Mothers and Others?

‘Gravity of Tenderness’ by The Fabler.

In a binary system, everything is either one thing or the other: A is never B. Gender scholars have long critiqued these dichotomies as analytical frameworks for understanding our world (Hinterberger, p. 8). Especially in international relations, feminist theorists have grappled with the insistence on the duality of gender, fixed into the binary categories of men/women and male/female, asserted in exclusionary oppositions like public/private that unambiguously establish the meaning of ‘masculine’ and ‘feminine’ (Scott, pp. 42-43). This is similarly true for the Law of Armed Conflict (LOAC): while International Humanitarian Law ostensibly relies on the neutral civilian/combatant distinction, this binary is in fact deeply gendered (Carpenter, p. 3), drawing up the idea of the civilian woman in need of protection against the category of the male warrior.

Across the four Geneva Conventions (GC) and their Additional Protocols (AP), women appear primarily through two frames: vulnerability to sexual violence and reproductive capacity (Gardam, p. 40). As Gardam points out, nearly half of the provisions that explicitly address women concern either expectant mothers (Articles 14, 16, 23, 50, 89 GCIV, Articles 8, 70 API), maternity cases (Articles 17, 18, 20, 21, 22, 23, 91, 127 GCIV, Article 8, 70 API), nursing mothers (Article 89 GCIV, Article 70 API), pregnant women (Articles 38, 98, 132 GCIV, Article 76 API, Article 6 APII), mothers with (dependent) infants or young children (Article 14, 38, 50, 132 GCIV, Article 76 API) or mothers of young children (Article 6 APII). The category of women is thus framed through pregnancy and motherhood. While these provisions remain highly relevant to a gendered development of LOAC (Kinsella, p. 252), the law assumes that, outside of these contexts, women are affected by armed conflict in the same manner as men and can thus equally rely on the protections of humanitarian law (Gardam, p. 40). This, however, does not reflect the gendered effects and experiences of armed conflict, which differ in terms of roles performed, treatment within and by military institutions, and the types of violence experienced (Chinkin, p. 678-679; Cockburn, p. 434). As such, questions of non-motherhood arise: what happens to those who do not reproduce?

This post argues that non-motherhood in LOAC is invisibilised. It uses the concept of ‘agency’ in feminist theory as a heuristic to make visible how maternalised binaries shape who becomes legible as a protected subject or responsible actor in conflict. It proceeds in three steps: it first introduces the concept of ‘agency’, then examines how agency is conceptualised in the ‘Women, Peace and Security’ (WPS) agenda, and finally seeks to map these insights for LOAC, illustrating possible legal implications through three examples. The aim of this blogpost is not to exhaust the many ways in which conceptualisations of agency from the field of Gender Studies can inform legal analysis, but to prompt reflection on legal exclusions and point to areas for further doctrinal and empirical research.

Agency – a Feminist Concept

Agency, generally understood as the ‘capacity and ability to act’ (Hinterberger, p. 7), is a central concern of feminist theory. As a concept, it creates space to examine how individuals navigate and respond to their social surroundings (ibid). In this regard, agency is linked to subjectivity: the ‘processes of how we become individuals within specific social and cultural formations’ (Moore, p. 203). Agency, then, can be understood as the ability of this individual ‘to resist, negotiate and transform certain forms of power that work on the subject’ (Hinterberger, p. 7).

A substantial body of feminist theory has challenged binary frameworks that structure many accounts of agency, wherein individuals either possess agency or lack it (Hinterberger, p. 8). This distortive capacity is of interest to legal analysis: by tracing how agency is conceptualised in other disciplinary realms, we can gain insight into the ways subjectivities may or may not be taken up, ignored, or mirrored by legal regulation and application.

Agency and Maternalism in the ‘Women, Peace and Security’ Agenda

Adopted by the Security Council in 2000, United Nations Security Council Resolution on Women, Peace and Security (UNSCR 1325) was the first global framework to address the situation of women and girls in conflict. It laid the foundation for what would later become the WPS agenda (UNDP 2019, p. 4). On the discursive level of the WPS agenda, women are mainly defined as mothers (Puechguirbal, p. 176). In this capacity, their features and skills are essentialised as inherently nurturing and caring (Martin de Almagro, p. 406). Thus, it is established that women will be more peaceful, specifically because they are mothers.

This claim, however, is undermined by a wide range of examples. As Mama and Okazawa‑Rey showcase, women take on all kinds of roles and sets of behaviour: they may act as fighters and commanders, as food providers, spies, or messengers. In order to uphold the peacemaker/warrior opposition nonetheless, the category of women is homogenised: regardless of the different reproductive stages across their lifetimes, or their roles in general, all women are conflated into the category of the mother and thus, the peacemaker (Puechguirbal, pp. 175-176). Women are thus rendered legible as agentic only when they conform to this role of the peacemaker – otherwise, their actions are overlooked. Hence, women’s political agency is confined to activities considered inherently suited to women, or in which they are perceived as more capable than men (Hall, p. 9).

