With the adoption of the new Arms Trade Treaty and the G8 Declaration on Preventing Sexual Violence in Conflict, the international community has taken major steps towards creating an international framework of deterrence for sexual and gender-based violence in armed conflict. Even more striking is that collectively, these international efforts mark a tipping point in the lifespan of UN Security Council Resolution 1325 on Women, Peace and Security (UNSCR 1325), reflecting the precedence of new norms and “soft-laws” that connect the women, peace, and security agenda to international humanitarian law. Applying UNSCR 1325 and a gender perspective to international humanitarian law (IHL) represents a new and innovative area of practice with the promise of identifying new strategies and entry points in the protection of civilians in international and non-international armed conflict.

Unlike treaties and international policy statements in the past, both the new Arms Trade Treaty and the G8 Declaration make direct reference to UNSCR 1325, the gendered dimensions of armed conflict, and how this impacts the execution and interpretation of international humanitarian law. While the Geneva Conventions and Additional Protocols have always referenced the fact that international humanitarian law is based on “equality of protection,” it is now widely accepted that situations of armed conflict will inevitably impact men and women unequally. These recent developments call for understanding how the different experiences of men and women in armed conflict impact state’s obligations outlined in the laws of war.

Key Conclusions

While both the Arms Trade Treaty and the G8 Declaration can be criticized for being weak in holding member states accountable for preventing and prosecuting acts of gender-based violence, the adoption of these measures is an advancement for UNSCR 1325 because it crystalizes the relationship between the gendered dimensions of armed conflict and international humanitarian law in three key areas: prevention of violations of IHL, means of warfare, and prosecution of grave breaches.

• Prevention: Ignorance of the law significantly deters efforts to regulate the behavior of parties to a conflict. Therefore, state parties to the Geneva Conventions and their Additional Protocols are obligated to teach and train military forces in IHL. The G8 Declaration which states “the training of national and international police and security will…receive appropriate training to approach and deal effectively with rape and sexual violence,” demonstrates increasing respect for and political will to comply with the provisions of IHL. Similarly, UNSCR 1325 calls for gender training of international peacekeeping forces.

• Means of Warfare: Article 36 of the First Additional Protocol to the Geneva Convention requires the review of new weapons, and means and methods of warfare. In a groundbreaking move, article (7) of the Arms Trade Treaty requires sellers of arms to consider how their weapons will be used and to make that information public in a “risk assessment process.” The treaty specifically calls for sales to be evaluated on whether the weapons will be used to break humanitarian law, foment genocide or war crimes—including the systemic use of sexual violence against women and children in armed conflict. The full and equal participation of women and women’s organizations in this review process is mandated by UNSCR 1325’s call for the inclusion of women in matters of international security and peace.

• Prosecution: The G8 Declaration’s statement that “rape and sexual violence in conflict are going to be recognized as a breach of the Geneva Convention,” is an expression of newly found political will to address the issue of sexual violence in conflict. Jurisprudence from the international criminal ad hoc tribunals for the former Yugoslavia and Rwanda already confirmed that rape and other forms of sexual violence constitute a grave breach of the Geneva Conventions, and are considered war crimes, crimes against humanity, and genocide in certain circumstances. In addition, customary IHL rule 93 states that rape and other forms of sexual violence are expressly prohibited.

However, the fact that the G8 Declaration so clearly reaffirms that rape is a grave breach of IHL at a high political level, and requests specific training and funding for prosecution of these crimes, is new and promising. The G8 Declaration states, “Preventing sexual violence in armed conflict is a matter of maintaining international security in keeping with UN Security Council Resolution 1820.”

Analysis

Spring 2013 has witnessed the convergence of two perspectives on the obligation of states to protect civilians from gender-based violence in armed conflict: international humanitarian law, and UN Security Council Resolution 1325. International humanitarian law is a body of law that provides protection for those directly affected by armed conflict regardless of their sex. On the other hand, the UN Security Council—the highest security decision-making body in the world—stated in Resolution 1325 on Women, Peace and Security that threats to individuals (women and girls) constitute a threat to international peace and security.

It also stated that international peace and security is intrinsically linked to equality between men and women. The “equality between men and women” that UNSCR 1325 speaks of is different than the concept of formal equality expressed throughout the Geneva Conventions and their 1977 Additional Protocols. This is because international humanitarian law requires that protections should be provided “without any adverse distinction founded on sex …” while UNSCR 1325 explicitly calls for attention to the way men/women and boys/girls are differently affected by their needs, status, and priorities in situations of armed conflict. In short, UNSCR 1325 calls for an understanding of the gendered dimensions of matters of international security, whereas the laws of war alone do not.

New practices arise from this new norm. For example, whereas Article 36 of the First Additional Protocol to the Geneva Convention requires the review of new weapons and/or means and methods of warfare, gender differences in the use of weapons have not been taken into account. Article (7) of Arms Trade Treaty has been criticized as weak because there is a risk that an exporting state can determine that some unidentified interest is more important than preventing violations of IHL in a “risk assessment process.”

However, the fact that sellers of arms must now consider how their weapons, ammunition, parts, or components will be used by or against men, women, and children, and make that information public is certainly a tremendous step forward for the women, peace and security agenda. This is because the treaty specifically calls for sales to be evaluated on whether the weapons will be used to break humanitarian law, foment genocide or war crimes—including the systemic use of sexual violence against women and children in armed conflict. When ratified, states shall not be permitted to authorize transfers if there is a risk of the weapons being used to commit acts of sexual and gender-based violence, thus violating international humanitarian law.

Conclusion

These new practices raise new questions. Who will be performing the risk assessment, and how will a gender perspective be included in weapons reviews of tanks, armored combat vehicles, large-caliber weapons, combat aircraft, attack helicopters, warships, missiles, and launchers, small arms and light weapons? If the women, peace and security agenda is to truly make a lasting impact on the laws of war, women and women’s organizations must be consulted on a regular basis in the risk assessment process of these weapons and ammunition exports.

The Arms Trade Treaty is years away from implementation and needs to be ratified by 50 nations before it will go into effect. The G8 Declaration, while a significant expression of political will, does not guarantee mobilization of resources to prevent and respond to sexual violence in armed conflict. Unfortunately, the gap between good intentions embodied in these efforts and the reality of human suffering due to sexual violence in armed conflict is still wide. However, if the inclusion of women in decision making on matters of international security and peace is taken seriously, UNSCR 1325 can help states fulfill their obligations, and narrow this gap.

Sahana Dharmapuri is a Non-Resident Fellow at the Carr Center for Human Rights Policy at the Harvard Kennedy School of Government.

A family flees conflict in Masisi, Democratic Republic of the Congo, September 2007 Photo credit: Julien Harneis/Flickr