Filling the Gap
Advancing Gender Justice with a Treaty for International Humanitarian Law
Wars are never gender-neutral. Gaza serves as a stark reminder of this reality, with nearly one million women and girls bearing “the worst brunt” of nine months of conflict, according to the UN Women Special Representative in the Occupied Palestinian Territory. This situation is not exceptional; armed conflicts consistently have gender-specific impact. Yet, there remains a significant gap in the normative framework addressing this issue. International Humanitarian Law (IHL) continues to rely on foundational instruments such as the 1899 Hague Regulations and the 1949 Geneva Conventions, along with their Additional Protocols. However, these treaties lack adequate gender-specific provisions. At the time of their drafting, feminist legal perspectives were absent, and despite increasing calls for a “feminist policy” in armed conflicts, these frameworks have not been meaningfully updated. The ongoing humanitarian crisis in Gaza underscores the urgent need for a gender-sensitive expansion of IHL to finally address this gap in a systematic and legally binding manner.
The Current Legal Framework
The normative foundations of IHL are established in the Hague Regulations, the Geneva Conventions (GCs), and their Additional Protocols (APs). While IHL claims to offer indiscriminate protection to all civilians, it does not provide a sufficient legal framework to address the gendered impact of armed conflict.
Explicit provisions for women remain sparse, 24 to be exact. The Hague Regulations do not mention women at all but rather refer to the protection of “family honor” (Art. 46). The Geneva Conventions make distinctions based on sex, but primarily in relation to medical treatment for sick, wounded, and shipwrecked women (Art. 12(4) GCII) or the treatment of women prisoners (e.g., Arts. 14(2), 25(4) GCIII).
Many of the provisions in the GC are limited to the protection of pregnant women (e.g. Arts. 38(5), 76(2)(3) API, 6(4) APII). What do most of these regulations have in common? They do not protect women as women, but as an object for another being. Whether as a pregnant woman, addressing the unborn child, as a mother, addressing the child. The same pattern emerges in provisions that link women’s protection to their roles as mothers or to patriarchal notions of “honor” – ultimately neglecting the rights of childless or unmarried women.
Few provisions specifically safeguard women as individuals. Those that do primarily address sexual violence, such as Art. 76(1) API and Art. 27 GCIV. Even these, however, often focus on protective measures rather than explicitly prohibiting gender-based violence – a standard approach elsewhere in IHL. In some instances, IHL interprets sexual violence as a form of torture and, therefore, as a grave breach under Common Arts. 49, 50 GCI, 50, 51 GCII, 129, 130 GCIII, and 146, 147 GCIV. This classification applies to acts such as rape, sexual slavery, enforced prostitution, and enforced pregnancy. However, this legal framework creates gaps and legal uncertainty, as it relies on interpretation rather than a clear legal provision and does not cover all forms of sexual violence.
Beyond IHL, human rights law continues to apply during armed conflict and serves as an important supplement. For women’s rights, these obligations primarily derive from specialized women’s rights treaties, most notably the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) at the international level, and regional instruments in the African, Inter-American, and European human rights systems. The CEDAW Committee’s General Recommendation No. 30 explicitly interprets states’ obligations in armed conflicts, addressing the prevention of sexual violence, human trafficking, and health risks, including the spread of HIV resulting from mass rape. Crucially, the Committee extends these obligations beyond state actors to all parties in a conflict, broadening the scope of protection for women (para. 16 ff.).
Binding UN Security Council resolutions have further complemented IHL by emphasizing the protection and empowerment of women in conflict settings. Resolution 1325 (2000) acknowledges the gendered impact of armed conflict and underscores the role of women in peacebuilding. It calls for increased female participation in peace processes, protection from gender-based violence, and the integration of gender perspectives in conflict resolution and post-conflict reconstruction.
Towards a Gender-Specific Legal Framework for IHL
The fragmented and inconsistent treatment of gender issues within IHL does not constitute an adequate legal regime. A unified approach that systematically incorporates gender-specific protections is urgently needed. Drawing from related areas of international law – particularly human rights law – could provide valuable insights for such an approach, given that human rights obligations remain applicable during armed conflict and complement the protections afforded by IHL.
