The silences in the rules 1

The silences in the rules that regulate women during times of armed conflict
Gardam, J. (2018). The Oxford handbook of gender and conflict. UK: Oxford University Press. Retrieved from: The%20Oxford
%20Handbook%20of%20Gender%20and%20Conflict%20by%20Fionnuala%20Ní%20Aoláin,%20Naomi%20Cahn,%20Dina
%20Francesca%20Haynes,%20Nahla%20Valji%20(Eds.)%20(z-lib.org).pdf

The Law of the Armed Conflict (LOAC) is at the center of the author’s narrative and analysis.
Doing gender analysis of the LOAC did not only present a historical overview of the circumstances
that brought about the law but also the features which were divisive for feminist scholars and lawyers.
In reading this material, you try to determine why the LOAC is deemed not to have full protection of
women and also reflect on the so-called differentiated experience of men and women in times of
armed conflict or war.
After reading this material, you are expected to:
a. demonstrate an understanding of the criteria used in gender analysis
b. reflect on the masculinist assumptions regarding women in times of armed conflict

Key Concepts to Understand

Additional Protocol I Additional Protocol II honor of men honor of women
hors de combat law of armed conflict law of Geneva law of the Hague
proportionality zero casualties

The law of armed conflict (LOAC), as its name suggests, is that part of international law
that regulates the conduct of armed conflict. Its aim is to protect persons who are not or are no
longer directly participating in the hostilities and to restrict the means and methods of warfare
available to the warring parties. On the whole, feminist international lawyers have sidestepped
scrutinizing the adequacy of LOAC in its treatment of the situation of women caught up in armed
conflict. The exception to this neglect is an intense—and some might say obsessive—focus on
the criminalization and punishment of sexual violence against women during hostilities
through international criminal law (ICL) xxx. This general disinterest in LOAC is in contrast to
the vigorous, broad, and multifaceted debate that has characterized the topic of women and
human rights law (HRL). Frequently, this latter debate has encompassed issues and situations
involving women and armed conflict, and it is true that the distinction between the two regimes
is becoming less rigid, with HRL assuming an increasing role during such times. Nevertheless,
LOAC remains the lex specialis during periods of armed conflict and occupation, and it is a
powerful and effective protective regime if an individual can fit into one of its categories.
It is not as if LOAC lacks challenges for feminists. It is a rich field in which to view
the operation of gender on two distinct levels. xxx, LOAC contains first the quintessential gender
—male, the warrior—and his essential foil, the weak and powerless “feminine” civilian in need of
protection (Gardam 1993). Second, the rules protecting both combatants and civilians assume a
female subject that has certain “natural” characteristics, particularly modesty and weakness,
that help to constitute her honor. All the provisions of LOAC dealing with this subject are based
on these two characteristics, and the way the regime is interpreted, disseminated, and applied
reinforces these limiting and destructive gender stereotypes. It is therefore disappointing, given
the level of armed conflict experienced in today’s world and its impact on women, that LOAC as
a whole has not been subjected to broader scrutiny by feminists (but see
Gardam and Jarvis 2001). xxx
What Is the Law of Armed Conflict? The provisions of LOAC cover both international
and non-international armed conflicts. This ancient, complex, and highly detailed set of rules
deals with such diverse topics as air, sea, and land warfare, weapons, prisoners of war, civil
defense, and the protection of civilians in occupied territories, to name just a few. Although
 The silences in the rules 2

