Women and the law of armed conflict: Why the silence?

International and Comparative Law Quarterly

Volumn 46, Issue 1, 1997, Pages 55-80

  Gardam, Judith ^a  

^a UNIVERSITY OF ADELAIDE   (Australia)

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EID: 84889986114     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300060115     Document Type: Article

References (97)

1. For a discussion of the situation in relation to human rights in times of armed conflict see Yoram Dinstein, “Human Rights in Armed Conflict: International Humanitarian Law”, in Theodor Meron (Ed.), Human Rights in International Law: Legal and Policy Issues (1984), Vol.2, p.345 and
2. see Theodor Meron, Human Rights in Internal Strife: Their International Protection (1987).
3. See e.g. Charlotte Bunch, “Women's Rights as Human Rights: Towards a Re-Vision of Human Rights” (1990) 12 Hum.Rts.Q. 486; and
4. Hilary Charlesworth, “What Are Women's International Human Rights?”, in Rebecca Cook (Ed.), Human Rights of Women: National and International Perspectives (1994), p.58.
5. See generally Theodor Meron, “Rape as a Crime Under International Humanitarian Law” (1993) 87 AJ.I.L. 424 and
6. Christine Chinkin, “Rape and Sexual Abuse of Women in International Law” (1994) 5 EJ.I.L. 326.
7. See Draft Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflicts Annex E/CN.4/1995/6. The focus of concern in relation to children is the use by States of child combatants. This leads to a convergence between the regimes, as the use of child combatants involves the treatment by a State of its own nationals, the province of human rights law rather than the law of armed conflict. Geraldine Van Bue-ren, “The International Legal Protection of Children in Armed Conflicts” (1994) 431. C.L.Q. 809, 817–818 criticises this selective focus.
8. For a description of these rules see Mala Tabory, “The Status of Women in Humanitarian Law”, in Yoram Dinstein (Ed.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (1989), p.941 and
9. Francoise Krill, “The Protection of Women in International Humanitarian Law” (1985) 249 Int.Rev. Red Cross 337.
10. I am not referring here to the hierarchy in the sense used by many scholars to distinguish between civil and political rights and social and cultural rights. For a discussion of this issue see Theodor Meron, “On a Hierarchy of International Human Rights” (1986) 80 AJ.I.L. 1.
11. (1981) 1249 U.N.T.S. 14.
12. See Belinda Clark. “The Vienna Reservations Regime and the Convention on Discrimination Against Women” (1991) 85 AJ.I.L. 281 and
13. Rebecca Cook, “Reservations to the Convention on the Elimination of all Forms of Discrimination Against Women” (1990) 30 Virginia J.I.L. 643.
14. See Judith G. Gardam, “An Alien's Encounter with the Law of Armed Conflict”, in Ngaire Naffine and Rosemary Owens (Eds). Sexing the Subject of Law (1996), p.233;
15. Catherine Niarchos, “Women, War, and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia” (1995) 17 Hum.Rts.Q. 649, 672–676 and see the further discussion infra n.85 and accompanying text.
16. See e.g. Human Rights Watch, Global Report on Women's Human Rights (1995), pp. 1–99 and 100–139, in relation to sexual assault of refugees and displaced women;
17. Amnesty International, Bosnia-Herzegovina: Rape and Sexual Abuse by Armed Forces (1993)
18. Helsinki Watch, War Crimes in Bosnia-Hercegovina (1993)
19. Americas Watch and Women's Rights Project, Untold Terror: Violence Against Women in Peru's Armed Conflict (1992) and
20. Middle East Watch. A Victory Turned Sour, Human Rights in Kuwait Since Liberation (1991).
21. Equality theory is still the preferred option of liberal theorists as the mode of accommodating the demands of women for change. In the area of international law see Fernando Teson, “Feminism and International Law: A Reply” (1993) 33 Virginia J.I.L. 647.
22. Amnesty International, Report on the Gulf War (1991)
23. Human Rights Watch, Needless Deaths in the Gulf War (1991)
24. Harvard Study Team, Public Health in Iraq After the Gulf War (1991) and
