Published online by Cambridge University Press: 12 April 2010
Having established that massive human rights violations in armed conflict constitute a threat to peace and that women are the most severely affected by the scourge of war, the Security Council has since 1999 adopted a number of resolutions intended specifically for this group. These instruments contribute to the development of humanitarian law applicable to women and acknowledge the value of active participation by women in peace efforts. The following article first analyses the foundations on which the Council has been able to assume responsibility for protecting women in situations of armed conflict, and then considers the actual protection it provides. It concludes that the Council has had varying success in this role, pointing out that the thematic and declaratory resolutions on which it is largely based are not binding and therefore, they are relatively effective only as regards their provisions committing United Nations bodies. The author proposes that the Council's role could be better accomplished through situational resolutions than through resolutions declaratory of international law.
1 Preamble to the Charter of the United Nations, signed on 26 June 1945 in San Francisco.
3 During World War II, women accounted for some 8% of all Soviet armed forces. See Françoise Krill, ‘The protection of women in international humanitarian law’, International Review of the Red Cross, No. 249, 1985, pp. 337–363, at p. 350.
4 Article 16.
5 Article 2.
6 Article 3.
7 Article 6(5).
8 Article 23(2).
9 Articles 2, 4(1), 24(1) and 26.
10 Adopted and opened for signature, ratification and accession by General Assembly Resolution 34/180, 18 December 1979. Entry into force: 3 September 1981, in accordance with Article 27.1.
11 Granted more authority by Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, adopted by General Assembly Resolution 54/4, 6 October 1999. See also Sabine Bouet-Devrière, ‘La protection universelle des droits de la femme: vers une efficacité accrue du droit positif international? (Analyse prospective des dispositions du Protocole facultatif à la Convention sur l'élimination de toutes les formes de discrimination à l'égard des femmes)', Revue trimestrielle des droits de l'Homme, No. 7, 2000, pp. 453–477.
12 ‘Gender equality is yet to be achieved in most states, where it is deemed contrary to the expression of national sovereignty. In such cases, “traditional” mechanisms for the universal protection of human rights reveal the limits of international law in that domain’ (ICRC translation of ‘la réalisation de l'égalité entre les sexes demeure inachevée dans une majorité d'États où elle se heurte aux manifestations de la souveraineté nationale, face auxquelles les mécanismes “traditionnels” de protection universelle des droits de la personne humaine révèlent les limites du droit international dans ce domaine'). See Bouet-Devrière, above note 11, p. 454.
13 Such as battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation.
14 Such as rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution.
15 Declaration on the Elimination of Violence against Women, General Assembly of the United Nations, 85th plenary meeting, A/RES/48/104, 20 December 1993, Article 2. For an example of violence perpetrated or condoned by the state, see Inter-American Commission on Human Rights, ‘The situation of the rights of women in Ciudad Juárez, Mexico: The right to be free from violence and discrimination’, OEA/Ser.L/V/II.117, doc. 44 (7 March 2003); see also William Paul Simmons, ‘Remedies for the women of Ciudad Juárez through the Inter-American Court of Human Rights’, Northwestern University Journal of International Human Rights, Vol. 4, Issue 3, Spring 2006, pp. 492–517.
16 Opened for signature and ratification by General Assembly Resolution 1763 A (XVII), 7 November 1962. Entry into force: 9 December 1964, in accordance with Article 6.
17 Adopted by General Assembly Resolution 2018 (XX), 1 November 1965.
18 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, approved by General Assembly Resolution 317 (IV), 2 December 1949. Entry into force: 25 July 1951, in accordance with Article 24.
19 International Agreement of 18 May 1904 for the Suppression of the White Slave Traffic, as amended by the Protocol approved by the General Assembly of the United Nations on 3 December 1948; International Convention of 4 May 1910 for the Suppression of the White Slave Traffic, as amended by the above-mentioned Protocol; International Convention of 30 September 1921 for the Suppression of the Traffic in Women and Children, as amended by the Protocol approved by the General Assembly of the United Nations on 20 October 1947; and International Convention of 11 October 1933 for the Suppression of the Traffic in Women of Full Age, as amended by the above-mentioned Protocol.
