Case prepared by Ms. Ioanna Voudouri, LL.M., student at the Geneva Academy of International Humanitarian Law and Human Rights, under the supervision of Marco Sassòli and Gaetane Cornet, professor and research assistant at the University of Geneva

N.B. As per the disclaimer, neither the ICRC nor the authors can be identified with the opinions expressed in the Cases and Documents. Some cases even come to solutions that clearly violate IHL. They are nevertheless worthy of discussion, if only to raise a challenge to display more humanity in armed conflicts. Similarly, in some of the texts used in the case studies, the facts may not always be proven; nevertheless, they have been selected because they highlight interesting IHL issues and are thus published for didactic purposes.

[Source: United Nations Security Council, Report of the Secretary-General on women and peace and security, 29 September 2011, S/2011/598]

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II. Overview of progress

A. Prevention

[1] [...] Prevention includes promoting targeted and coordinated measures to prevent conflict-related sexual violence, sexual exploitation and abuse and other forms of gender-based violence; ensuring that women’s conflict prevention efforts are supported and that early warning systems generate information about the specific threats that women and girls face; and explicitly addressing women’s rights and violations of such rights in reports to and resolutions of the Security Council or reports to human rights bodies, as important tools and mechanisms for prevention. Specific information on threats and challenges and instructions for action are critical for ensuring timely response and action. [...]

C. Protection

[...]

[2] Significant progress has been achieved at the normative level in this area over the past decade, including through the increased attention of the Security Council to the issues of women and peace and security, children and armed conflict and the protection of civilians. There is now a better understanding of the specific protection and security concerns of women, men, boys and girls and strong recognition that the integration of gender issues is essential to the effectiveness of the security sector.

[3] The normative framework for protection, however, still needs to be fully translated into more effective and better coordinated efforts on the ground. The challenges are daunting. The exceedingly high number of people displaced by armed conflict, generalized violence and human rights violations, estimated at 27.5 million, is a reflection of protracted conflicts and evolving patterns of armed violence. Women and girls often constitute the majority of displaced populations and are at particular risk of sexual and gender-based violence during flight, in the camps and during the return and reintegration phase. Continuing reports of sexual violence in the Democratic Republic of the Congo, as well as reports of human rights violations, including from recent commissions of inquiry established by the Human Rights Council on the Libyan Arab Jamahiriya (see A/HRC/17/44) and Côte d’Ivoire (see A/HRC/17/48), serve as reminders of the need to strengthen efforts to ensure respect of international legal obligations and to provide protection against such atrocities.

[4] Addressing security challenges and the distinct protection needs of women and girls requires long-term concerted efforts by all stakeholders and the unfaltering attention of the Security Council, including its informal expert group on the protection of civilians. It is critical to continue to invest in strengthening the capacities of national, regional and international actors to integrate gender perspectives in security policies, operating procedures, programmes and activities, examples include the May 2011 review by UNICEF of promising protection practices for child survivors of sexual violence and UNHCR standard operating procedures for sexual and gender-based violence coordination, which are used in 80 per cent of their operations in urban settings and in 93 per cent of camp settings.

[5] The capacity to prevent and respond to violations of women’s and girls’ rights must be integrated into the preparation, training and guidance of peacekeeping, humanitarian and national security sector actors. Contributions to the present report show a number of new initiatives to develop or improve training and guidelines on the protection, rights and particular needs of women and girls. These include gender e-learning courses for security personnel in Argentina and Mexico, the training strategy of the Department of Peacekeeping Operations to support the promotion of gender perspectives by all personnel in multidimensional peacekeeping activities, the Department of Peacekeeping Operations/Department of Field Support guidelines for integrating a gender perspective into the work of the United Nations military in peacekeeping operations, guidance and training developed by the United Nations Police Division on investigating and preventing sexual and gender-based violence, the integration of gender issues as part of the UNITAR peacekeeping training programme and the inclusion by WFP of specific training on sexual exploitation and abuse and gender-based violence in its training on protection in food assistance. A further example is the partnership between the Department of Peacekeeping Operations and the Department of Field Support, UN-Women and UN Action on Sexual Violence in Conflict to develop scenario-based training materials on combating sexual violence for military peacekeepers. In 2011, trainings based on these materials began in troop-contributing countries.

