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LLM THESIS [2021-2022] 1


Academic year: 2023

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Shivani Srivastava Student number: 13547992 Email: shivani.srivastava@student.uva.nl University of Amsterdam Supervised by: Mr.dr.J.C. van den Boogaard LLM Thesis (Public International Law Track)

Submitted on: 15-08-2022































CAT Convention Against Torture

CEDAW Convention on the Elimination of all Forms of Discrimination Against Women CRSV Conflict-Related Sexual Violence DEVAW Declaration on the Elimination of

Violence Against Women ECHR European Convention for the Protection

of Human Rights and Fundamental Freedoms

GBV Gender Based Violence

GR General Recommendation

CCPR United Nations Human Rights Committee

IAC International Armed Conflict

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ICRC International Committee of the Red Cross

IGO Inter-Governmental Organisations

IHL International Humanitarian Law

IHRL International Human Rights Law


ILC International Law Commission

IO International Organisation

IPV Intimate Partner Violence

IRRC International Review of the Red Cross

NGO Non-Governmental Organisations

NIAC Non-International Armed Conflict

NSA Non-State Actor

SEA Sexual Exploitation and Abuse

UDHR Universal Declaration of Human Rights

UNGA United Nations General Assembly UNHRC United Nations Human Rights Council

UNSC United Nations Security Council UNSCR United Nations Security Council


WPS Women, Peace and Security



Women’s experiences of armed conflict are multi-faceted. As members of the civilian population and as combatants during the conflict, women are more vulnerable and prone to being subjected to violence. Violence takes the form of gender based violence when it is carried out specifically on the basis of gender ascribed roles. Gender based violence has adverse impacts on the mental, physical and social well-being of women and has been categorized as a violation of International Humanitarian Law and International Human Rights Law rules. In this context, this thesis aims to analyse whether international legal framework under the humanitarian and human rights law regimes provides adequate protection to women against gender based violence and seeks to understand the ways in which such protection can be effectively applied and implemented.

Keywords: Gender-based Violence, Armed conflict, International Humanitarian Law, International Human Rights Law



Armed conflict has direct and indirect consequences on women’s rights. International law guarantees equal rights to men and women, but, women face extensive inequality and discrimination during armed conflicts. During armed conflicts, women are prone to gender- based violence (GBV) that manifests in the form of rape, sexual violence, abuse, forced marriage, sexual slavery, torture and human trafficking.1 Armed conflicts also have an indirect effect on livelihood, public health and infrastructure, which tends to cause mental and psychosocial stress for women and young girls.2 GBV is a pervasive issue that extensively impacts women and young girls during times of armed conflict. Asylum-seekers, refugees, stateless persons, internally displaced persons, and returnees are at-risk of GBV, irrespective of their age, gender or other diverse considerations.3 Despite the presence of major international conventions like the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)4, Convention against Torture (CAT)5 and the Geneva Conventions6, there have consistently been gross violations of international law standards in the context of discrimination against women.7 Even with the presence of general and specific legal provisions that provide protection to women and young girls, GBV still remains to be a disturbing reality of armed conflict.8 Precisely, there is a need to understand whether the legal framework for the protection of women’s

1 J Ward, ‘If Not Now, When? Addressing Gender-based Violence in Refugee, Internally Displaced and Post-conflict Settings: A Global Overview’ (2002)

< www.womensrefugeecommission.org/research-resources/if-not-now-when-addressing-gender-based- violence-in-refugee-internally-displaced-and-post/> accessed on 12 May 2022

2 International Committee of the Red Cross (ICRC), ‘Addressing the needs of women affected by armed conflict’ (2004) 61

<www.icrc.org/en/doc/assets/files/other/icrc_002_0840_women_guidance.pdf> accessed on 18 July 2022

3 UNHCR Policy on the Prevention of, Risk Mitigation, and Response to Gender-Based Violence (2020) UNHCR/HCP/2020/01, 4

4 Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13

5 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85

6 The Geneva Conventions of 1949

7 F Krill, ‘The Protection of Women in International Humanitarian Law’ (1985) 25 International Review of the Red Cross (IRRC) 337

8 ICRC, Report on ‘Sexual and gender-based violence: joint action on prevention and response’ (2015) https://rcrcconference.org/app//uploads/2015/04/32IC-Background-report-on-Sexual-and-gender- based-violence_EN.pdf accessed on 15 August 2022


rights under IHRL and IHL applies to GBV in armed conflict. This also raises the question of legal protection for women during armed conflict and whether such protection plays an effective role in safeguarding the rights and well-being of women during armed conflict. This thesis aims to study the link between GBV and women’s rights in and the gendered impacts of armed conflict. In this manner, the thesis aims to analyse the existing legal framework for the protection of women under International Humanitarian Law (IHL) and International Human Rights Law (IHRL) and highlight as how the protection provided for under these regimes can be effectively implemented to prevent and mitigate GBV during armed conflicts.


