icrc and gender perspectives in international humanitarian law … 5 - gender in... · chastity and...
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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 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 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 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
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
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
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