The catastrophic human rights violations of World War II underscored the necessity of establishing fundamental human rights protections, leading to the adoption of the Universal Declaration of Human Rights. This was followed by legally binding treaties such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), as well as regional instruments like the European Convention on Human Rights (ECHR). Initially, these treaties contained minimal gender-specific provisions, apart from prohibitions on gender-based discrimination (e.g., Art. 3 ICCPR and ICESCR). However, the development of specialized women’s rights treaties – such as CEDAW, the Belém do Pará Convention (Americas), the Istanbul Convention (Europe), and the Maputo Protocol (Africa) – has significantly transformed the legal landscape. These instruments not only establish explicit protections against gender-based violence but also influence gender-sensitive interpretations of general human rights treaties.
In contrast to IHL, human rights law has thus evolved to integrate gender-specific concerns. This comparative perspective suggests that IHL could benefit from a similar approach. Introducing a gender-specific Additional Protocol to the Geneva Conventions – following the precedent set by previous Additional Protocols that responded to evolving warfare dynamics, such as non-international armed conflicts – could provide the necessary legal foundation for gender-sensitive protections in IHL.
Proposal for a New Additional Protocol
A new Additional Protocol to the Geneva Conventions should aim to establish comprehensive, intersectional, especially racially sensitive, and enforceable protections for women in armed conflict.
At its core, the protocol must explicitly prohibit sexual violence in all its forms, ensuring that such acts are classified as grave breaches of IHL. To achieve this, it is crucial to incorporate clear and broad definitions of sexual violence that extend beyond rape, in alignment with Art. 3 of the Istanbul Convention. Beyond addressing sexual violence, the protocol must also guarantee access to reproductive and psychological healthcare for women in armed conflicts. This includes ensuring the availability of sexual and reproductive health services, such as contraception, safe abortion, and comprehensive post-rape care. Additionally, the protocol should mandate psychological support services for survivors of conflict-related sexual violence, recognizing the severe and lasting impact of gender-based violence in war. Without such provisions, the current legal framework remains inadequate in addressing the health-related consequences of gender-based violence in armed conflicts.
This protocol should include existing provisions, such as the protection of pregnant women, mothers and female prisoners, but also ensure a modern and feminist approach, including the woman as herself. The protection of a woman’s honor has always been linked to her suitability for marriage to a man (Gardam, The Silences in the Rules That Regulate Women during Times of Armed Conflict, S. 40). This patriarchal association of a woman’s rape with even a non-existent man is not only degrading, but beyond insufficient to consider the grave consequences of sexual violence against women, which is why it is time for IHL to let go of the narrative of a woman’s honor.
In addition to legal protections, the protocol must also reinforce women’s participation in peace and security processes. Ensuring equal representation in conflict prevention, peace negotiations, and post-conflict reconstruction is essential to addressing the root causes of gender-based violence and fostering sustainable peace. The protocol should align with and expand upon the Security Council Resolution 1325, mandating the inclusion of women in decision-making processes at all levels of peace and security governance.
To ensure effective implementation, the protocol must also establish mandatory training programs for armed forces on gender-specific protections in armed conflict. Additionally, robust monitoring, investigation, and enforcement mechanisms are necessary to prevent impunity for violations. The protocol should furthermore introduce binding obligations on states to facilitate and cooperate with investigations into gender-based violence, preventing obstructions such as the current Israeli blockade of UN inquiries into sexual violence in Palestine and Israel. Only through such concrete mechanisms can the new protocol move beyond aspirational rhetoric and provide tangible legal protections for women in conflict zones.
Making a New Additional Protocol a Reality
Advocates for a feminist IHL have often hesitated to push for a new legal framework, instead opting for interpretive approaches to the existing legal order. However, this strategy disregards the dynamic evolution of international law – and IHL in particular. The existing Additional Protocols demonstrate that IHL is not a static or outdated framework but a dynamic body of law capable of adapting to contemporary realities.
