UNDP-MINDEF M‟sia Seminar on Integrating Gender

Perspectives into Peacekeeping Operations

19-20 August 2014

Gender in International

Humanitarian Law and

Peacekeeping Operations

Outline

• ICRC

• International Humanitarian Law (IHL)

• IHL and PKOs

• Gender in IHL

• Mens and Boys

• Conclusion: „needs‟ rather than gender

• The ICRC

The International RC/RC Movement :

The International

Federation of Red

Cross & Red Crescent

Societies (IFRC)

(1919)

National

Societies

The ICRC

(1863)

186 National Societies

(since 1864)

ICRC

Intro

• 1859 – Battle of Solferino

• 1862 – "A Memory of Solferino“

• 1863 – ICRC established

creation of relief societies for the care

of the wounded

international treaty for the protection of the sick and the wounded on the battlefield

ICRC

Intro

The ICRC Mission :

The ICRC is an impartial, neutral and independent

organization whose exclusively humanitarian mission

is to protect the lives and dignity of victims of armed

conflict and internal violence and to provide them

with assistance. It directs and coordinates the

international relief activities conducted by the

Movement in situations of conflict. It also

endeavours to prevent suffering by promoting and

strengthening humanitarian law and universal

humanitarian principles. Established in 1863, the

ICRC is at the origin of the International Red Cross

and Red Crescent Movement.

ICRC

Intro

The ICRC: Mandate by States

Strictly humanitarian mandate

(political, military, criminal

justice) given by the international

community

• Independent, neutral organization

• Mandate stems from Geneva

Conventions 1949

• Based in Geneva, Switzerland, employs

12,000 people, 80 countries

• Finance: voluntary govt donations and

Red Cross and Red Crescent societies

ICRC

Intro

What the ICRC is

not: •The ICRC is not the United Nations

•The ICRC is not an NGO

•The ICRC is not a human rights organisation

•The ICRC is not an advocacy group

•The ICRC is not affiliated with any government

•The ICRC is not a political organisation

•The ICRC does not take sides in a conflict (or judge)

•The ICRC does not have a mandate to prevent or end armed conflict

ICRC

Intro

• ICRC activities worldwide:

what we do

ICRC activities in AC and OSV

Protection (of victims) protecting POWs and other detainees

restoring family links (tracing services)

protecting civilians

Assistance (to victims) food and other material assistance, economic

rehabilitation

water and habitat work

medical care: war surgery, public health, artificial limbs

Preventive action Promoting IHL, capacity-building and mine

awareness

ICRC

Intro

• Immediate assistance in emergency situations

• Constructive dialogue (confidential & bilateral)

• Coordinate movement to ensure safe access

• Useful info on situation of civilian populations

• Monitor compliance with IHL (all parties/groups)

• Neutral intermediary between parties to the conflict:

POW & detainee exchanges

Mortal remains

Humanitarian corridors

Evacuate wounded & civilians

IDP resettlement

The ICRC in Complex

Emergencies

ICRC in Complex Emergencies

• Access to all areas (continuing/ongoing) – including

conflict affected

• Information on the security situation in the field

Mainly for the safety of our teams and the civilians/victims

• Access to detainees

• No armed escorts

• No use of military

(logistic) assets

How we work :

The ICRC acts…

• In close proximity to victims

• In dialogue with all parties, actors & groups

• Complementary to other humanitarian agencies

• Predictably & consistently – in all contexts

• In accordance with the RC/RC principles of

neutrality, independence and impartiality

ICRC

Intro

• International Humanitarian Law

• International humanitarian law is a part of public international law

• Also known as the "law of armed conflict" or the "law of war"

• Established by treaty or custom

• Rules which apply only in armed conflict

What

is IHL? International Humanitarian Law

Wounded and Sick (Land)

Wounded, Sick and Shipwrecked (Sea)

Prisoners of War

Civilian Persons in the Power of the enemy

Geneva Conventions of 1949 Sources

of IHL

Additional Protocols of 1977

International Armed Conflicts

Internal Armed Conflicts

Sources

of IHL

LIMIT the suffering caused by armed conflict

How?