20 A US report from 2005 states that of the 600,000 to 800,000 persons trafficked across international borders each year, the majority are women and children. See US Department of State, Trafficking in Persons Report, June 2005, available at http://www.state.gov/documents/organization/47255.pdf (last visited 2 February 2010); see also Brian Parsons, ‘Significant steps or empty rhetoric? Current efforts by the United States to combat sexual trafficking near military bases’, Northwestern University Journal of International Human Rights, Vol. 4, issue 3, Spring 2006, pp. 567–589. According to the International Organization for Migration, over 500,000 women are victims of trafficking in Europe. See Rathgeber, Corene, ‘The victimization of women through human trafficking: An aftermath of war?’, European Journal of Crime, Criminal Law and Criminal Justice, Vol. 10, Nos 2–3, 2002, p. 152CrossRefGoogle Scholar.
21 Protocol Additional to the UN Convention against Transnational Organized Crime and Aimed at Preventing, Suppressing and Punishing Trafficking in Persons, Especially Women and Children, 2000. There is a close link between the phenomenon of trafficking in persons becoming more complex (particularly in women and children) and armed conflict. See C. Rathgeber, above note 20.
22 Declaration on the Protection of Women and Children in Emergency and Armed Conflict, proclaimed by General Assembly Resolution 3318 (XXIX), 14 December 1974.
25 Gardam, Judith, ‘Women, human rights and international humanitarian law’, International Review of the Red Cross, No. 324, 1998, at p. 423Google Scholar.
26 International Military Tribunal for the Far East (IMTFE) Charter, Article 5(b).
29 Commission on Human Rights, Contemporary Forms of Slavery: systematic rape, sexual slavery and slavery-like practices during armed conflict, Final report submitted by Ms Gay J. McDougall, Special Rapporteur, Appendix: An analysis of the legal liability of the Government of Japan for ‘comfort women stations’ established during the Second World War, UN Doc E/CN.4/Sub.2/1998/13, 22 June 1998, available at http://www.unhchr.ch/huridocda/huridoca.nsf/0/3d25270b5fa3ea998025665f0032f220?OpenDocument (last visited 2 February 2009).
32 J. Gardam, above note 25.
33 Fiona de Londras, ‘Prosecuting sexual violence in the ad hoc International Criminal Tribunals for Rwanda and the former Yugoslavia’, University College Dublin Working Papers in Law, Criminology and Socio-Legal Studies Research Paper, No. 06, 2009, p. 2.
34 Article 3 states that ‘Women shall be treated with all consideration due to their sex.’ Article 4 states that ‘Differences of treatment between prisoners are permissible only if such differences are based on the military rank, the state of physical or mental health, the professional abilities, or the sex of those who benefit from them.’ See also F. Krill, above note 3.
35 J. Gardam, above note 25.
36 There are, however, some provisions that state that women shall be treated without any adverse distinction, in particular for reasons of sex, and that they shall in all cases benefit from treatment as favourable as that granted to men. See Article 12 of the First and Second Conventions; Article 16 of the Third Convention; Article 27 of the Fourth Convention; Article 75 of Additional Protocol I; Article 4 of Additional Protocol II; and Article 14 of the Third Convention. It can therefore be concluded that women are entitled to all the rights of the conventions. For more on this issue, see F. Krill, above note 3.
37 Jean de Preux, ‘Special protection of women and children’, International Review of the Red Cross, No. 248, 1985, pp. 292–302.
38 J. Gardam, above note 25, p. 424; see also Vesna Nikolić-Ristanović, ‘War and post-war victimization of women’, European Journal of Crime, Criminal Law and Criminal Justice, Vol. 10, Nos 2–3, 2002, p. 141; and Charlotte Lindsey, ‘Women and war: An overview’, International Review of the Red Cross, No. 839, 2000, pp. 561–579.
39 The following offences are listed as grave breaches: ‘wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’.
40 GC I, Art. 49; GC II Art. 50; GC III, Art. 129; GC IV, Art. 146.
41 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted 8 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts. Entry into force: 7 December 1978, in accordance with Article 95.
