31st CEDAW Session

Day of General Discussion on the
Proposed General Recommendation on Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women

July 21, 2004

State Obligations During Periods of Armed Conflict

Deepika Udagama*

I. Introduction

Protection of human rights and humanitarian law norms is always brought into sharper relief during periods of armed conflict, whether they are international or non-international in character. States are challenged to the extreme to demonstrate their commitment to the protection of universally recognised inherent rights of individuals and indeed of communities in such trying circumstances.

Because of the very divisive nature of war, one of the first casualties of armed conflict happens to be the principle of non-discrimination. Today, most of the armed conflicts raging around the world happen to be fought within States than between or among States. The conflict lines have been drawn more often than not along ethnic lines. Religion is often superimposed on ethnicity, if there is such a clear-cut distinction. In the ethno-nationalistic contexts in which such conflicts occur, gender violence has taken extreme forms. Vilification of the “honour” of the women of the enemy is still a tool of warfare as the examples from the Former Yugoslavia point out. It is also the case that even where intra-community relations go, women like other marginalised groups in society, find themselves further marginalised, for example, as war widows, internally displaced persons (IDPs) or refugees.

In this intervention IWRAW Asia Pacific proposes to set out the need to integrate state obligations during armed conflicts into the general recommendation on Article 2 of CEDAW.

II. Forms of Gender or Sex Based Discrimination During and After Periods of Armed Conflict

Reports from conflict zones around the world point to gross violations of principles of both international human rights and humanitarian law norms that have taken the form of gender or sex based violence. It is widely reported that such acts are perpetrated by both State as well as non-State actors, and in some instances even by international peace-keeping forces.[1]

Violations during the conflict

The former UN Special Rapporteur on Violence Against Women, Radhika Coomaraswamy, has reported on the types of violations that have occurred in war zones such as Sierra Leon, Rwanda, Afghanistan and East Timor.[2] More specifically, she has reported on the incidence of military sexual slavery as a form of violence against women during armed conflict.[3]

a) At the hands of the “enemy”

The often-reported forms of violations take the form of rape, sexual assault, forced prostitution, forced marriages, forced impregnation, sexual slavery and trafficking for purposes of forced prostitution. Generally, those who are targeted are women of the “other side”.

b) Within the community – flag bearers of culture

It is also the case, however, that due to heightened ethnic consciousness during conflicts men tend to project women as the flag bearers of cultural and ethnic “purity”. As in the case of the Taleban government in Afghanistan, women are subjected to, more rigorously than before, strict cultural regimentation that often relegate them to serfdom devoid of human dignity. The rigours of traditional norms based on patriarchy appear to be further accentuated. As a result, women tend to suffer at the hands not only of the “enemy” but also at the hands of one’s own kind.

c) As IDPs and refugees

Women and children generally constitute the largest number among those internally displaced or rendered refugees due to armed conflict. The plight of IDPs is particularly problematic. While conflicts generate more IDPs than refugees, there is no specialised international agency to provide protection to IDPs. However, the Deng Principles relating to the protection of IDPs formulated by the UN Secretary General’s Special Representative on IDPs today establishes strong benchmarks on the subject. The principle of non-discrimination in the protection and resettlement of IDPs is of paramount importance.

The realities on the ground require strong State action vis-à-vis IDP and refugee women. As pointed out above, numerically women and children constitute the bulk of displaced persons due to armed conflict. The violations women undergo in such circumstances, relates not only to physical safety but also to issues relating to social and economic rights such as access to food, water, shelter and healthcare.

d) Violations of economic, social and cultural rights

While the spectre of sexual assault against women does loom large in the context of armed conflict, equally grave are issues pertaining to social, economic and cultural rights. The most common forms relate to problems in accessing food, water, shelter, healthcare and education. Discriminatory patterns based on gender that one can observe in accessing goods and services during peace time seem to become worse when the going gets rough. Women face these violations as female heads of households/war widows, IDPs and refugees.

Attention must be paid to gender discrimination in the provision of basic needs, and also in the provision of credit, land and housing in the resettlement process.