• PROTECTS persons who are not, or no longer,

participating in conflict and certain places and objects;

• RESTRICTS the means and methods of warfare used

by parties to the conflict.

Limits in armed conflict Purpose

of IHL

Geneva Conventions

196 States parties

universal adherence

Additional Protocol I

174 States Parties

Additional Protocol II

167 States Parties

Additional Protocol III

67 States Parties

Sources

of IHL

Summary of formal sources of IHL

1864: Geneva Convention (sick and wounded soldiers)

1868: Declaration of Saint-Petersburg (certain ammunition)

1899/1907: The Hague Conventions (laws & customs of war)

1925: Protocol for the Prohibition of the Use of Asphyxiating Gases

1929: Geneva Convention (prisoners of war)

1949: Four Geneva Conventions

1954: Hague Convention on the Protection of Cultural Property (and Protocol)

1972: Biological Weapons Convention

1977: Two Additional Protocols to the GC

1980: Conventional Weapons Convention (and Protocols)

1993: Chemical Weapons Convention

1997: Ottawa Treaty on Anti-personnel landmines

1998: Statute of the International Criminal Court

1999: Second Protocol to the Hague Convention of 1954

2000: Optional Protocol on the Involvement of Children in Armed Conflict

2008: Convention on Cluster Munitions

2013: Arms Trade Treaty

Sources

of IHL

… does it apply?

International Humanitarian Law (IHL)

and UN Peace Support Operations…

Why am I here

Basic questions

How am I supposed to behave

Charter of the United Nations

measures to restore and maintain peace & security

Why am I here ?

Chapter 6: Peaceful settlement of disputes

peacekeeping operations

Chapter 7: Actions with respect to threats to

peace, breaches of peace and acts of aggression

peace enforcement operations

How am I supposed to behave ?

International human rights law (HRL)

International humanitarian law (IHL/LOAC)

limitation

distinction

proportionality

United Nations Secretary-General’s

Bulletin n°13 - 6 August 1999

Observance by United Nations Forces of

International Humanitarian Law

1. Field of application

• in PKO and in peace

enforcement actions

2. Application of national law • remains binding

3. Status of forces agreement

• obligation to train in IHL

4. Violations of IHL

• subject to prosecution in national courts

Gender in IHL

Does gender figure in IHL?

• Yes: IHL protects all victims of armed

conflict BUT

• No: No specific reference to gender in

GCs or APs

Feminist criticism (1)

• A regime that prioritises men

• Women relegated to victims

• 42 specific provisions on women

• But 48%: as expectant or nursing mothers

• Sexual violence:

Not a „grave breach‟ of the GCs

chastity and modesty of women:

A.27 GC IV: women shall be protected

against attack on their honour

• NIAC hardly any protection for women:

separation fr. men c.f. IAC

Feminist criticism (2)

Feminist criticism (3)

• „gender‟ refers to the two sexes, male and

female, within the context of society. The

term „gender‟ does not indicate any

meaning different from the above.

Criticised as limited

Diplomatic ambiguity

Rome Statute of the ICC: 1998

Answering the critics: honour

• Update outdated language of 1940s thinking

• Honour is a code by which many men and

women are raised

APs do not use „honour‟

„honour‟ not used in ICC Statute

Rape now a war crime, crime against humanity

and genocide: see ICTR and ICTY

Answering the critics: Protect all

• IHL affords specific provisions for the

protection of women, children, the aged

• All POWs entitled in all circumstances to

respect for their person and their honour

• Women protected as combatants under IHL

• No greater condemnation for women

accused of war crimes due to „gendered‟

views of women: A. 88 GCIII

Answering the critics: ICC gender

• „Gender‟: refers to males and females, within

the context of society.

• The defintion acknowledges

the social construction of gender, and

the accompanying roles, behaviours, activities,

and attributes

• assigned to women and men, and to girls

and boys.