• The main research question this thesis addresses is whether in light of increasing gender imbalances and gender based violence during armed conflict, the legal framework under IHL and IHRL provides sufficient legal protection for women during armed conflicts.

◼ Sub Questions:

• How do IHL and IHRL provide protection from acts of gender based violence?

• Does IHL and IHRL framework adequately address responsibility and accountability concerns stemming from acts of gender based violence?

• Are IHL and IHRL mutually reinforcing on each other during armed conflict?

• How can the legal framework provided for protection of women’s rights in armed conflict be effectively implemented in order to address GBV in armed conflicts?


The research method adopted in the current thesis is normative legal research.9 A normative legal research method is used to find the legal rules and legal principles to

9 Normative Legal Research is a process to find legal rules, legal principles, and doctrines of law to address the legal issues at hand. See T A Christiani, ‘Normative and Empirical Research Methods:

Their usefulness and relevance in study of law as an object’ (2016) 219 Procedia - Social and Behavioral Sciences, 201


address the gender-based dimensions of the protection of women’s rights during armed conflict. The research covers a precise investigation of the laws prevalent during armed conflict and seeks to determine what can be done to address GBV in a legal context. The thesis relies on primary and secondary sources to carry out the research. The primary sources relied upon at the international level are international conventions, general principles of international law, customary rules of international law and case laws. The secondary sources relied upon are resolutions, recommendations, humanitarian reports, international guidelines, website publications, position papers, fact sheets, and academic literature, i.e. books, journal articles, academic publications and commentaries.




A resort to armed force between states can result in an armed conflict.10 Armed conflict often involves gendered violence. Various women and girls have been subjected to torture, abuse, abduction, sexual violence during armed conflicts. In this context, it is important to understand how gendered impacts of violence unfold. To delve into these impacts, it is essential to firstly understand the meaning of ‘gender’.

Gender has been defined as ‘socially constructed norms around roles, behaviours and attributes associated with being male and female and the relationships between women, men, girls and boys as well as within same-sex groups’.11Gender shapes an individual’s encounter of armed conflict in complex ways, i.e. underlying gender disparities pre-exist armed conflict and gender roles can change or potentially be exacerbated over armed conflict.12 Gender also tends to intersect with other

10 Prosecutor v Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction [1995] IT-94-1-A (ICTY 1995) [70]

11 United Nations(UN), the definition of gender is available at:

<www.un.org/womenwatch/osagi/conceptsandefinitions.htm#:~:text=Gender%3A%20refers%20to%2 0the%20social,women%20and%20those%20between%20men> Accessed on 18 July 2022

12 International Committee of the Red Cross (ICRC),‘Gendered Impacts of Armed Conflict and Implications for the Application of International Humanitarian Law’, ICRC Geneva (2022) 11

<www.icrc.org/fr/publication/4634-gendered-impact-armed-conflict-and-ihl> accessed on 18 July 2022


personality factors including age, class, race, religion and such an intersection further shapes an individual’s experiences during armed conflicts.13 Following the notion of gender, the term ‘gender equality’ can be expanded to be understood as equality between men and women regardless of their sexuality, gender and the degree to which they conform to gender norms. Gender equality tends to focus on the gender aspects of inequality and the groups that are marginalized by patriarchy.14 It can be said that the promotion of gender equality challenges patriarchy in so far as it aims to eliminate gender inequalities.15 Challenging patriarchy can be essential given the fact that gender inequalities and gender imbalances increase the risks and vulnerabilities associated in conflict areas. Such inequalities can also manifest in the form of gender- based violence.16

Armed conflict is said to be a relevant socio-political condition during which GBV escalates.17 Feminist theorists assert that GBV in armed conflicts is primarily based on, and perpetuated by patriarchy and heterosexual masculine expectations that are amplified through militarization and expectations of aggression constructed for men.18 Notwithstanding an understanding of the term gender, it is also supportive to define the terms masculinity and femininity to further understand the gendered impacts of armed conflict. The term masculinity refers to the socially constructed roles for man, specifically, ideals about how men should or are supposed to act in a given setting.