LOAC is the most codified part of international law, the majority of its provisions also are
reflected in customary modern-day international law (see Henckaerts and Doswald-Beck 2006). Such a
status is significant for those conventional rules that do not enjoy widespread acceptance
among states actively involved in armed conflict.
Two powerful and influential stakeholders have affected the development,
implementation, and interpretation of LOAC: the military establishment of states and the
International Committee of the Red Cross (ICRC). LOAC primarily governs the conduct of militaries
that are, in the main, responsible for its implementation. The term “military” in this context refers
to the traditional well-organized and well-equipped professional armed forces of primarily
Western states, for which the LOAC regime was originally designed, a provenance that it still
reflects today. In particular, LOAC has struggled to maintain its relevance in the era of armed
hostilities involving nonstate actors, as exemplified by the so-called war on terror (Gardam 2010).
The Swiss based association, the ICRC, is known as the promoter and guardian of LOAC. In
this role it disseminates, monitors compliance with, and contributes to the development of
LOAC. As such, the ICRC occupies a unique place in the international legal system, with its
mandate recognized by states. The relationship between the military establishment of states
and the ICRC is complex and multifaceted, but one thing is clear; without the support of both
these entities, little can be achieved in terms of the improvement of the legal protections
available to those caught up in armed conflict, xxx.
The terminology in use today in this area of international law reflects the influence of
both the military and the ICRC. Originally, LOAC was referred to as the laws and customs of
war or the law of war. These terms are still in use today. Nowadays, however, with the advent of
the 1945 United Nations Charter outlawing war and the adoption of the four 1949 Geneva
Conventions, together with the growing emphasis on human rights, this area of law has become
better known as either LOAC or international humanitarian law (IHL). LOAC is the preferred term
of the military in recognition of the utilitarian nature of the regime and the fact that it serves the
demands of military efficiency.
IHL, with its emphasis on the humanitarian aspects of the rules, is the preferred term
of the ICRC. Their choice of name is part of a deliberate strategy to expand the scope of the
rules and to change the balance they incorporate between the demands of military necessity
and considerations of humanity, in favor of the latter. xxx.
The distinction between the utilitarian and humanitarian basis of LOAC is xxx reflected in
the structure of the regime itself, where a distinction is often drawn between the Law of the
Hague and the Law of Geneva. The former refers to the rules that govern the actual conduct of
hostilities, for example, laws that determine the weapons which can legitimately be used in
armed conflict and that define what constitutes a military target. The 1899 and 1907 Hague
Convention IV Respecting the Laws and Custom of War on Land and their annexed Regulations
are examples of these provisions. The Law of Geneva or humanitarian law proper, as it is often
referred to, primarily deals with the victims of war, such as civilians in occupied territories and
prisoners of war. The four 1949 Geneva Conventions and their two Additional Protocols adopted
in 1977 (Protocol I dealing with international armed conflicts and Protocol II dealing with non-international armed conflicts) are
the best known of the conventional documents in this area and are its major components. There
has been a gradual breakdown in the distinction between Hague Law and Geneva Law that
culminated in the adoption of Additional Protocol I, which deals with both the law of hostilities
and humanitarian law. An illustration of this convergence is the provisions of the Additional
Protocol that deal with the protection of the civilian population from the effects of hostilities, such
as Article 51, which contains the requirement of proportionality in the conduct of attacks.
Traditionally, the law in relation to international armed conflicts, those between states, has been
more developed than that in relation to non-international armed conflicts, those between a state
and armed group within the territory of a state or states.
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The major treaty rules of relevance to non-international armed conflicts are xxx the four
1949 Geneva Conventions and Additional Protocol II, which provide limited protections for those
caught up in these conflicts. State practice has moved beyond this treaty law, however, and
there is now a considerable body of customary international law applicable to non-international
armed conflicts. Consequently, there is growing convergence between the rules governing
international and non-international armed conflicts so much so that there are calls for the
abolition of the distinction. LOAC (along with HRL) is also one of the cornerstones of the body of ICL
that governs armed conflict. For example, its provisions form a significant component of the
jurisdiction of the two ad hoc international criminal law tribunals, the International Criminal
Tribunal for the Former Yugoslavia and the 1994 International Criminal Tribunal for Rwanda, as
well as that of the 1998 permanent International Criminal Court.
A final feature of LOAC in common with international law generally is that its
