Authored By: Suyash Goel
Abstract
This paper is presented on behalf of the Government of Belgium, through its legal advisor in the area of women in armed conflict. It is observed that the law in this area has recently been developed and that Belgium is at the forefront of international efforts to progress the protection of women’s rights in this area. This position paper thus presents an overview of the background to this area of international law, a summary of past international initiatives specific to women’s rights within armed conflict, an overview of Belgium’s policy in this area and finally will present 5 recommendations to strengthen international legal protections in this area.
Topic area and background
Women increasingly bear the burden of armed conflict. While a great deal of suffering exists within the context of armed conflict, such situations are largely governed by international humanitarian law, or the laws of armed conflict (LOAC). In the realm of women’s rights however, it is not clear that working with the highly masculine structures characterising international law making has been to women’s advantage over the decades. Historically the LOAC have been regarded as deficient in adequately addressing the experiences of women during armed conflict. Conflicts affect both men and women, but women face additional issues during wars and afterwards that men do not, including pervasive sexual violence, reproductive violence, forced impregnation and force abortion. Women and children experience internal displacement and make up the largest proportion of refugee populations across armed conflicts.
More recently therefore the jurisprudence of the international criminal tribunals and courts have developed the definition of war crimes to incorporate sexual crimes committed against women during conflict situations. The International Criminal Tribunals for Yugoslavia and Rwanda (ICTY/ICTR) and the International Criminal Court (ICC) have all developed the law on offering women’s rights protection in territories affected by conflict. The Jurisprudence of the Special Court for Sierra Leone (SCSL) has recognised that sexual slavery and the way in which it intersects with forced marriage, rape and forced labour as war crime. The SCSL also found rape to be a tool of conflict, stating that “[t]he deliberate and concerted campaign to rape women constitutes and extension of the battlefield to women’s bodies”. Furthermore, systematic rape within war has also been recognised as a crime against humanity, and even an act of genocide. The Statute of the ICC also recognises that “sexual slavery” is both a crime against humanity under Article 7(1)(g) and a war crime under Article 8(2)(e)(vi).
However, the focus on violence – in particularly sexual violence – tends to obscure the important aspects of women’s experience of armed conflict that is frequently ignored. Women’s experience as refugees, but also the difficulties women experience in fleeing from conflict areas when pregnant, responsible for children or restrained by particular social mores which inhibit their presence in public spaces. Ongoing existing discrimination against women is exacerbated during armed conflict, which diminishes women’s rights to housing, land and property. There are also multiple perpetrators to such rights violations including non-state armed groups and militias, government forces, private military contractors, peacekeepers and civilians. Civilians are exposed to many forms of violence in conflict and face economic and social hardships; women without male relatives also face particular hardships in certain countries.
Past International Actions
Thus while formerly there was a lack of engagement within international law in relation to the status of women and their rights in conflict situations, the development of legal norms in recent years has offered increasing promise. The UN Security Council (UNSC) inaugurated its Women, Peace and Security (WPS) agenda in 2000, in Resolution 1325 to address the specific rights protections afforded to women within armed conflict and to recognise the particular impact conflict has on women, as well as their lack of involvement in conflict resolution processes. Resolution 1325 expresses the willingness to ensure that UNSC missions take account of gender and women’s rights in concluding through consultations with local and international women’s groups.
On 30 October 2013 the monitoring body (the Committee) of the Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW) adopted General Recommendation No.30 (GR30) on the rights of women in conflict prevention, conflict and post-conflict situations. At the same time the UN Security Council (UNSC) adopted Resolution 2122 on women’s leadership in peacebuilding. This was its eight resolution under the Women, Peace and Security (WPS) Agenda. In order to preserve women’s rights in territories affected by conflict, thus the UN bodies have sought to establish linkages between protections under LOAC and international human rights law, recognising the notion that human rights cease to operate in conflict situations is no longer relevant in today’s pervasive conflict situations.
Belgium’s Policy
In the past few years Belgium has been at the forefront of the development of a response to the protection of rights of women within armed conflict. The Belgian Government most recent (third) National Action Plan (NAP) on the UNs Women, Peace and Security (WPS) Agenda for the period 2017-2021 (NAPIII). Belgium was recently involved I the military intervention against ISIS in Syria. In adopting its NAP, Belgium reaffirms its commitment to improve the position of women with respect to the prevention and resolution of conflict situations and to improve it’s the protection of women and girls throughout the whole transition from conflict to resolution. At the 23rd April 2019 high-level WPS Commitments even, Belgium committed to working on a new NAP in advance of October 2020.