42 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), adopted 8 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts. Entry into force: 7 December 1978, in accordance with Article 23.
43 Report of the Special Rapporteur on violence against women, its causes and consequences, Ms Radhika Coomaraswamy, UN document E/CN.4/1998/54, 26 January 1998.
44 Preliminary report of the Special Rapporteur on the situation of systematic rape, sexual slavery and slavery-like practices during periods of armed conflict, Ms Linda Chavez, UN Doc. E/CN.4/Sub.2/1996/26, 16 July 1996.
45 Abigail Leibig, ‘Girl child soldiers in Northern Uganda: Do current legal frameworks offer sufficient protection?’, Northwestern University Journal of International Human Rights, Vol. 3, April 2005, para. 4.
47 Amnesty International, Lives blown apart – crimes against women in times of conflict: Stop violence against women, Public Report, 8 December 2004, AI Index No. ACT 77/075/2004.
48 A. Leibig, above note 45, para. 2.
49 Amnesty International, above note 47.
50 F. De Londras, above note 33, p. 3.
51 International Committee of the Red Cross (ICRC), Addressing the needs of women affected by armed conflict: An ICRC guidance document, ICRC, Geneva, 2004, p. 25; see also K. Askin, above note 28, p. 7.
52 K. Askin, above note 28, p. 13.
54 United Nations Economic and Social Council, ‘Report on the situation of human rights in Rwanda’, submitted by Mr René Degni-Ségui, Special Rapporteur of the Commission on Human Rights, under paragraph 20 of Resolution S-3/1, 25 May 1994, E/CN.4/1996/68, paras 16 to 20.
55 See Françoise Nduwimana, The Right to Survive: Sexual Violence, Women and HIV/AIDS, International Centre for Human Rights and Democratic Development, 2004, available at http://www.dd-rd.ca/site/_PDF/publications/women/hivAIDS.pdf (last visited 21 October 2009).
56 Cahn, Naomi, ‘Beyond retribution and impunity: Responding to the war crimes of sexual violence’, Stanford Journal of Civil Rights and Civil Liberties, Vol. 1, Issue 1, 2005, p. 217Google Scholar.
57 Clarke, Meghan, ‘Sexual violence against women during armed conflict: An analysis of international law’, University of British Columbia International Law Journal, Vol. 1, No. 1, 2008, p. 2Google Scholar.
58 Women's Commission for Refugee Women and Children, Against All Odds: Surviving the War on Adolescents, Research Study, May–July 2001, p. 17. See also A. Leibig, above note 45, para. 18.
59 Uganda Human Rights Commission, Annual Report, January 2001–September 2002, p. 55.
60 Women and War, ICRC, Geneva, 2008; Charlotte Lindsey, Women Facing War: ICRC Study on the Impact of Armed Conflict on Women, ICRC, Geneva, 2001; see also Addressing the Needs of Women Affected by Armed Conflict: An ICRC Guidance Document, ICRC, Geneva, 2004.
61 The ‘camisole du veto’, as Josiane Tercinet terms it in ‘Le pouvoir normatif du Conseil de sécurité: Le Conseil de sécurité peut-il légiférer?’, Revue belge de droit international, No. 2, 2004, p. 528.
62 Ibid. For more on the question of the legislative functions of international organizations, see Joe Verhoeven, ‘Les activités normatives et quasi normatives des organisations internationales’, in René-Jean Dupuy (ed.), Manuel sur les organisations internationales, Martinus Nijhoff, Dordrecht, 1998, pp. 414–415. Only available in French.
63 For more on this subject, see the Report of the Panel on United Nations Peace Operations, A/55/305-S/2000/809; Official Records of the Security Council, Fifty-fifth Year, Supplement for July, August and September 2000, document S/2000/809; The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty, available at http://www.iciss.ca/pdf/Commission-Report.pdf (last visited 2 February 2010). See also A More Secure World: Our Shared Responsibility, Report of the Secretary-General's High-Level Panel on Threats, Challenges and Change, UN Doc. A/59/565, 2 December 2004, available at http://www.un.org/secureworld (last visited 2 February 2010). At its 63rd session, the UN General Assembly welcomed the Secretary General's Report on the Responsibility to Protect (A/63/677) and decided to examine the issue further (General Assembly Resolution A/RES/63/308, 7 October 2009).