development, implementation, and enforcement, until very recently, has taken place without any
significant contribution from women, be it within the military establishment of states, the ICRC,
or state delegations to the diplomatic meetings that have negotiated and adopted the treaty
rules. This absence of women is perhaps even more marked in the case of LOAC than in
international law generally in light of the intensely masculine nature of the activity it regulates
and the participants therein. xxx
How Are Women Portrayed in LOAC? Theoretically, women benefit from all the
provisions of LOAC. In common with the civilian population, they enjoy the rules of LOAC that
provide protection against the effects of hostilities and during times of occupation (Kinsella 2005).
As combatants they are covered to the same extent as men by the provisions relating to the
legitimate means and methods of combat and those in favor of prisoners of war, the wounded,
the sick, and the shipwrecked.
The four 1949 Conventions and their two Additional Protocols establish a system of
equality in the sense that no adverse distinction can be drawn between individuals on the basis
of, inter alia, sex. Differentiation on the basis of sex is thus permissible as long as its impact is
favorable. This approach to equality permits the rules providing specific protections for women
that are contained in all four 1949 Geneva Conventions and both their Additional Protocols.
These provisions are all located in the Law of Geneva dealing with the victims of armed conflict,
and none are found in the rules regulating the actual conduct of hostilities (ICRC 2016).
The system of special protection for women is founded in broad provisions that deal with
the “regard” or “consideration due to women on account of their sex,” and require that they be
accorded special respect and protection (First Geneva Convention, art. 12(2); Second Geneva Convention, art. 2(2);
Third Geneva Convention, art. 16; Fourth Geneva Convention, arts. 13, 27(3); Protocol I, arts. 9(1), 69(1), 70(1), 75(1); Protocol II,
arts. 2(1), 4(1); Gardam 1993). Standing alone, the provisions in relation to “regard,” “consideration,” or
“special respect” are statements of general principle and impose no concrete obligations. They
are supplemented by more detailed rules. For example, women prisoners of war and internees
are entitled, where feasible, to separate quarters and sanitary conveniences and to supervision
by women. Other provisions are designed to directly protect women from sexual assault; and
pregnant women and mothers of young children are the beneficiaries of a number of provisions
dealing with such matters as early repatriation, priority in medical care, emergency relief, and
the provision of food and medical supplies. xxx
Gender manifests itself in LOAC in a number of ways (Chinkin 2014). For a start, its
operation can be seen in the arbitrary nature of its boundaries. LOAC predominantly operates
only during periods of actual hostilities. Apart from the provisions of the 1949 Fourth Geneva
Convention and those of Additional Protocol I that deal with the treatment of civilians in
occupied territories, LOAC does not concern itself with the aftermath of conflict. The limitations
arising from the boundaries of LOAC are shared by all victims of armed conflict. However, in
common with those of international law generally, they have a differential impact on men and
women (Gardam and Jarvis 2001).
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They have been drawn up to reflect the experience of combatants and male civilians.
Traditionally, it is during hostilities, or when they are hors de combat, that combatants and
male civilians are most seriously affected by armed conflict. They are most at risk of death,
injury, torture, summary execution, and mistreatment generally during hostilities or when
wounded, sick, or prisoners of war. LOAC provides detailed provisions dealing with all these
situations. Although vulnerable during conflict, women have a distinctive (and in many ways harsher)
post-conflict experience than that of men.
Women, generally speaking, are more likely to initially survive the hostilities, only to
then experience sexual violence, starvation, and other hardships after conflict. They are
particularly vulnerable to the disintegration of societal structures that accompanies armed
conflict due to the endemic discrimination they experience in virtually all societies, which
renders them less able to cope with its challenges (Gardam 1997). Armed conflict exacerbates
existing inequalities experienced globally by women and, moreover, may lead to new forms of
discrimination against them, such as in the allocation of scarce emergency relief in conflict
situations where women are frequently disadvantaged, either deliberately, or because their
needs are not properly understood. There are few provisions of LOAC that reflect this overall
experience of women in times of armed conflict (Gardam 1997).
The so-called special provisions for women in LOAC are a further example of how
gender permeates LOAC. Over the years they have undoubtedly constituted a major obstacle to
addressing the question of whether LOAC is in fact adequate to respond to the situation of
women in times of armed conflict, as they appear to provide “favorable” treatment for women.
Consequently, it remains the generally accepted view that LOAC is a satisfactory regime for
women, as not only does the system require that its general rules be applied without
discrimination, but there are additional “special provisions” of LOAC dealing with the particular