The NAPIII supports the UN objectives in promoting the implementation of the international normative framework on the WPS Agenda. Belgium seeks to integrate a gender dimension into its actions on conflict, peace and security, to promote women’s participation in processes concerning conflict, peace and security and to ensure that NAPIII is implemented and monitored. Belgium will ensure that consultations with civil society will take place at least biannually. The NAPIII includes examples of supporting meaningful participation as an action item within the plan; “activities to prevent conflict need to begin at an early stage with awareness-raising of the population as a whole and continue with identifying practical prevention steps, involving as many in the population as possible”.
As part of NAPIII Belgium has committed to hosting a meeting of consultation with NGOs and civil society organisation on progress and implementation of NAPIII. A mid-term review event was held in cooperation with Platform 1325 on the 13th November 2019; attended by more than 80 people from government, Parliament, advisory organs and civil society. On 25th October Belgium coordinated an Arria-formula meeting in the UNSC on the topic of the WPS Agenda and the trafficking agenda, with a briefing from the Special Rapporteur on the fight against Trafficking, Maria Grazia Giammarioaro. A breakthrough on the development of the notion of gender based violence in conflict was made in that several members of the UNSC recognised trafficking as a form of gender-based sexual violence and a tactic of war.
Possible Solutions
Recommendation 1: Key gaps in protection have been identified through international law, in particular through the LOAC as it relates to women in territories affected by conflict. Although the UNSC have no passed a total of eight resolutions in relation to the WPS Agenda, the UNSC rarely act to proactively prevent conflict and has instead focused largely on protection concerns. The UNSC’s conflict prevention role can be used to encourage women’s participation both as a pillar and a contributing factors in order to significantly enhance conflict prevention. Thus the UNSC is recommended to work in closer connection with the CEDAW Committee in bolstering its efforts towards conflict prevention. It is important that there is cross-regime dialogue in order to make progress on areas for practical enforcement and implementation of concerns and rights of women in conflict.
Recommendation 2: Questions can also be raised about how the development of legal norms in conflict situations can attract legal accountability. These concerns appear to emerge from the ambiguous legal status attached to the normative developments in question. While the CEDAW Committee operates as a group of independent experts in women’s human rights who are responsible for treaty monitoring and interpretation, their General Recommendations are non-binding and States frequently fail to adopt their views. The UNSC authority to engage in law-making activity is also highly contested. Thus there are opportunities for improved complementarity in the actions of the CEDAW Committee, as a UN human rights institution and the UNSC with its ability to create resolutions that are binding on all UN Member States. The CEDAW Committee has challenged UNSC to use their membership of the UNSC to implement Convention obligations; thus to be on notice of their human rights obligations when acting as members of the UNSC, and to avoid treating the two as discrete activities.
Recommendation 3: To date most of the UNSC Resolutions have focused on areas of sexual violence and other protection issues in conflict. Actions therefore should diversify in order to recognise the much wider impact of conflict upon women and their children, in particular the experience of women as refugees and protection for economic and social hardships. Thus the broad understanding of conflict adopted by CEDAW, which includes protracted and low intensity civil strife, ethnic and communal violence and States of emergency, can also be adopted by the UNSC, in order to broaden out the applications of the WPS resolutions.
Recommendation 4: Improvements in the Belgian policy could include specific referencing to actions for disarmament and arms control. Such actions can be achieved in conjunction with increased opportunities for the UNSC to engage in the promotion of a conflict prevention agenda. Monitoring mechanisms can be introduced which will assess the impact of arms proliferation upon sexual and gender-based violence.
Recommendation 5: The Belgian NAPIII at present has no specific framework for the monitoring of the implementation of the Plan, not does it present a timeline or enumerate any particular spending commitments to the objectives. Although it stipulates specific goals, lines of action and monitoring instruments, the commitments are unspecific and require undertaking existing reporting requirements to the CEDAW Committee and Human Rights Council (HRC). Thus the development of a specific framework that focuses on the WPS Agenda would focus efforts in this area.
Summary
Women are subjected to significant vulnerabilities during armed conflict, while the current WPS Agenda within the UNSC and human rights based efforts in the CEDAW Committee need to operate to broaden rights protection for women in territories affected by armed conflict. Belgium has been at the forefront of international efforts to promote dialogue between civil society and government on this agenda. The increased participation of women in conflict resolution is seen as a key mechanism through which women’s rights protections can be advanced in future.
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