{"id":24228,"date":"2025-03-03T14:00:33","date_gmt":"2025-03-03T13:00:33","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=24228"},"modified":"2025-03-06T19:40:22","modified_gmt":"2025-03-06T18:40:22","slug":"filling-the-gap","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/filling-the-gap\/","title":{"rendered":"Filling the Gap"},"content":{"rendered":"

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<\/a>. This situation is not exceptional; armed conflicts consistently have gender-specific impact<\/a>. 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.<\/p>\n

The Current Legal Framework<\/strong><\/p>\n

The normative foundations of IHL are established in the Hague Regulations<\/a>, the Geneva Conventions<\/a> (GCs), and their Additional Protocols <\/a>(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.<\/p>\n

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).<\/p>\n

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.<\/p>\n

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.<\/p>\n

Beyond IHL, human rights law continues to apply during armed conflict and serves as an important supplement. For women\u2019s rights, these obligations primarily derive from specialized women\u2019s rights treaties, most notably the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW<\/a>) at the international level, and regional instruments in the African<\/a>, Inter-American<\/a>, and European<\/a> human rights systems. The CEDAW Committee\u2019s General Recommendation No. 30<\/a> 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.).<\/p>\n

Binding UN Security Council resolutions have further complemented IHL by emphasizing the protection and empowerment of women in conflict settings. Resolution 1325<\/a> (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.<\/p>\n

Towards a Gender-Specific Legal Framework for IHL\u00a0<\/strong><\/p>\n

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.<\/p>\n

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<\/a>. This was followed by legally binding treaties such as the International Covenant on Civil and Political Rights (ICCPR<\/a>) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR<\/a>), as well as regional instruments like the European Convention on Human Rights (ECHR<\/a>). 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\u2019s rights treaties – such as CEDAW, the Bel\u00e9m do Par\u00e1 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.<\/p>\n

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.<\/p>\n

Proposal for a New Additional Protocol\u00a0<\/strong><\/p>\n

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.<\/p>\n

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.<\/p>\n

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<\/a>). 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.<\/p>\n

In addition to legal protections, the protocol must also reinforce women\u2019s 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.<\/p>\n

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<\/a> Israeli blockade of UN inquiries into sexual violence in Palestine and Israel<\/a>. Only through such concrete mechanisms can the new protocol move beyond aspirational rhetoric and provide tangible legal protections for women in conflict zones.<\/p>\n

Making a New Additional Protocol a Reality<\/strong><\/p>\n

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.<\/p>\n

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\u2019s rights, it is time to ensure that women receive the bare minimum of protection in armed conflicts under IHL.<\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[4358,3857,5074,3635],"authors":[7489,6784],"article-categories":[3572],"doi":[],"class_list":["post-24228","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-armed-conflict","tag-gender","tag-geneva-conventions","tag-international-humanitarian-law","authors-hanna-welte","authors-natali-gbele","article-categories-symposium"],"acf":{"subline":"Advancing Gender Justice with a Treaty for International Humanitarian Law"},"meta_box":{"doi":"10.17176\/20250304-000813-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/24228","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=24228"}],"version-history":[{"count":5,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/24228\/revisions"}],"predecessor-version":[{"id":24272,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/24228\/revisions\/24272"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=24228"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=24228"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=24228"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=24228"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=24228"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=24228"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}