needs of women.
What is overlooked in this assessment is gender (Sjoberg 2006). The so-called general
provisions of LOAC in addressing humanitarian needs in armed conflict assume as their norm a
certain male experience and a population in which there is no systemic gender inequality. As for
the regime of special protection for women during armed conflict, it reveals a picture of women
that is drawn exclusively on the basis of their perceived weakness, both physical and
psychological, and their sexual and reproductive functions. This is the case whether we are
dealing with women civilians or women combatants. Although some forty-two provisions of the
four 1949 Geneva Conventions and their Additional Protocols specifically deal with women and
the effects of armed conflict, nineteen concern women as “expectant mothers,” “maternity
cases,” or “nursing mothers.” The protection of the unborn child and small children is the
rationale for many of these provisions. Women are included in their scope as they are integral to
that protection.
The other major category of special rules relating to women deals with the prevention of
sexual violence, and the protection of the chastity and modesty of women. Many of the
provisions dealing with sexual violence are couched in terms of the honor of women (Lindsey
2001). For example, the Fourth Geneva Convention stipulates that women must be “especially
protected against any attack of [sic] their honor, in particular against rape, enforced prostitution,
or any form of indecent assault.” The honor of both women and men is a pivotal concept in
LOAC. The honor of women, as depicted in LOAC, is constituted solely on the basis of certain
assumed sexual attributes, the characterizing features of which are chastity, modesty, and
weakness. This interpretation of the meaning of honor in relation to women is confirmed in the
original ICRC official Commentaries on the four 1949 Geneva Conventions and their Additional
Protocols, which are regarded as an important source for interpreting these documents and as a
useful aid in clarifying the intended scope and operation of their provisions. Such qualities are
not based on any individualistic, autonomy-based concept belonging to the female person, but
rather are a product of patriarchal honor belonging to the men to whom she is attached. In
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contrast, the honor of men in LOAC has many facets and encompasses both mind and bodily
attributes, as illustrated by the prohibition on the parading of prisoners of war and their
employment in work of a humiliating nature.
On its face, LOAC presents a picture of women that is distorted and far from the reality
of their lives. It not only reinforces stereotypes of women but also fails to take into account in
any way the underlying systemic discrimination that women experience in all societies (Gardam
and Jarvis 2001). LOAC is predicated on the assumption that apart from their roles as mothers and
in the context of sexual violence, women not only have the same experience of armed conflict
as men, but also are able to avail themselves equally of the existing protections offered by
LOAC. This is in fact not the case. The law regulating hostilities also assumes the homogeneity
of the civilian population and that their experience of attacks, for example, has no gender
dimensions (Sjoberg 2006).
Once again, this assumption is not based on factual evidence of the actual experience
of women during hostilities. For example, traditionally women are responsible for the care and
protection of children and the extended family. Consequently, women tend to be less mobile
than men and are often hampered in their efforts to flee from actual or impending armed
attacks. The result is that women are more vulnerable in practice to direct harm from targeting
than might be assumed, underscoring the value of a gendered assessment of LOAC and its
relationship to the actual experiences of women during hostilities.
Having argued that LOAC takes no account of the endemic discrimination that women
experience globally, there are some rare examples in the case of prisoners of war in which
LOAC demands true equality of outcome and recognizes the potential for discrimination against
women. One such case is Article 13 of the Third Geneva Convention, which requires that
women prisoners of war be treated at least as well as men irrespective “of the practices of the
detaining power.” xxx
Feminist Encounters with LOAC. The highly effective feminist campaign to criminalize
and punish sexual violence against women at the international level, which led to major
developments in the interpretation of the existing provisions of LOAC by international criminal
courts, represents a remarkable partnership between scholarship and advocacy (Copelon 1994). Its
results can be seen as an unprecedented success story in which the traditional leading role of
the ICRC in the development of LOAC was taken over by feminists and sympathetic states. This
is not to suggest that the ICRC did not support these initiatives, but in this case it did not play a
leading role.
But these achievements in the criminal punishment of sexual violence against women
in International Criminal Law (ICL) came at a price, including deep and sometimes bitter
debates between feminists xxx. These differences are primarily attributable to fundamental
theoretical disagreements as to how women should be portrayed (Engle 2008; Halley 2009). This is, of
course, a familiar dilemma present in all feminist work. Having discarded one vision of woman