25. Health and Welfare in Iraq After the Gulf Crisis (1991), in particular chap.9, “Women Survey”.
26. For an account of rape in warfare over the centuries see Susan Brownmiller, Against our Will: Men, Women and Rape (1975), pp. 31–113
27. See Maurice Keen, The Laws of War in the Late Middle Ages (1965), pp. 121–122 and
28. Theodor Meron, Henry's Wars and Shakespeare's Laws (1993), pp. 111–112.
29. See Ann Orford, “The Politics of Collective Security” (1996) 17 Mich.J.I.L. 373 and
30. Julianne Peck, “The U.N. and the Laws of War: How can the World's Peacekeepers be held Accountable?” (1995) 21 Syracuse J.I.L. & Com. 283 (detailing allegations of rape by UN soldiers in Bosnia-Herzegovina).
31. See Judith Gail Gardam, Non-Combatant Immunity as a Norm of International Humanitarian Law (1993), pp. 56–58.
32. see also Harvard Study Team. Health and Welfare
33. See generally “Refugee Women”, Refugees (UNHCR, 1995), Vol. 100, detailing the particular burdens that refugee women carry as a result of displacement usually associated with armed conflict;
34. UNICEF, The State of the World's Children (1996)
35. See European Community Investigative Mission, The State of the World's Children (, para.27 and
36. “Refugee Women”, The State of the World's Children (
37. See generally Theodor Meron, “The Protection of the Human Person under Human Rights Law and Humanitarian Law” (1992) 91/1 Bull.Hum.Rts.;
38. Jacques Meurant, “Humanitarian Law and Human Rights Law: Alike Yet Distinct” and
39. Louise Doswald-Beck and Sylvain Vite, “International Humanitarian Law and Human Rights Law” (1993) 293 Int.Rev. Red Cross 89 and 94 respectively.
40. See Chrisaf Jochnik and Roger Normand, “The Legitimation of Violence: A Critical History of the Laws of War (1994) 35 Harv.I.LJ. 49, 58.
41. To illustrate the power of the military in determining what the law will be, one has only to consider their role in the law-making processes. e.g. they have played a significant role in preventing the US to date from ratifying Protocol I. See George Aldrich, “Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions” (1991) 85 A.J.I.L. 1 and
42. Theodor Meron, “The Time has Come for the US to Ratify Geneva Protocol I” (1994) 88 A.J.I.L. 678.
43. Gerald Draper, “The Development of International Humanitarian Law”, in Jean Pictet (Ed.), International Dimensions of Humanitarian Law (1988), p.67.
44. Paul Kennedy and George J. Andreopoulos, “The Laws of War: Some Concluding Reflections”, in Michael Howard, George J. Andreopoulos and Mark R. Schulman (Eds), The Laws of War: Constraints on Warfare in the Western World (1994), p.218.
45. See e.g. Theodor Meron, “On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument” (1983) 77 AJ.I.L. 589 and
46. Laura Lopez, “Uncivil Wars: The Challenge of Applying International Humanitarian Law to Internal Armed Conflicts” (1994) 69 N.Y.U.L.Rev. 916.
47. The Security Council is making a much needed contribution in this context with its approach to the mixed conflict in the former Yugoslavia and the civil conflict in Rwanda: see Theodor Meron. “International Criminalization of Internal Atrocities” (1995) 89 AJ.I.L. 554.
48. See Judith Gardam, “Gender and Non-Combatant Immunity” (1993) 3 Trans. L. & Contemp. Problems 345.
49. See V. Spike Peterson, “Security and Sovereign States: What Is at Stake in Taking Feminism Seriously”, in her (Ed.), Gendered Stales: Feminist (Re)Visions of International Relations Theory (1992), p.31 at pp.49–56 and
50. Judith Stiehm, “The Protected, the Protector, the Defender”, in her (Ed.) Women and Men's Wars (1983), p.367.
51. See generally Karen Engle, “International Human Rights and Feminism: When Discourses Meet” (1992) 13 Mich J.I.L. 517 for a discussion of the various rights-based analyses that characterise feminist international legal scholarship.
52. See e.g. Carol Smart, Feminism and the Power of Law (1989), pp. 138–159;
53. cf. Patricia Williams, “Alchemical Notes: Reconstructed Ideals From Reconstructed Rights” (1987) 22 Harv.C.R.-C.L.L.Rev. 401.
54. Margaret E. Galey, “International Enforcement of Women's Rights” (1984) 6 Hum.Rts.Q. 463.