Introducing a new Additional Protocol is not merely symbolic; it is essential to normalizing a feminist approach to IHL and guaranteeing legal protections for women. Relying solely on interpretive adjustments fosters inconsistency and perpetuates gaps in legal protections. Just as international human rights law evolved to explicitly protect women’s rights, it is time to ensure that women receive the bare minimum of protection in armed conflicts under IHL.
Natali Gbele is a PhD-candidate and research assistant at the Chair for International Law and Public Law (Professor Dr. Christian Walter) at LMU Munich. Her focus field is International Humanitarian Law.
Hanna Welte is a PhD-candidate and research assistant at the Chair for International Law and Public Law (Prof. Dr. Christian Walter) at LMU. Her research focuses on human rights law, in particular women’s rights in regional human rights systems.
The article accuses Israel for blocking an UN inquiry.
Let’s look into this accusation.
Unfortunetaly, the article doesn’t mention the reason for this blockade:
The commission of inquiry is formed by UN officials who made anti-Semitic statements in the past and sound like neo-Nazis.
One of these officials is Miloon Kothari. He said in an interview in July 2022:
“We are very disheartened by the social media that is controlled largely by, whether it is the Jewish lobby or it is specific NGOs, a lot of money is being thrown into trying to discredit us,” he said in the interview. You don’t believe it? Check out the entire transcript of the interview in the sources, and you can judge for yourself [1].
The idea of a Jewish-controlled media was also used by the Nazis [2]. It also finds itself until today in Article 22 of Palestinian Hamas’ charter [3].
Therefore, it is completely comprehensible that Israel is not cooperating with such people. There are hundreds of thousands Holocaust survivors living inside Israel, and those who have sent their relatives into the gas chambers, have expressed the same views as Khotari.
It would be great if such vital information could be given in the article itself.
In general, it would be worth taking a closer look at UN Women: The organization is not credible, as it has failed to condemn the systematic rape against Israeli women, commited by Hamas, for months [4].
And let’s remember: Saudia-Arabia is chairing of the UN Commission of the Satus of Women [5].
Saudi-Arabia does not accept Israel’s right to exist and is also not exactly a champion of women rights. According to Saudi-Arabian law, women can be stoned to death for adultery [6]. A body led chaired by Saudi-Arabia is all but a credible partner in the fight for women rights [7].
The accusations of UN Women against Israel are absurd. It’s singling out the only Jewish state, while sparing out real women rights abusers, like Saudi-Arabia.
Thus, it’s not a surprise that the UN itself was recently accused of misogyny, especially against black women [8].
Besides it’s anti-Jewish conspiracy theory, Milan Kothari said in the same month: “I would go as far as to raise the question of why Israel is even a member of the United Nations.” [9]
Kothari is not the only UN official who expressed anti-Israel tropes.
The Deputy Chair of UN Women, Sarah Douglas, published 153 (!) anti-Israel posts. For example, she spread the blatant lie that Israel attacked the Al-Ahli hospital, although it was proved several times that a rocket of the Palestinian Islamic Jihad failed short [10].
No sane state would cooperate with people like Kothari or Douglas.
Add to that: It is unacceptable that an UN official questions the membership of an UN member state. Any state would refuse the cooperation with an UN official who questions its very membership at the UN.
When it comes to protecting women’s rights, it would therefore be more effective to call for UN bodies to be made up of people without anti-Semitic and anti-Israeli prejudices instead of pillorying Israel without at least presenting the background.
Kothari’s anti-Semitic views are not an exception within the UN.
Anti-Israel sentiment is not uncommon within the UN, with the tiny state condemned by the General Assembly almost three times as often as all other states combined in 2024 [11].
Is Israel really almost three times as bad as North Korea, Syria, Iran, Russia and Libya combined? That’s ridiculuous.
A feminist foreign policy should demand that the UN will be composed by officials without anti-semitic and misogynistic expressions.
A few further remarks about the article:
The article begins with a focus on the situation in Gaza.