64 2005 World Summit Outcome, Resolution A/RES/60/1, p. 30, para. 139, available at http://unpan1.un.org/intradoc/groups/public/documents/UN/UNPAN021752.pdf (last visited 2 February 2010).
65 Such was the case in Sierra Leone, Liberia, the Democratic Republic of the Congo, and Haiti.
66 Besides context-specific provisions (applicable either in peacetime or in war), the only provisions of the convention that seem to allude to a prohibition of violence against women are Article 2, abolishing all customs which constitute discrimination against women, and Article 6, suppressing trafficking and exploitation of prostitution, considered as sexual violence in wartime. See M. Clarke, above note 57, pp. 4–5.
67 Committee on the Elimination of Discrimination against Women, ‘Violence against women’, General Recommendation No. 19, 29 January 1992, available at http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom19 (last visited 3 December 2009).
71 See Optional Protocol, above note 11.
72 F. De Londras, above note 33, p. 4.
73 Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute), Art. 2.
77 M. Clarke, above note 57, p. 8.
79 Askin, Kelly, ‘Prosecuting wartime rape and other gender-related crimes under international law: Extraordinary advances, enduring obstacles’, Berkeley Journal of International Law, Vol. 21, 2003, p. 309Google Scholar.
80 In the Duško Tadić case, the Appeals Chamber declared that ‘it can be held that Article 3 is a general clause covering all violations of humanitarian law not falling under Article 2 or covered by Articles 4 or 5, more specifically: (i) violations of the Hague law on international conflicts; (ii) infringements of provisions of the Geneva Conventions other than those classified as “grave breaches” by those Conventions; (iii) violations of common Article 3 and other customary rules on internal conflicts; (iv) violations of agreements binding upon the parties to the conflict, considered qua treaty law, i.e., agreements which have not turned into customary international law’. The Appeals Chamber concluded that Article 3 ‘functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal’. See International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Decision on the Defence Motion), 2 October 1995, paras 89 and 91, confirmed in ICTY, Prosecutor v. Delalić et al., Case No. IT-96-21-A, Judgement (Appeals Chamber), 20 February 2001, paras 125 and 136.
81 ICTY, Prosecutor v. Kunarac, Kovač and Vuković, Case Nos. IT-96-23-T and IT-96-23/1-T, Judgement (Trial Chamber II), 22 February 2001, para. 406. The Trial Chamber states in para. 408 that: ‘rape, torture and outrages upon personal dignity, no doubt constituting serious violations of common Article 3, entail criminal responsibility under customary international law’; See also ICTY, Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion, Ibid., para. 134; confirmed in ICTY, Prosecutor v. Delalić et al., Case No. IT-96-21-A, Judgement (Appeals Chamber), 20 February 2001, para. 174; and also ICTY, Prosecutor v. Blaškić, Case No. IT-95-14-T, Judgement (Trial Chamber), 3 March 2000, para. 134; ICTY, Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgement (Trial Chamber), 10 December 1998, para. 173.
82 ICTY Statute, Art. 4.2(b).
84 K. Askin, above note 28, p. 10.
86 ICTY, Prosecutor v. Kvočka et al., Case No. IT-98-30/1-T, Judgement (Trial Chamber I), 2001; ICTY, Prosecutor v. Rajić, Case No. IT-95-12-S, Judgement (Trial Chamber I), 2006; see also International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Kayishema, Case No. ICTR-95-1-T, Judgement (Trial Chamber II), 21 May 1999.