55. As feminists have demonstrated, the choice to leave the private sphere unregulated is not value free. See e.g. Margaret Thornton, “Feminist Jurisprudence: Illusion or Reality?” (1986) 3 Aust.J.L. & Soc. 5.
56. See e.g. Katherine O'Donovan, Sexual Divisions in Law (1985).
57. See Hilary Charlesworth, Christine Chinkin and Shelley Wright, “Feminist Approaches to International Law” (1991) 85 AJ.I.L. 613, 625–630;
58. Celina Romany, “Women as Aliens: A Feminist Critique of the Public/Private Distinction in International Human Rights Law” (1993) 6 Harv.H.RJ. 87; and
59. Hilary Charlesworth. “Worlds Apart: Public/Private Distinctions in International Law”, in Margaret Thornton (Ed.), Public and Private: Feminist Legal Debates (1995), p.243.
60. See e.g. Charlesworth et al., Public and Private: Feminist Legal Debates (, p.625 and
61. see also Hilary Charlesworth, “Transforming the United Men's Club: Feminist Futures for the United Nations” (1994) 4 Trans. L. & Contemp. Problems 421.
62. But note the criticisms of the public/private dichotomy in Western liberal traditions: see e.g. Janet Sharistanian (Ed.), Beyond the Public/Domestic Dichotomy: Contemporary Perspectives on Women's Public Lives (1987).
63. See also Karen Engle, “After the Collapse of the Public/Private Distinction: Strategizing Women's Rights”, in Dorinda Dallmeyer (Ed.), Reconceiving Reality: Women and International Law (1993), p.143, who queries the success of this approach in international law.
64. See Charlesworth, Reconceiving Reality: Women and International Law
65. See Margareth Etienne, “Addressing Gender-Based Violence in an International Context” (1995) 18 Harv.W.L.J. 139, 157–159.
66. J. Oloka-Onyango and Sylvia Tamale, “'The Personal is Political', or Why Women's Rights are Indeed Human Rights: An African Perspective on International Feminism” (1995) 17 Hum.Rts.Q. 691, 693.
67. See also Chandra Mohanty, “Cartographies of Struggle: Third World Women and the Politics of Feminism”, in Chandra Mohanty, Ann Russo and Lourdes Torres (Eds), Third World Women and the Politics of Feminism (1991), p.l.
68. See Raimundo Pannikar, “Is the Notion of Human Rights a Western Concept?” (1982), 120 Diogenes 75.
69. The difficulties and divisions this search can cause have been highlighted in the area of female genital surgeries. See Isabelle Gunning, “Arrogant Perception. World Travelling and Multicultural Feminism: the Case of Female Genital Surgeries” (1991–1992) 23 Col.H.R.L.Rev. 189 and
70. Karen Engle, “Female Subjects of Public International Law: Human Rights and the Exotic Other Female” (1992) 26 New Eng.L.Rev. 1509.
71. To establish this point one needs only to consider the very low level of acceptance of the treaty rules of armed conflict by Asian countries: see Christophe Swinarski, “Regional Perspectives on International Humanitarian Law”, in William Malley (Ed.). Shelters From the Storm: Developments in International Humanitarian Law (1995), p. 323 and
72. See Geoffrey Best. War and Law Since 1945 (1994), p.17.
73. See Matthew Ferretti “The Iran-Iraq War: United Nations Resolution of Armed Conflict” (1990) 35 Villanova L.Rev. 197.197.218–219.225.239–240.
74. See Sylvie-Stoyanka Junod. Protection of the Victims of Armed Conflict Falkland-Malvinas Islands (1982) (ICRC. 1984).
75. For an analysis of the legal issues raised by the Gulf conflict, see Peter Rowe (Ed.), The Gulf War 1990–91 in International and English Law (1993).
76. See United States: Department of Defense Report to Congress on the conduct of the Persian Gulf War$ Appendix on the Role of the Law of War. repr. in (1992) 31 I.L.M. 612.
77. The regulation of weaponry in some contexts, however, is of even greater significance to civilians than combatants. An example is land mines. See Human Rights Watch, Landmines: A Deadly Legacy (1993).
78. See Christine Chinkin, “A Gendered Perspective to the International Use of Force” (1992) 12 Aust.Y.I.L. 279
79. For a discussion of the principle of proportionality in both the law on the use of force and the law of armed conflict, see Judith G. Gardam, “Proportionality and Force in International Law” (1993) 87 AJ.I.L. 391.