as flawed, a prime item on the feminist agenda has always been how to clothe her replacement.
The dilemma is stark in the case of international law that seeks a universal category of woman.
The campaign regarding sexual violence against women has brought these
disagreements sharply into focus (Grahn-Farley 2010). There is the perception in some quarters that
the process of achieving the developments in ICL has had significant negative consequences.
In particular, not only has the fundamental challenge for feminist international lawyers of
reconciling the complex intersections of race and gender been overshadowed, but also the
vision of women as passive victims in need of protection has been reinforced (Engle 2005; Buss
2007).
Most would agree that lively debate is healthy and productive. Sometimes, however,
deep divisions can play into the hands of those who oppose changes in the status quo. The
internal disarray among feminists over the issue of sexual violence in armed conflict seems to
have opened the door to suggestions that a great deal has been achieved for women, but that in
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the process the experience of men of armed conflict, in particular sexual violence against
them, has been overlooked (Carpenter 2006). This sense of progress for women in terms of LOAC
is misleading. There remains indifference in all quarters, including among feminists themselves,
to the potential benefits that might ensue from developments in the law and its interpretation to
take account of the overall different experience of women in armed conflict beyond sexual
violence.
It is in this situation that the influence of the ICRC is important. The military has little
motivation in improving the protection of women or indeed civilians in general from the impact of
armed conflict. Its approach to LOAC is essentially pragmatic and its task is military victory (US
Department of the Army 2007). Protecting civilians is seen as, if anything, hampering the achievement
of this result, although, xxx, this is not always the case. It thus falls to the ICRC primarily to lead
the way in relation to civilians. That organization, however, has always taken the view that the
law in relation to women is adequate and what is needed is better implementation of its
provisions.
Moreover, a concept of equality that recognizes the insights that feminists have brought
to this idea remains somewhat difficult for the ICRC to accommodate. The institution has
come a long way in recent times and does accept the impact of gender and systemic
discrimination on the way that women experience warfare (Lindsey 2001; ICRC 2016). However, the
demands of its core principle of neutrality appear to prevent it from adopting an approach
designed to recognize and take into account discrimination against women. This is particularly
evident in the role of the ICRC in providing humanitarian assistance to women during times of
armed conflict and its aftermath, but inevitably must flow through to its interpretation of the law
and any suggestions for developments.
As feminists have demonstrated, however, laws that were drawn up in an era that
neither recognized this discrimination nor took account of it when the provisions were adopted
do not qualify as neutral in their impact (Charlesworth 1999). For example, is it so unreasonable in
this day and age to envisage a change in the law or in its interpretation to aspire to the equal
participation of women in the decision-making as to the allocation and distribution of
humanitarian aid during times of armed conflict? Accepting that there may be major obstacles in
the implementation of such a strategy in many states, a provision of LOAC to that effect would
at least provide a basis for such efforts.
It is also worth bearing in mind that much can be achieved through the reinterpretation of
existing provisions of LOAC, rather than undertaking the hazardous path of persuading states to
adopt new law (Gardam 2013). The developments in ICL on sexual violence against women are a
testament to this process. A promising initiative in this context is the ICRC project that
commenced in 2012 to revise the Commentaries on the four 1949 Geneva Conventions and
their Additional Protocols (see ICRC 2016). It is to be expected that the changing attitudes over the
past sixty years within the ICRC itself and among other international institutions to such ideas as
the “modesty” and “honor” of women and other aspects of LOAC will be reflected in all the new
documents.
In the case of LOAC, whatever strategy feminists adopt to achieve change and whatever
the vision of women that emerges from these efforts, it would be wise not to underestimate the
challenge that lies ahead and the impact of systemic power on efforts to achieve change. LOAC
deals with the conduct of war, and women’s voices are particularly muted in the intensely
masculine environment that surrounds decision-making about such issues as national security
and the resort to force. Women may have found a provisional place at the peace-building and
post-conflict reconstruction table, but any meaningful participation in debates centering on
the strategic and tactical issues of the conduct of hostilities continues to elude them.
New Challenges. The majority of the discussion so far has related to humanitarian law
proper, that is, the protection of victims of armed conflict. That has without doubt been the major
focus to date of feminist engagement with LOAC, and one gets the sense that those working in
 The silences in the rules 7

