War, Law, Terror, Nothing New for Women
Gardam, Judith, The Australian Feminist Law Journal
The feminist voice in International Humanitarian Law (IHL), that part of international law that regulates the conduct of armed conflict, has always been relatively muted. This contrasts with the vigorous contribution of feminist scholars in the area of human rights law which has significantly influenced the development and application ofthat regime. Looking back over the years since the initial feminist engagement with IHL, I am disappointed as to how the topic of IHL and women has been avoided by feminist scholars, apart from a seemingly endless focus on sexual violence.1 Admittedly these critiques have contributed to some important advances in the area of international criminal law.2 However, international criminal law deals with enforcement of IHL and surely we should be thinking in terms of trying to prevent these situations that lead to international criminal prosecutions from arising in the first place. There are two possible strategies here, first development of the law and secondly implementation of the existing rules. The focus of this paper is on the latter, that is, respect for the norms of IHL.3
There are many pitfalls to be encountered in engaging with this regime. It contains the quintessential gender male - the warrior, and his essential foil, the weak and powerless woman.4 The female subject of IHL is assumed to have certain 'natural' characteristics, particularly modesty and weakness that help to constitute her honour. All the provisions of IHL dealing with her are based on these two characteristics and the way the regime is interpreted, disseminated and applied reinforces these limiting and destructive gender stereotypes.5 Consequently in arguing for increased respect for the existing, albeit inadequate, rules protecting women one runs the risk of being classified as an old school feminist stuck in the era of regarding women solely as victims rather than according them full agency.6 But engage we must, as in certain situations IHL is the only applicable law and if individuals can come within its scope and access its protections, it has real potential to mitigate the horrors of warfare.
International human rights law is also of increasing importance in the context of armed conflict and has fundamentally influenced the direction and development of IHL.7 Consequently there is now a great deal of overlap between the two regimes and in many circumstances they work to reinforce each other.8 Nevertheless, IHL is the regime specifically designed to deal with the particular circumstances and societal conditions that arise during periods of armed conflict.9 If individuals can fit themselves within one of its recognised categories, such as that of civilian or combatant, it has the potential to be a very effective regime and to achieve outcomes that are not available under the human rights system.10 For example, the IHL law of occupation has a transformative function that authorises and arguably mandates changes to the political and legal framework of the occupied State.11 Some of these may include measures to protect the human rights of women. There is no such parallel function in human rights law. Therefore, IHL warrants sustained feminist engagement.
Against that somewhat pessimistic note, in this paper I continue in a small way the task of uncovering the manner in which discrimination against women manifests itself in the application of IHL.12 I reflect on how the issues that have dominated IHL in the era of the so-called cwar on terror', as illustrated by the 2001 Afghan and 2003 Iraqi invasions, have been shaped by gender considerations.13 I search for explanations as to why so little attention has been paid to the experiences of women during such times. In considering why certain issues have dominated the debate about IHL in the context of the war on terror, I am particularly interested in the extent to which arguments in relation to 'culture' determine the practical outcome of that debate on the ground for men and women. …