The international legal framework, conflict and

gender

Cecilia Tengroth, Legal Advisor

Swedish Red Cross

cecilia.tengroth@redcross.se

www.redcross.se/krigetslagar

What is international law (IL)?Who creates it?

Why do states follow it?What is the difference between conventions, resolutions, UN-

mandates and customary law?How does IL relate to gender?

How gender impacts armed conflict.The laws of war

International Law

Private Int. Law

T he La w s of W a r The Laws of peace The Law of C onflic t prevention

L aw s o f N eu tra lity

Th e L aw s o f O cku p ation

Hagueconventions

G enévaconventions

1980-iesW eapon conventions

Int. Hum anitarian Law

Public Int. Law (Fo lk rätt)

International law N ation a l law

Human rights

Law of the seaDiplomatic lawSpace lawTreaty lawInt. trade lawetc.

UN CharterDisarmamentDemilitarizationNeutralisation

Customary law Treaty based law

• Based on state practice and opinio juris

• Unwritten rules and principles

• Binding for all

• Based on binding legal documents

• Codified and written

• Binding for the parties

Sources of IL

Why do states follow the law? • State own interest and needs

• The desire for reciprocal treatment

• The risk of reciprocal treatment

• Political risk

• Economical risk

• Risk of sanctions

• Psychological barrier

• International and national courts

• International monitoring/reporting mechanisms

• International renommé

THE UN-SYSTEM

The UN has 4 main purposes

I.To keep peace throughout the world;

II.To develop friendly relations among nations;

III.To help nations work together to improve the lives of poor people, to conquer hunger, disease and illiteracy, and to encourage respect for each other’s rights and freedoms;

IV.To be a centre for harmonizing the actions of nations to achieve these goals.

HOW THE UN WORKS

• The Charter established six principal organs of the United Nations: the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice, and the Secretariat.

• The United Nations family is much larger, encompassing 15 agencies and several programmes and bodies.

• The UN (the security council) can legally bind states to act in a certain way, or prohibit behavior!

UN CHARTER

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED•to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and•to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and•to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and•to promote social progress and better standards of life in larger freedom,

Basic principles of the UN-Charter

Art 1: the purpose to maintain international peace and security

Art 2 (1): the member states sovereign equality

Art 2(3): the obligation of peaceful settlements of disputes

Art. 2(4)

All members shall in their international relations refrain from the use of force or the threat thereof against another states territorial integrity, political independence, or in any other manner inconsistent with the purposes of the UN.

Art. 51

Nothing in this Charter shall impair the inherent right of individual or collective self defence if an armed attack occurs against any member of the UN.

UN CHARTER

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED•to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and•to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and•to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and•to promote social progress and better standards of life in larger freedom,

Human rights background1945 UN CHARTER, preamble

art 1:3 UN purposesart 55 promotionart 56 co-operation, duty of statesart 68 ECOSOC UN COM HR

1946 Nürnberg war crimes trialcrimes against humanity

1948 Universal Declaration of Human Rights

1966 UN Convention on Civil & Political Rights (CCPR)

1966 UN Convention on Economic, Social & Cultural Rights (CESCR)

1979 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),

Gender and the UN• The United Nations Charter reaffirmes fundamental human rights and the equal rights of men

and women.• Despite this strong commitment, the understanding of the impact of armed conflict on women

and girls and the role of women in conflict resolution and peacebuilding developed slowly within the United Nations.

• From the 60ies focus has progressed: • need of special protection to women and children during armed conflict and emergency situations. • The linkages between gender equality, development and peace (Mexico 1975; Copenhagen 1980; Nairobi 1985;

and Beijing 1995).• the impact of war on women and girls and their role in peace building.

• Resolution 1325 from 2000, was the culmination of several decades of growing realization of the diverse roles that women play both in conflict resolution and building peace and the result of active involvement and advocacy by women's organizations.

