Whacking Unarmed Women: Gaps in the Law of Armed Conflict
Noone, Michael F., Duke Journal of Gender Law & Policy
When from 'ouse to 'ouse you're 'unting you must always work in pairs--It 'alves the gain, but safer you will find--For a single man gets bottled on them twisty-wisty stairs An' a woman comes and clobs 'im from be'ind.
Rudyard Kipling, Loot (1)
In recent years, legal commentators have begun to write on women in war: usually as the civilian victims of belligerent forces, (2) sometimes as military victims of discrimination within their own armed forces. (3) Very little has been written about women as belligerents. (4) What has been written does not focus on the legal problems conventional forces face when women are "unprivileged belligerents" (5) who fail to comply with law of war requirements for combatant status. (6) These problems can become acute when conventional forces are engaged in "Small Wars" (7) where unarmed women often serve as auxiliaries to their unconventional opponents. Although legal sources have been remarkably silent about these problems, a number of examples are available. I have selected two involving unarmed women: one from Northern Ireland involving the British Army, and one from Somalia involving the American Army.
SCENARIO 1: AIDING AND ABETTING IN NORTHERN IRELAND
In August 1969, riots broke out in Londonderry, Northern Ireland when Protestant Apprentice Boys clashed with the Catholic residents of the city's Bog-side neighborhood. When the police were unable to restrain the rioters, the Army was called in to maintain order and remained on the scene as political violence spread to Belfast and to the rest of the province. Although the Army sought to remain neutral, subsequent internment of suspected supporters of the Catholic Nationalist community's Provisional IRA, without the concurrent internment of Protestant Unionist Red Hand commandos, increased tension. "Bloody Sunday" (January 30, 1972), when Army paratroopers fired on an illegal parade, killing 13 people (7 of them under the age of 19) and injuring another 13, effectively alienated Nationalist support for the Army. An Irish journalist described the consequences:
It was not only gunmen with whom the soldiers had to deal. Women, too, could be a major problem. In most areas their early warning system for the approach of any stranger meant a general stand-to with the banging of dustbin [trash can] lids and the blowing of whistles. Hundreds of women could gather very fast and become a dangerous menace to a small patrol.... ... Of course the soldiers also got caught in `public relations ambushes'--the sort of `come on' calls which would lead them blundering into old ladies or invalids in wheelchairs. (8)
Did these unarmed women, acting in support of groups seeking to destabilize the government, constitute unprivileged belligerents who could claim some protection from international law? Certainly they could not claim combatancy status (nor could their imprisoned IRA allies who sought but failed to achieve POW status). If such incidents took place where the British Army could claim the status of an Occupying Power, international law would provide for punishment by internment or imprisonment, keeping in mind "that local inhabitants owe no allegiance to the occupant, and any punishment must be proportionate to the offence." (9) If the women were to face criminal sanctions, they would presumably be charged with some minor offense--disturbing the peace, or interference with the police in the performance of their duties--and would be punished accordingly. The "Yellow Card" that each British soldier carried, permitting his use of deadly force, would not apply in such circumstances. (10) Similar Yellow Card provisions limiting the use of deadly force to self-defense were to become part of U.S. military doctrine in operations other than war. (11)
The United States military's Standing Rules of Engagement for U.S. Forces define national, collective, unit, and individual self-defense. …