I consider this surprising, especially when you look at current world events. In any case, when focusing on Gaza, the misogynistic rule of Hamas and its violence against women – first and foremost Palestinian, but since October 7 also Israeli – should at least be explicitly mentioned, at least once.
The beginning of the article is even more surprising when you consider that there are currently more than 12 million refugees from Sudan. In Sudan, rape is used as a weapon of war [12].
It still becomes more surprising when you consider that one massacre after another has been committed against Alawite and Christian minorities in Syria for months [13]. But also before the fall of the Assad regime, rape was used by several armed groups in Syria as a weapon of war [14].
It is remarkable that the authors didn’t name Iran, Saudi-Arabia or Syria in an article about women rights in international law. All these states are right now involved in at least one armed conflict.
Instead of naming actual women rights abusers, the article chooses to name Israel three times. Hamas, the Palestinian terror group, who raped and gang-raped Jewish women hasn’t been mentioned once, on the other hand.
In any case, when focusing on Gaza, some context is needed.
First of all, let’s contextualise the current war against the Palestinian terror group Hamas.
On October 7, Hamas committed the largest massacre of Jews since the Holocaust. Within a few hours, Hamas slaughtered 1,200 Israelis.
Hamas has raped and gang-raped systematically Israeli women [15]. Also Israeli female hostages are being sexually harrassed during their captivity [16].
The war could end every second. Its continuation is Hamas’ responsibility.
Hamas has just to release the Israeli hostages, among them Israeli women who are being constantly raped [17], and lay down its arms.
Without Hamas’ genocide against Jews [18], the whole situation would not exist.
At the end, I want conclude with a general advice for UN Women:
Ignoring the suffering of Israeli women doesn’t help Palestinians. Demonizing Israel doesn’t help Palestinians either. I am not saying this out of concern for Israel.
Israel, a technological superpower with an innovative economy and a GDP per capita higher than that of the UK, France, Italy and Spain, will continue to prosper, regardless of what absurd demonization campaigns are launched against Israel. And regardless of the defeaning silence of UN Women after the sexual violence against Israeli women.
After the terrible massacre of October 7, Israel has made the tables turn. Within just a few months, Israel changed the face of the Middle East for decades. It weakened substantially the Iranian terror axis, starting with Hamas in Gaza, continuing with Hezbollah in Lebanon and finishing – at least provisionally – in Syria. On the way, after two large-scale missile attacks by Iran, Israel excercised its right to self-defense and launched a counterattack in which it took out the Iranian air defense system [19].
This underlined Israel’s unrestricted air supremacy in the Middle East.
So, why am I concerned at all? Because I don’t just care for Israeli rape victims. I care -not less – for non-Israeli rape victims. I am thankful that Israel is strong enough to protect Israeli women from being raped (although the Jewish state failed bitterly on October 7).
But what about the girls and women in Syria, in Sudan, in Afghanistan?
They are the real victims of the obsessive hostility [20] towards Israel at the UN and its sub-organization UN Women.
They are the real victims when such an important body as UN Women is staffed by people like Mr. Kothari who has made anti-Semitic statements. The disproportionate focus on Israel further encourages regimes that actually trample on women’s rights to continue with their misogynist policies. As long as Israel is obsessively singled-out [21], these women rights abusers know that the focus doesn’t lie on them [22].
I therefore hope that UN Women’s actions will change in the future.
Not only for Israeli women. But also for all other women, especially those, who suffer under terrorists and rapists from groups like Hamas, ISIS, the Taliban or the Iranian “modesty police”.