At the same time, postcolonial thinkers point out that the peacemaker/warrior dichotomy reinscribes ‘racialized, and sexualized hierarchies’ (Pratt, p. 778). Pratt notes that although the discourse calls for women’s participation as peacemakers, it does not construct ‘men’ generally as their explicit binary counterpart. Rather, it is racialised men in conflict-affected contexts who are constructed as the ‘warrior’ obstacle to women’s agency. Racialised women are imagined to ‘embody the universal principles of peace and security as opposed to the local (tribal or ethnic) interests of particular communities’ (Gibbings, p. 531). As long as they act as these inherent peacemakers, they are seen as part of the international community, which is ‘positioned above the conflict zone’ (Pratt, p. 775). This depicts a colonial hierarchy in the form of ‘white men saving brown women from brown men’ (Spivak, p. 92). The peacemaker/warrior binary thus serves to maintain a colonial power structure and produces a limited, gendered, and racialised construction of agency, which invisibilises diverse lived experiences and reinforces colonial structures.

In WPS policymaking, this invisibilising effect has led to structural omissions from operational post-conflict policies: as ex-combatants, women are oftentimes excluded from UN Disarmament, Demobilisation and Reintegration programmes, where former belligerents receive resettlement or reintegration support. Women thus become the ‘invisible participants’, neither recognised as combatants nor adequately protected as civilians. This illustrates how the peacemaker/warrior binary does not hold space for warrior-like agencies, nor for other forms of agency beyond the role of the peacemaker. Its dichotomy thus renders many contributions and experiences invisible.

Mapping Parallels: Agency and Maternalism in Law of Armed Conflict

These insights into WPS discourse offer a useful point of departure to trace the ways in which international law aligns with existing power structures and to challenge its conceptual foundations (with regard to this methodological goal, see Otto, p. 494). By inquiring how agency is constructed in LOAC, parallels between WPS and LOAC become visible: in WPS, the peacemaker/warrior binary is discursively persistent. In LOAC, women are similarly predominantly addressed as civilian mothers in need of protection in opposition to the male warrior (van Dijk, pp. 300-301; Gardam, p. 40). At the same time, the construction of women through this biologically determined category (Oosterveld, p. 397) points to processes of essentialisation that operate across both regimes. In the WPS context, the peacemaker/warrior binary produces a limited construction of agency – that is, a limited understanding of how subjects are imagined to be capable of interacting with their environments. To LOAC, this matters if it restricts the ways in which individuals can be imagined to engage with legal frameworks as part of their social surroundings, whether in seeking protection, reparation, or justice. In the following, the directions in which this dynamic may affect the lived realities of non-mothers are outlined.

On the one hand, mothers are accorded priority in the distribution of relief consignments (e.g., Article 70(1) API). Yet, such a singular framing risks marginalising needs that women experience irrespective of their maternal status. As such, the absence of basic sanitary supplies can have gendered implications (Gardam/Charlesworth, p. 154). Shalhoub-Kevorkian recounts the testimony of a Palestinian woman who, amid surrounding violence, described the profound embarrassment and loss of dignity she experienced while being confined in her home with other menstruating people as well as children. Unable to ventilate the room or safely access sanitation facilities, those who menstruated were segregated in a corner, their condition publicly known (Shalhoub-Kevorkian, p. 76). Despite these accounts, the provision of menstrual hygiene products has been treated as a minor concern (Gardam/Charlesworth, p. 160). Such experiences point to avenues where LOAC fails to take account of women as subjects in their own right.

A similar dynamic is also worth considering in access to justice and reparation. Ibrahim recounts the story of a young woman in post-conflict Sierra Leone, who had been the ‘wife’ of a rebel commander and, after the conflict, remained in an abusive relationship not out of attachment but because it provided her with shelter. Due to a lack of resources, leaving would have required a degree of economic independence she did not possess (Ibrahim, p. 257). Her ongoing trauma was thus entrenched in the ‘material conditions and gender’ (Ibrahim, p. 258). As states are often reluctant to pursue claims on behalf of individuals with limited political or economic status (Gardam/Charlesworth, p. 158), individuals such as in this example – caught in between participation and suffered trauma – may fall through the cracks. At the same time, the individual described does not conform to the victim figure implicitly portrayed in LOAC: the helpless, peacemaking mother in need of protection. Thinking with Pratt from a postcolonial perspective, we may enquire if racialised non-mothers consider seeking justice if they do not present as the ‘peacemaker to their community’.

On the other hand, the prosecution of Western women associated with ISIS has frequently relied on an understanding of women as mothers. Charges have not only included terrorism-related and international crimes, but also other offences linked to parental abduction and duty of care breaches toward their children. Notably, such charges have only been brought against mothers, but not fathers. This prosecutorial practice suggests that women’s criminal responsibility is in part framed through their maternal roles, inviting a reconsideration of international criminal accountability.

Thinking About the Law of Armed Conflict Beyond Motherhood

The essentialised and homogenised conceptions of agency discussed at the level of the WPS agenda draw attention to the ways in which LOAC is implicated in similar modes of binary thinking. Here, the concept of agency has served as a heuristic tool to highlight how and where LOAC can render non-mothers invisible, and to clarify some of the conditions under which this invisibility may matter. As previously pointed out by Gbele/Welte, recognising non-motherhood as a meaningful position within international law is part of a broader project. It entails acknowledging that women’s lives are not defined solely by reproduction or care, and that their political subjectivities cannot be reduced to maternalised ideals of peace.