87 ICTY, Kvočka et al., above note 86, para. 121.
88 Ibid., para. 170; ICTY, Furundžija, above note 81, para. 272; ICTY, Kunarac, above note 81, paras 766 to 774.
89 ICTY, Kvočka et al., above note 86, para. 149.
90 ICTR, Prosecutor v Akayesu, Case No ICTR-96-4-T, Judgement (Trial Chamber), 2 September 1998, para. 688.
91 ICTY, Furundžija, above note 81, para. 185.
92 ICTY, Kunarac, above note 81, para. 442, repeated in ICTY, Kvočka et al., above note 86, para. 177.
93 ICTR, Sylvestre Gacumbitsi v. The Prosecutor, Case No. ICTR-2001-64-A, Judgement (Appeals Chamber), 7 July 2006.
94 Rule 96 of the Rules of Procedure and Evidence provides that when submitting evidence in cases of sexual assault: ‘(i) … no corroboration of the victim's testimony shall be required; (ii) consent shall not be allowed as a defence if the victim: (a) Has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression; or (b) Reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear. (iii) Before evidence of the victim's consent is admitted, the accused shall satisfy the Trial Chamber in camera that the evidence is relevant and credible; (iv) prior sexual conduct of the victim shall not be admitted in evidence or as defence’.
95 Maxime Didat, Joanna Spanoudis, ‘Chronique de jurisprudence du Tribunal pénal international pour le Rwanda (2006)’, Revue belge de droit international, No. 1, 2007, p. 238. Only available in French.
97 ICTR, Gacumbitsi, above note 93, para. 157.
98 Statute of the International Criminal Tribunal for Rwanda (ICTR Statute), Art. 4.
99 ICTR, Akayesu, above note 90, para. 688.
100 ICTY, Kvočka et al., above note 86, para. 180. Footnote 343 states that: ‘Sexual violence would also include such crimes as sexual mutilation, forced marriage, and forced abortion as well as the gender related crimes explicitly listed in the ICC Statute as war crimes and crimes against humanity, namely “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization” and other similar forms of violence’. Rome Statute of the International Criminal Court, UN Doc A/CONF.183/9, 17 July 1998, at Art. 7(1)(g), Art. 8(2)(b)(xxii), and Art. 8(2)(e)(vi).
101 ICRC translation of ‘Le Conseil […] a toujours préféré les actions et les décisions ponctuelles à la formulation de normes déclaratoires’, Serges Sur, ‘Conclusions’, in Le Chapitre VII de la Charte des Nations Unies: Colloque de Rennes, Société française pour le droit international (ed.), Pedone, Paris, 1995, p. 314. Only available in French.
102 For more on this debate, see Jared Schott, ‘Chapter VII as exception: Security Council action and the regulative ideal of emergency’, Northwestern University Journal of International Human Rights, Vol. 6, 2007, p. 24.
103 Tercinet, Josiane, ‘Le Conseil de sécurité et la sécurité humaine’, in J.F. Rioux (ed), La sécurité humaine: une nouvelle conception des relations internationales, L'Harmattan, Paris, 2001, p. 159Google Scholar. Only available in French.
104 Security Council, S/RES/1325 (2000), 31 October 2000; S/RES/1820 (2008), 19 June 2008.
105 Security Council Resolution 1265 (1999), 17 September 1999. Over the past ten years, the general theme of the protection of civilians in armed conflict has been dealt with in the following Security Council Resolutions: 1296 (2000); 1674 (2006); 1738 (2006) and 1894 (2009).
106 Security Council Resolution 1265 (1999), preamble.
113 UN Security Council Resolutions on Children and armed conflicts: 1261 (1999); 1314 (2000); 1379 (2001); 1460 (2003); 1539 (2004); 1612 (2005); 1882 (2009).
114 Resolution 1325 (2000), preamble and paras 9–10.
120 Resolution 1889 (2009), 5 October 2009, p. 1.
123 Resolution 1820 (2008), 19 June 2008, preamble.
136 Resolution 1888 (2009), 30 September 2009, p. 1.
137 United Nations Office for the Coordination of Humanitarian Affairs, Rapport hebdomadaire RDC- Centre/Ouest, 26 October to 1 November 2007. Only available in French.
138 Resolution 1820 (2008), 19 June 2008, para. 15.
139 Report of the Secretary-General pursuant to Security Council Resolution 1820, S/2009/362, 20 August 2009.
141 Resolution 1889 (2009), para. 14.
143 Resolution 1888 (2009), p. 3.