‟

ICC Policy Paper on Sexual and Gender Based

Crimes: 2014

Answering the critics: ICC guide

Each of us has a role to play. It is hoped that the

Policy will also serve as a guide to national authorities

in the exercise of their primary jurisdiction to hold

perpetrators accountable for these crimes. United in

our efforts, we can end the silence that has

surrounded sexual and gender-based crimes for far

too long and give victims the ultimate tool in

combatting such crimes: a voice backed by the force

of the law,…”

Fatou Bensouda

Prosecutor of the International Criminal Court

ICC Press Release 5.6.2014

Answering the critics: asking too

much „gender‟ of IHL • Lacks analysis of gender inequalities

• Pragmatic and limited aims

• Does not regulate social structure

• Soft law options:

Standards, Guidelines, Security Council and

General Assembly Resolutions

Give existing IHL norms a gender perspective

Gender in IHL: Sexualisation of

Interrogation

• Abu Ghraib interrogators used gender to

violate and humiliate those held captive

Interrogations involved a systematic assault on

conceptions of appropriately masculine

behaviour…racist and heterosexist

understanding of masculinity…that „gets‟ gender

Dignified treatment of female and male prisoners

of war would preclude gender humiliation e.g.

searching of detained combatants by opposite

sex

Gender in IHL: Protection against

sexual violence • Prohibition contained in the Geneva Conventions and

their Additional Protocols for both IAC and NIAC, POW and civilians. E.g: “(…) The following acts are and shall remain prohibited at

any time and in any place whatsoever, whether committed by civilian or by military agents: (a) (…) (b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault; (…)" (Art. 75(2)b API)

• Rule 93 ICRC Customary IHL Study: "Rape and other forms of sexual violence are prohibited".

• Plus, the related international, regional and national HRL

These prohibitions apply to both women and men!

Gender in IHL: Criminalisation of sexual

violence • Geneva Conventions

Torture, inhuman treatment (cf. Delalic)

• ICTY and ICTR Statute

Rape= crime against humanity (cf. Furundzija,

Kunarac, Akayesu)

Rape as genocide (cf. Akayesu, Musema)

• ICC Statute

Rape, sexual slavery, enforced prostitution,

forced pregnancy, enforced sterilization and any

other forms of sexual violence

Sexual violence can constitute war crime/grave

breaches, crime against humanity or genocide

Making IHL Gender Sensitive

• Accept women as perpetrators of crimes

• Stop gender stereotypes to view, condem,

justify atrocities

• Social pressure on female combatants does

not fade away when the fighting stops:

Considered unclean heroines

Need more support for reintegration than men

Men and boys: Kenyatta case

• Reports of post-election sexual violence

• Charges:

rape

„other forms of sexual violence‟ (evidence of

penile amputation and forced circumcision)

• ICC recharacterised this evidence:

„other inhumane acts‟

Men and boys: invisible

• Reason: evidence …did not establish the

sexual nature of the acts of forced

circumcision and penile amputation visited

upon Luo men‟

• …not every act of violence which targets

parts of the body commonly associated with

sexuality should constitute an act of violence

ICC Pre-Trial Chamber

Men and boys: concerns

• Overlooks broader context of the crimes

• Force and coercive environment makes

these acts a form of sexual violence

• Intent and purpose of the acts have political

and ethnic significance in Kenya

• An expression of political and ethnic

domination by one group over the other and

intended to diminish the cultural identity of

Luo men.

Brigid Inder, Women’s Initiatives

In PKOs: Characteristics of sexual

violence

Taboo nature leading to invisibility - Very limited

prevention

- Very limited

operational

response

Leads to under-reporting

Feeling of unpreparedness among staff about how to address the issue

Complexity of developing an integrated and

coordinated, multidisciplinary response.

Identifying entry points

and key actors

PKOs and sexual and gender based

violence

Objectives of the dialogue

- Safe access

- Armed forces‟ behaviour

- Support

Plan of action in a given context

- Humanitarian problem

- Responsibilities

- Commitment

- Capacity

- Plan

Conclusion

• Gender figures in IHL and PKOs

• Theory into practice

• Not just conceptual, tangible benefits

• Do not forget the men and the boys