•

The power of UN resolutions

• UN General Assembly Resolutions

• UN Security Council– Ch VI= peaceful settlements of disputes– Ch VII= forceful actions

UN Charter Chapter VIPeaceful settlements of disputes

• Art 33 (1)if ”international peace and security is in danger, the parties shall try to seek a settlement to their dispute through negotiations, inquiry commissions,”

• No forceful / compulsorily actions

• ”Peace keeping” basic principles: Troops are deployed with the consent of the parties; their impartiality is crucial to maintaining the consent and cooperation of the main parties; and the use of force is limited to actions in self defence (and defence of the mandate).

• The tasks usually entails montitoring and reporting.

UN Charter Chapter VIIACTION WITH RESPECT TO THREATS TO THE PEACE,

BREACHES OF THE PEACE, AND ACTS OF AGGRESSION

Art. 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

”

Art 41.

The Security Council may decide what measures not

involving the use of armed force are to be employed to

give effect to its decisions, and it may call upon the

Members of the United Nations to apply such measures.

These may include complete or partial interruption of

economic relations and of rail, sea, air, postal, telegraphic,

radio, and other means of communication, and the

severance of diplomatic relations.

Art. 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may

include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”

Conflict and gender• Armed conflict impacts women, girls, men and boys in very

different ways, and is coped with in different ways.

• They have distinct and diverse status, needs and capacities.

Gender based violence and humanitarian emergencies

• Whether during times of armed conflict or in the aftermath of disasters, the prevalence of gender based violence (including sexual violence) is a critical humanitarian issue that requires attention and action.

• There is a need to better prevent and respond to gender-based violence (GBV) from the start of humanitarian emergencies, including ensuring that every humanitarian response includes the policies, systems, and mechanisms necessary to mitigate GBV risks, especially violence against women and girls, from the earliest phases of a crisis, and to provide safe and comprehensive services for those affected by GBV.

In 2005, after Hurricane Katrina hit the states of Louisiana and Mississippi, allegations of intimate partner violence in the affected areas increased up to three times the national rate.

During the 1993 Missouri floods, there was a rise in demand for protective services for women. The average state turn-away rate at domestic violence shelters in flood-impacted areas rose 111 percent over the preceding year. Women’s services reported sheltering 400 percent more women and children from violence than they had anticipated.

After Hurricane Hugo struck South Carolina in 1989, allegations of child abuse increased. In the first three months there was a nearly 300 percent increase in allegations of child abuse.

In California, the Santa Cruz Sex Assault team reported that sexual assaults increased after the 1989 Loma Prieta earthquake by 300 percent and there was a 600 percent increase in domestic violence reports during the first four months following the earthquake.

International Humanitarian Law- the laws of armed conflict (LOAC)

• Genèva Rules – rules of the protection of the victims of armed conflict

• Hague Rules– rules for the means and methods of armed conflict

When is IHL applicable?You look at the factual circumstances on the ground.Not a political decision.

The intensity of the conflict- Duration and extent of hostilites (sick, wounded, dead) - Types of weapons being used- The amount of weapons being used- Methods of fighting- Size of forces

Organisation of forces- Command structures and capabilities- Ability to apply international humanitarian law- Logistical abilities

1949: Four GENEVA CONVENTIONS1949: Four GENEVA CONVENTIONS1977: ADDITIONAL PROTOCOL I and II1977: ADDITIONAL PROTOCOL I and II2005: Additional protocol III2005: Additional protocol III

Customary International Humanitarian Customary International Humanitarian LawLaw

International Humanitarian LawInternational Humanitarian Law

International Non-international armed conflicts armed conflicts

Different types of conflict and different treaties applicable, but…strong and developed customary international humanitarian law

Basic principles of IHL

Military necessity Humanity

Distinction

Proportionality

Unnecessary suffering…

Precausion

The principle of distinction

• Warring parties shall at all times distinguish between civilians/civilian objects and

combatants/military objectives; and following only direct their actions towards the later

• This entails that indiscriminate attacks are forbidden.