the area are more comfortable in that environment, and particularly so in the narrow area of
sexual violence against women (MacKinnon 2006). This work should continue and hopefully with a
broader focus on addressing the adequacy of LOAC to address the overall experiences of
women in times of armed conflict. At the same time, however, feminists should turn their
attention to that part of LOAC that has been almost completely neglected, namely the legal
provisions that regulate the actual conduct of hostilities. This aspect of LOAC warrants a close
study given the nature of the conflicts that occur in the world today, in which civilians and
women in particular are so frequently at the frontline and are caught up directly in hostilities. It
will not be an easy task. The actual means and methods of conflict are very much the domain of
the military: feminism and that institution have never enjoyed an easy relationship. On the
very few occasions that feminists have engaged with the law governing the conduct of
hostilities, they have criticized the assumption by those applying the law that the protection of
the civilian population is subsidiary to that of the combatant (Kinsella 2005).
This approach is illustrated by the “zero casualties” policy adopted by NATO in the 1999
Kosovo conflict—“casualties” in that case being those of NATO combatants. Such an
assumption has considerable influence on how the fundamental LOAC principle of
proportionality is applied. Proportionality requires a balance to be struck between the
anticipated military advantage of a particular attack and the likely number of incidental civilian
casualties thereof. If the protection of combatants is a priority of those making the calculation, it
will assume more significance in the assessment of the military advantage component of the
equation and the consequent downplay of the risk of collateral (or civilian) casualties. Any
realigning of this balance may serve to increase the protection of civilians during actual
hostilities with a flow-on effect for women.
There is some evidence that in certain circumstances the military may be prepared to
reconsider some aspects of force protection. For example, the approach to
counterinsurgency warfare in the 2007 US Army/Marine Corps Counter Insurgency Field
Manual (COIN) centers on minimizing civilian casualties rather than destroying the enemy, and it
underpinned coalition efforts in both Iraq and Afghanistan (US Department of the Army 2007; Gardam and
Stephens 2014). Such a strategy calls for including an increased assumption of risk by combatants,
among other things, in the assessment of whether a particular attack satisfies the requirements
of proportionality. According to the COIN Manual, its underlying premise is that the exposure of
combatants to increased risk in the short term, although it may lead to more immediate military
casualties, is more likely to result in winning the war. In the case of counterterrorism, military
victory is measured less in terms of insurgent casualties than in a reduction of civilian casualties
and a correlative investment in the legitimacy of the host government. It would be naïve in the
extreme, however, to see this as the start of a brave new world. The rationale of the COIN
strategy is securing military victory in counter-insurgency situations, not the protection of the
civilian population. So there just happened in this case to be a coalescence of interests that may
never be repeated. xxx

Enhancement Activity 1:
1. In what way do armed conflicts worsen gender inequalities?

2. Give manifestations that in the assessments of armed conflicts, the gender dimension is
often overlooked.

3. Differentiate honor of women from honor of men as understood in international law.

 The silences in the rules 8

Enhancement Activity 2: Describe briefly the following terms:

1. Additional Protocol I

2. Additional Protocol II

3. hors de combat

4. law of armed conflict

5. law of Geneva

6. law of the Hague

7. proportionality

8. zero casualties

If you have time, there are supplemental readings from these links:
https://www.icrc.org/en/doc/assets/files/other/icrc_002_0798_women_facing_war.pdf
https://asiafoundation.org/resources/pdfs/GenderConflictinMindanao.pdf
The silences in the rules 9