Sources:
[1] https://unwatch.org/un-commissioner-miloon-kothari-denounced-for-antisemitic-remarks-full-transcript/ ; https://www.jpost.com/international/article-713676
[2] United States Holocaust Memorial Museum – How the Nazis Manipulated the Masses: https://www.youtube.com/watch?v=pnOL7_-mGvM&ab_channel=UnitedStatesHolocaustMemorialMuseum
[3] https://avalon.law.yale.edu/21st_century/hamas.asp
[4] https://www.telegraph.co.uk/news/2023/11/29/the-uns-silence-on-the-rape-of-israeli-women-makes-a-mocker/ ; https://taz.de/Gewalt-an-Frauen/!5972451/ ; https://taz.de/Sexualisierte-Gewalt-der-Hamas/!5987483/
[5] https://www.dailymail.co.uk/news/article-13247979/Outrage-Saudi-Arabia-chosen-lead-womens-rights-group-despite-abysmal-record-equality-kingdom-wives-stoned-death-adultery.html
[6] https://www.ibtimes.co.uk/saudi-arabia-where-women-are-stoned-death-lead-un-womens-rights-group-1724176
[7] https://www.derstandard.de/story/3000000213604/un-frauenrechtskommission-massive-kritik-an-neuem-vorsitz-durch-saudi-arabien
[8] https://taz.de/Geschasste-UN-Sonderberaterin/!6051666/
[9] https://unwatch.org/un-commissioner-miloon-kothari-denounced-for-antisemitic-remarks-full-transcript/ ; https://www.jpost.com/international/article-713676
[10] https://www.ynetnews.com/article/b10ggr08p
[11] https://unwatch.org/un-condemns-israel-17-times-6-on-rest-of-world-combined/
[12] https://www.dw.com/en/crisis-in-sudan-sexual-violence-rape-and-ethnic-attacks/a-69538323
[13] https://www.washingtoninstitute.org/policy-analysis/syrias-transitional-honeymoon-over-after-massacres-and-disinformation ; https://www.newsweek.com/hundreds-minorities-including-christians-killed-syria-reports-2041764 ; https://www.reuters.com/world/middle-east/hundreds-killed-syrian-crackdown-alawite-region-war-monitor-says-2025-03-08/
[14] https://www.europarl.europa.eu/doceo/document/E-7-2014-003947_EN.html ; http://peacewomen.org/resource/harvard-podcast-sexual-violence-weapon-war-syria
[15] https://www.nytimes.com/2023/12/28/world/middleeast/oct-7-attacks-hamas-israel-sexual-violence.html ; https://www.theguardian.com/world/2024/jan/18/evidence-points-to-systematic-use-of-rape-by-hamas-in-7-october-attacks ; https://www.fr.de/politik/missbrauch-israel-gaza-krieg-hamas-anschlag-oktober-sexuelle-gewalt-zr-93051548.html ; https://www.freitag.de/autoren/alina-saha/feminismus-nach-dem-7-oktober-un-women-schweigt-lange-zum-terror-der-hamas
[16] https://www.timesofisrael.com/teens-forced-to-perform-sexual-acts-on-each-other-report-to-un-details-hamas-torture/ ; https://www.nytimes.com/2024/03/26/world/middleeast/hamas-hostage-sexual-assault.html ; https://edition.cnn.com/2024/03/26/middleeast/amit-soussana-israeli-hostage-hamas-sexual-assault-intl/index.html
[17] https://apnews.com/article/harris-conflict-related-sexual-violence-hamas-israel-70934ae9ca7255c0aef48e1924644ce7
[18] https://www.theatlantic.com/international/archive/2023/10/hamas-covenant-israel-attack-war-genocide/675602/ ; https://www.wsj.com/articles/the-scenes-of-genocide-i-saw-in-israeli-morgues-hamas-oct-7-77d45c23 ; https://www.jpost.com/opinion/article-770704 ; https://www.theaustralian.com.au/commentary/hamas-intending-nothing-less-than-a-second-holocaust-niall-ferguson/video/248ab4e66a7ed0b5ac3180537e065024
[19] https://www.understandingwar.org/backgrounder/consequences-idf-strikes-iran
[20] https://www.diepresse.com/18731663/die-uno-und-ihre-obsession-mit-israel
[21] https://www.amadeu-antonio-stiftung.de/en/anti-semitism/what-is-israel-related-antisemitism/
[22] https://hoyer.house.gov/media/press-releases/hoyer-op-ed-united-nations-historic-anti-israel-bias-emboldened-hamas