In her Preliminary Report, the Special Rapporteur focuses on, inter alia, the issue of sexual violence during armed conflict, including the treatment of refugee women. In the latter context, the Special Rapporteur makes a number of recommendations designed to improve the situation of refugee women and girls, including the access of women to medical services, and stresses the importance of the participation of women in the administration of refugee camps. 169 In 1998, the Special Rapporteur compiled a more detailed report, specifically on violence perpetrated or condoned by the State, and with a significant focus on the issue of sexual violence against women during armed conflict; while in custody; and against refugee and internally displaced women. 170 The report discusses the international legal framework regulating sexual violence from a feminist perspective, and contains recommendations for future improvements.

5-

The Beijing Conference on Women and Subsequent Developments: A Broader Approach to the Impact of Armed Conflict on Women

a.

The Beijing Platform for Action 171

In the early 1990s, sexual violence during armed conflict was identified as an integral part of the broader campaign to address the issue of violence against women. While this resulted in the first widespread consideration of the issue

167 Commission on Human Rights Resolution, 1994/45. The mandate of the Special Rapporteur was extended for a further three-year period in 1997, Commission on Human Rights Resolution, 1997/44. 168 Coomaraswamy 1994 Preliminary Report, supra note 61, at para 7. 169 Ibid, atpara310(c), (d). 170 Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, Ms Radhika Coomeraswamy, UN Doc E/CN.4/1998/54 (26 Jan. 1998) [hereinafter Coomaraswamy 1998 Report]. 171 Beijing Declaration, and Beijing Platform for Action, supra note 7.


163

from a feminist perspective, the many other ways that women are affected by armed conflict were overshadowed. However, since the mid-1990s, there have been signs that the focus of international concern has begun to expand to include other consequences of armed conflict for women. At the Beijing Conference, women and armed conflict was identified as one of the twelve critical areas of concern to be addressed by Member States, the international community and civil society.1''2 Paragraph 44 of the Beijing Platform for Action, calls on "[governments, the international community and civil society, including non-governmental organisations and the private sector"... "to take strategic action", inter alia, in relation to the "[t]he effects of armed or other kinds of conflict on women, including those living under foreign occupation".^ Although sexual violence remains a central focus,!74 t n e Beijing Platform for Action places the issue of armed conflict in a broader framework. For the first time, the general vulnerability of women to the adverse effects of armed conflict is formally linked to the discrimination and disadvantage they are subjected to in many areas of life: "[w]hile entire communities suffer the consequences of armed conflict and terrorism, women and girls are particularly affected because of their status in society and their sex." J75 The Platform for Action recognises that nowadays civilian casualties often outnumber military casualties, and that women and children are a significant number of the victims. ^ Attention is then drawn to a number of aspects of armed conflict of particular significance for women, namely: the incidence of gross and systematic violations of human rights that occur against women in armed conflict, and the disregard thereof by IHL and human rights law; the suffering of women living in poverty, particularly rural women, from the effects of indiscriminate means of warfare, such as land mines; !77 the impact of the aftermath of conflict, as women become head of the household, sole parents, and are left to care for injured combatants and elderly relatives; J78 the role of women in preserving the social order amidst conflict;1?? ancJ the importance of the full participation of women in conflict prevention and resolution.180

172 173 174 175 176 177 178 179 180

Ibid. Ibid. Ibid, at para 131. Ibid, at para 135. Ibid, at para 133. Ibid, at para 138. Ibid, at para 133. Ibid, at para 139. Ibid, at paras 133 and 139.

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Having diagnosed the nature of the problem of women and armed conflict, the Beijing Platform for Action proposes a number of "strategic objectives", and the action to be taken by relevant actors to achieve these aims. 182 For example, to "increase the participation of women in conflict resolution and decision making levels and [t]o protect women living in situations of armed and other conflict and under foreign occupation", 183 Governments and the United Nations are, inter alia, called on to "integrate a gender perspective in the resolution of armed or other conflicts and foreign occupation .. ,". 18 ^ To achieve the reduction of the "incidence of human rights abuse in conflict situations", 185 the Platform calls for the upholding and reinforcement of the norms of IHL and human rights law in relation to these offences against women, and the prosecution of all those responsible. The incorporation of gender-sensitivity into training programs for UN peacekeepers and humanitarian aid workers is also advocated.18^ A further strategy of the Beijing Platform for Action to address the impact of armed conflict on women is the promotion of the contribution of women to fostering a culture of peace.18^ One method of achieving this result is "the development and dissemination of research on the physical, psychological, economic and social effects of armed conflicts on women ... with a view to developing policies and programmes to address the consequences of conflicts".188 Finally, the Beijing Platform for Action addresses the situation of refugee and displaced women, the majority of whom nowadays have fled situations of armed conflict. 189 The actions to be taken by relevant actors to address their situation should take account of the discrimination that such women experience in access to essential supplies, shelter, medical care and education. 181

To some extent, these trends have continued in the context of action taken in follow-up to the Beijing Conference, indicating a more widespread appreciation of the effect of armed conflict on women.

181 See ibid, at paras 131-141. 182 The Beijing Platform for Action (ibid) proposes six strategic objectives to address the effects of armed conflict on women. 183 Ibid, Strategic Objective E 1. 184 For an analysis of whar has been done in the context of mainstreaming in the UN human rights field, see A Gallagher, "Ending the Marginalization: Strategies for Incorporating Women into the United Nations Human Rights System", (1997) 19 HRQ283 at 288. 185 Beijing Platform for Action, supra note 7, Strategic Objective E 3186 Ibid, at para 145(e). 187 Ibid, Strategic Objective E 4. 188 Ibid, at para 146(c). 189 Ibid, Strategic Objective E 5.


b.

165

The Commission on the Status of Women

The Commission on the Status of Women (CSW) is responsible for co-ordinating the follow-up to the Beijing Conference.19° J n orcler to assist the CSW in its deliberations the Division for the Advancement of Women, organised expert group meetings on issues relating to women and armed conflict. In particular, the participation of women in political decision-making and conflict resolution, 191 and gender-based persecution, were considered.192 Women and armed conflict was one of the four critical areas of the Beijing Platform for Action considered during the 42n

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