[6] The establishment of protection patrols and community policing are other good practices that could be expanded. Reports from missions in the Democratic Republic of the Congo, Haiti and Darfur show that protection patrols within and around camps and communities of internally displaced persons, as well as escorts for women during livelihood activities helped deter sexual and gender-based violence. Positive results were recorded in Haiti where United Nations Police community policing included an increased presence of women officers and a mobile police internally displaced persons gender unit specialized in dealing with sexual and gender-based violence. Other promising measures include the development of protection plans; the establishment of joint protection teams with women staff; provision of solar lights and lamps, water collection aids and fuel efficient stoves; and the deployment to missions of women protection advisers. The roll out of the WFP Safe Access to Firewood and Alternative Energy in Humanitarian Settings (SAFE) stoves initiative, for example, has reduced women’s exposure to violence during fuel collection in several countries. I welcome all these efforts and urge that they be evaluated to allow for good practices to be replicated.

[7] It is essential to continue to invest in strengthening the capacity of national security, legal and judicial institutions to address gender-specific protection challenges. In Timor-Leste, the United Nations Integrated Mission in Timor-Leste (UNMIT) appointed national gender officers in the Security Sector Support Unit and the Administration of Justice Support Unit. In Liberia, with UNDP support, the Liberian National Police established 58 women and child protection units across the country to provide protection to women, children and vulnerable persons; and the Ministry of Justice and Criminal Court established a Sexual and Gender-Based Violence Crime Unit. In Sudan, UNMIS supported capacity-building of the Sudanese National Police to address incidents of gender-based violence. In Colombia, efforts have been made by the Government, with the support of national and international actors, to improve programmes to protect victims and witnesses. Provision of documentation to women, including birth certificates, individual identity documentation, and certification of marriage and refugee status is another critical protection intervention supported by UNHCR and others. UNFPA has continued to train police and military units to respond sensitively to survivors of gender-based violence, including through support for the establishment of special units. UN-Women supports national security sector capacities to respond to and prevent gender-based violence in Haiti, Liberia, Timor-Leste and Uganda through initiatives such as the establishment of a women’s hotline in Liberia and the provision of response equipment to special protection units in Haiti. With the Ministry of Gender and Development in Liberia, UN-Women has supported local women in community peace huts to undertake conflict mediation and resolution, to address negative attitudes of men and boys, and to provide counselling and referral to survivors of sexual and gender-based violence.

[8] Gender-based violence is more prevalent and more severe when guns are readily available. This year (2011) marks the tenth anniversary of the United Nations Programme of Action on Small Arms, and significant steps have been taken in the process towards an arms trade treaty. Next year (2012) will see the Second Review Conference on the Implementation of the Programme of Action and the United Nations Conference on the Arms Trade Treaty. These events provide opportunities for gender and age issues to be considered in the formulation of small arms policy. In February 2011, the United Nations Office for Disarmament Affairs signed a memorandum of understanding with the International Action Network on Small Arms that included mainstreaming gender and diversity in the fields of arms control, disarmament, peace and security as one of the areas of cooperation. In addition, renewed attention has been given to the participation of women in disarmament, non-proliferation and arms control decision-making at the intergovernmental level with the adoption of General Assembly resolution 65/69.

[9] While improved protection and security, as well as preparation of first responders to address incidents of sexual and other gender-based violence are essential, the effectiveness of these measures depends upon women’s and girls’ participation to ensure that assistance directly responds to their specific needs and contributes to long-term prevention of violence against women and girls. All efforts to improve prevention and protection should also be coupled with increased resources to address the various social, health, educational, economic and legal needs of survivors. The severity of the protection challenges faced by women has serious resource implications, and I call on Member States to make special efforts to ensure that adequate resources are available in this area.

1. Does IHL provide special protection for women? In which circumstances? What are some examples of grounds for preferential treatment of women? (GC I-II, Art.12; GC III, Arts. 14, 25, 88, 97 and 108; GC IV, Arts. 14, 16, 21-27, 38, 50, 76, 85, 89, 91, 97, 124, 127 and 132; P I, Arts. 70 and 75-76; P II, Arts. 5(2) and 6(4); CIHL, Rule 134)
2. What protection does IHL give against rape and other forms of sexual violence? Does IHL also protect men against sexual violence? What is the position of the ICC Statute on this matter? (GC I-IV, Art. 3; GC IV, Arts 50-51-130-147; GC IV, Art. 27(2); P I, Arts. 75(2) and 76(1); P II, Art. 4(2)(a) and (e); CIHL Rules 90, 91 and 93)
3. Is rape a war crime? What additional measures could help put an end to this practice? Would an additional international instrument be useful? What provisions should it contain? (GC IV, Art. 147, ICC Statute, Art. 8(2)(b)(xxii) and (e)(vi)
4. Under IHL, does it matter whether the rape victim is a civilian, a combatant, a fighter, a militant sympathizer, or a terrorist?
5. Does a state violate IHL if rape is committed by its security forces even though it is not the government policy? Even though the state’s laws prohibit rape?
6. Do you agree with the “feminist criticism” of IHL which considers that women should not be granted special protection, as this is discriminatory?