• Dual-use dilemma (Kosovo)

Protected personsthat may not be attacked

are:• Civilians (unless, and for that time, they

directly participate in the fighting)• Wounded & sick combatants• Health care staff incl. religious staff• Ship wrecked• Prisoners of War • Civilians accompanying the forces• Staff and functions of total defence functions

Afghanistan

Gaza strip

”Direct participation in hostilities”

• The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and

• there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and

• the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).

AP I- Article 52 -- General protection of civilian objects

1. Civilian objects shall not be the object of attack or of reprisals.Civilian objects are all objects which are not military objectives as defined in paragraph 2.

2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.

Principle of proportionality

• Attacks, which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, are prohibited.

Precautions in attack AP I- Article 57 -- Precautions in attack

2. With respect to attacks, the following precautions shall be taken:

(a) those who plan or decide upon an attack shall:

(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them;

(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects;

(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;

Enhanced protection for certain buildings/facilities

• Facilities containg dangerous forces

• Cultural property

• Religious buildings/areas

Gender aspects on the use of force• Examples:

– The principle of proportionality» Are women weighed differently? (prison vs. materity

ward)

– Is a presumption of civilian status greater with women than men?» Innocent men at greater risk than innocent women?

– Is enough intelligence gathered on the specific actions, movements and needs of women and men respectively?

– Are we aware of our gender stereotypes?» Relevant mission specific training?

Is the law gender neutral?• IV GC art. 14 provides specific protection to mothers of children under

the age of 7.

• …and also to expectant mothers.

• IV GC art. 38 (5) provides again specific protection for: Children under fifteen years, pregnant women and mothers of children under seven years.

• IV GC art. 132 provides that interned shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist. Once again mothers with infants and young children are afforded special protection.

• IC GC art. 27 assumes that only women can be raped ” Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.

Gender issues in detention• Given the way the articles of the Geneva Conventions are written, it could be

argued that women enjoy higher legal protection when detained as internees.

• IV GC art 97 “A woman internee shall not be searched except by a woman.”• IC GC art.124, AP I art. 75 and AP II:5.2.a “Women internees undergoing

disciplinary punishment shall be confined in separate quarters from male internees and shall be under the immediate supervision of women.”

• Should there be a similar regulation concerning men as internees? As been shown by practice there is a risk that this situation is used to exploit cultural differences and gender perspectives during interrogation or other such procedures.

• There is also a need to analyze the situation of detained men and women. What are the main risk they run? Are there gender aspects of this? Is sexual violence more prevalent for men or women?

Gender stereotypes and the effects of weapons

• Prohibited weapons:I. those that cause superfluous injury or unnecessary suffering or

that are incapable of distinguishing between civilians or civilian objects and military targets.

II. Several conventions that regulate or prohibit the use of specific weapons such as biological and chemical weapons, anti-personnel mines and blinding laser weapons.

• Gendered questions:I. What is prohibited from being booby trapped?

II. How are weapons developed and tested?

III. Superflous and unneccessary to whom?

Why a gender perspective on IHL?

• Armed conflicts have profoundly different impact on women, girls, boys and men.

• The differences in status, needs and capacities must be analyzed and addressed when planning, performing and evaluating actions under IHL.

• It is important to collect and assess information of the situation of men, women, girls and boys respectively in the efforts to provide equal protection to all civilians. (SADD!)

• A gender perspective on IHL is necessary to ensure that all victims as well as all perpetrators are treated equally and without discrimination. The rights and obligations must not be influenced by gendered and often discriminatory perceptions.

GBV during armed conflict

I. What are the obligations of a State to adress this violence during conflict?

II. In light of international law and res 1325, what initiatives and/or activities could a State/NGO:s NGO:s engage in in order to prevent and respond to this violence (before/during/after conflict)?

In order to fully and equally protect civilians during armed conflict the discriminatory norms and

structures of society that maintain gender inequality must be acknowledged, addressed and eradicated.