As the CEDAW Convention recognises ab initio the interdependency and indivisibility of human rights, attention must be paid to the grave threats posed to the enjoyment of economic, social and cultural rights by women during periods of armed conflict.

e) Exclusion from participation/representation

While some conflicts do witness the engagement of female combatants, it is well recognised that women do not enjoy the right to participate in the resettlement and reconstruction processes. Many peace processes, with a few notable exceptions, did not witness women’s participation in the formal peace processes that saw an end to conflict, although women’s NGOs had played a major role in agitating for peace. The recognition of this conspiracy of exclusion paved the way for the adoption by the Security Council of Resolution 1325 (2000) of 31 October 2000 on the role of women in the peace process.

III. Impunity

Impunity remains a major obstacle to the promotion and protection of human rights and humanitarian law. Most States show a great degree of reluctance to prosecute officials or State supporters against whom there are allegations of serious crimes. While international war crimes tribunals have made inroads into impunity, only a few countries are covered by such tribunals. The International Criminal Court holds out much promise, but a number of States has yet to ratify the Rome Statute and also its jurisdiction complements national jurisdiction over the defined crimes against humanity, genocide and war crimes.

First, it is important that impunity is dealt with effectively by States. It is equally important then to ensure that those mechanisms recognise sexual crimes perpetrated during armed conflict. While traditional humanitarian law did not recognise sexual crimes as being grave breaches, today, jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and Rwanda have made dramatic strides in the recognition of sexual crimes as grave breaches of the Geneva Conventions, war crimes, crimes against humanity and genocide.

IV. Recommendations

It must be stated at the outset that IWRAW Asia Pacific recognises the intersection between international human rights law and international humanitarian law and view the two regimes as complementing each other during periods of armed conflict. The following recommendations are made on that basis.

i) Recognising the sex and gender based discrimination that takes place during armed conflict, most notably in the form of sexual violence, States Parties to CEDAW are obliged to ensure that all possible measure are taken to prevent the occurrence of such acts perpetrated by its officials and to punish the same. General Recommendation No.19 of CEDAW already recognises (in relation to Article 6) that –
wars, armed conflicts and the occupation of territories often lead to increased prostitution, trafficking in women and sexual assault of women, which require specific protective and punitive measures.

Such measures must include:

a. The enactment of laws criminalising sexual violence during armed conflict taking place in the territory of the State Party whether committed in the course of official duty or not. In particular, military codes shall incorporate the recognition and punishment of such crimes. Definitions of such crimes must not be couched in narrower terms than applicable international legal norms.

b. States Parties must ensure that adequate judicial mechanisms, including military tribunals, are put in place to ensure prosecution and punishment of those against whom there is a reasonable suspicion that such crimes have been committed by them.

c. States parties must provide adequate training and education to their armed forces and military police so that they recognise and avoid committing sexual crimes during armed conflict. Similarly, training of judges advocate and civilian prosecutors and judges to sensitise them to issues arising in cases of sexual crimes during armed conflict must be provided.

d. It is important as per Article 2 (e) to take all appropriate measures against non-state actors who may have perpetrated sexual crimes during armed conflict.

e. States Parties shall also be obliged to assist any international tribunal that has the jurisdiction to try persons for sexual crimes during armed conflict whether in relation to crimes that have occurred on its territory or in relation to a national who may be suspected of having committed such a crime extra-territorially.

i) Recognising also acute forms of violations of economic social and cultural rights, in particular the acute forms of discrimination women experience in the enjoyment of economic, social and cultural rights during armed conflicts, States Parties are obliged to discharge “core minimum obligations” regarding those rights as stipulated by the UN Committee on Economic, Social and Cultural Rights. CEDAW has a supervisory role in ensuring that the obligation to respect, protect and fulfill those rights is carried out without sex or gender discrimination. CEDAW should, therefore, pay particular attention to issues such as food and medicine embargoes during armed conflict. Such embargoes have always had a disproportionately negative impact on women.

ii) States Parties are also obliged to ensure that the right of women to participate in formal peace processes and policy making processes with regard to resettlement, rehabilitation and reconciliation be facilitated proactively.

Notes
* The author made this presentation on behalf of IWRAW Asia Pacific.

[1] See Report of the Special Rapporteur on violence against women, its causes and consequences on “Violence against women perpetrated and/or condoned by the State during time of armed conflict (1997-2000)” at pp.14-21
[2] See respectively E/CN.4/2002/83/Add.2, E/CN.4/1998/54/Add.1, E/CN.4/200/68/Add.4, E/CN.4/1999/68/Add.3
[3] See E/CN.4/1996/53 /Add.1

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