80. See Michael J. Matheson, “Customary Law and Additional Protocol I to the Geneva Conventions for Protection of War Victims: Future Directions in Light of the U.S. Decision not to Ratify” (1987) 81 Proc.Am.Soc.I.L. 26.
81. For an analysis of the attitude of the US and its coalition allies to the legal position in relation to indiscriminate attacks see Christopher Greenwood, “Customary International Law and the First Geneva Protocol of 1977 in the Gulf Conflict”
82. See e.g. Oscar Schachter. “United Nations Law in the Gulf Conflict” (1991) 85 AJ.I.L. 452, 465;
83. Burns H. Weston, “Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy” (1991) 85 AJ.I.L. 516, 529 and
84. Judith Gail Gardam, “Noncombatant Immunity and the Gulf Conflict” (1992) 32 Virginia J.I.L. 813. Most of the criticism in the area of the law of armed conflict, however, has been directed at Iraq's conduct
85. They, moreover, have a long and complex history: see generally Allan Rosas, The Legal Status of Prisoners of War. A Study in International Humanitarian Law Applicable in Armed Conflicts (1976).
86. I use the term sexual violence to cover a variety of abuses of women that occur in armed conflict, rape being just one of them. The conflict in the former Yugoslavia demonstrates the differing degrees and forms that sexual violence against women can take in armed conflict and the problems that this complexity poses to attempts to reform the law. See generally Jennifer Green, Rhonda Copelon, Patrick Cotter and Beth Stephens, “Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique” (1994) 5 Hastings Women's LJ. 171.
87. See e.g. Ustinia Dolgopol and Snehal Paranjape. Comfort Women, an Unfinished Ordeal (1994) pp. 15–19.
88. Although the Commission created by the victors after the First World War to enquire into breaches of the laws of war by Germany and its allies (The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (1919)) designated rape as a war crime that should lead to criminal responsibility, no prosecutions for rape resulted from the Commission's work: see Leon Friedman (Ed.), The Law of War: A Documentary History, Vol.1 (1972), pp.776–777.
89. Rape was specifically prohibited by Arts.XLIV and XLVII of the Lieber Code, General Orders No.100, 24 Apr. 1863 (repr. in Friedman, idem, p.167): Art.XXXVIII of the Declaration of Brussels Concerning the Laws and Customs of War 1874 (repr. in idem) referred to the need to respect the “honour and rights of the family”: the Oxford Manual (repr. in Dietrich Schindler and Jiri Toman (Eds), The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents (1973) p.35) required respect for “family honour” in Art.49 and Art.XLVI of the Hague Regulations Respecting the Laws and Customs of War on Land, annexed to the Hague Conventions with respect to the Laws and Customs of War on Land of 1899 and 1907, provided for family honour to be respected.
90. The definition of “Protected Persons” in Art.4 does not cover a party's own nationals or nationals of a neutral State and co-belligerent State who are in the territory of a belligerent State. For a comprehensive description of the exceptions to protected status under the Fourth Convention see Michael Bothe et al. (Eds), New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (1982), pp.442 et seq.
91. See Yougindra Khushalani, Dignity and Honour of Women as Basic and Fundamental Human Rights (1982), pp.71–73
92. Jean S. Pictet (Ed.), Commentary on the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958), p. 204.
93. However, the fact that the list of grave breaches in the conventional rules is exhaustive does not prevent other offences being subject to universal jurisdiction at customary international law: see Yves Sandoz et al. (Eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), p. 976 n.ll.
94. ICRC, Update on Aide-Mémoire of 3 Dec. 1992.
95. (1995) 89 AJ.I.L. 840, 842.
96. Koskenniemi, AJ.I.L., p.228.
97. see Judith G. Gardam, “Legal Restraints on Security Council Military Enforcement Action” (1996) 17 MichJ.I.L. 285, 312–320.