Similarly, femininity refers to women gender identities, roles and conduct in given settings.19 According to a constructivist point of view, people depict differentiated and fluctuating masculinities as well as femininities, both of which are affected by social circumstances, including the culture of armed conflict. The adaptable articulation of gender, combined with the competing for dominance in armed conflict settings,

13 ibid.

14 R Fal-Dutra Santos, ‘Challenging patriarchy: gender equality and humanitarian principles’ In ICRC Humanitarian Law and Policy Blog (2019) <https://blogs.icrc.org/law-and-policy/2019/07/18/gender- equality-humanitarian-principles/> Accessed on 18 July 2022

15 ibid.

16 ibid.

17 G Benagiano, S Carrara and V Filippi, ‘Social and ethical determinants of human sexuality: Gender- based violence’ (2010) 15 European Journal of Contraception and Reproductive Health Care 220

18 S Banwell, ‘Rape and sexual violence in the Democratic Republic of Congo: A case study of gender- based violence’ (2012) 23 Journal of Gender Studies 45

19 I Specht, ‘Gender, Disarmament, Demobilization and Reintegration and Violent Masculinities’ In Gender Violence in Armed Conflicts ( Instituto da Defesa Nacional 2013) 61

<www.ces.uc.pt/myces/UserFiles/livros/1097_idncaderno_11.pdf> accessed 23 July 2022


frequently gives rise to gender imbalances that cause violence, including GBV.20 This articulation further fortifies the comprehension of violence against women as a social, as opposed to an individual problem which requires comprehensive responses that look beyond individual culprits and victims.


There is no universally accepted definition of GBV. However, GBV is largely used as an umbrella term for any harmful demonstration that is executed against an individual’s will and that is based on socially attributed gender contrasts. Violence against women has been defined as ‘any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women’.21 In the above context, GBV can be defined as ‘any harmful act that is perpetrated against a person’s will, and that is based on socially-ascribed gender differences between males and females’.22

GBV can incorporate sexual, physical, mental and financial harm caused in public or in private. This can take many forms, like rape, intimate partner violence, sexual violence and child marriage, emotional abuse and denial of resources.23 Findings from systematic reviews indicate that the prevalence of violence against women in humanitarian settings ranges from 3% to 52%.24 It can be perceived that GBV is used to highlight the manner in which underlying gender-based power differentials among men and women tend to globally place women in danger of various types of violence.25

GBV can occur against anyone either during peace time or armed conflict. However, it has been established that the impact of violence, specifically against women

20 J L Leatherman, ‘Sexual violence and armed conflict’ vol I (Issue 51 Malden, MA: Polity Press 2011)

21United Nations General Assembly (UNGA), Declaration on the Elimination of Violence against Women (DEVAW) (adopted 20 December 1993)A/RES/48/104

22 GBV Area of Responsibility (GBV AoR), Guidelines for Integrating Gender-based Violence Interventions in Humanitarian Action (2015) 5

23 ibid.

24 L Stark and A Ager, ‘A systematic review of prevalence studies of gender-based violence in complex emergencies’ (2011) 12(13) Trauma, Violence & Abuse 127

25 GBV Guidelines (n 22) 5


increases during armed conflict.26 The rules under IHL provide for protection in armed conflict settings. In furtherance of this protection, it should be understood that some groups are more vulnerable and subject to violence during armed conflict.

Women, children, persons with disabilities and the elderly are prone to be more vulnerable in situations of armed conflict.27 However, women are primarily and extensively targeted during armed conflicts and this causes higher levels of GBV.28 In this context, the thesis seeks to highlight the plight of such affected women and further understand what legal protection is afforded to women given the gendered impacts of armed conflict.


IHL requires that parties to an armed conflict determine and take measures to reduce any expected civilian harm.29 In armed conflicts, women and young girls are impacted in diverse ways due to the conduct of hostilities.30 For instance, women and girls face underlying gender inequality in conflict settings, wherein, women and girls have lesser monetary assets, restricted admittance to fundamental administrations and minimal representation in decision making bodies, including in armed forces.31 According to the estimations of the United Nations, at least 90% of the causalities during war comprise of civilians, women and children.32

International treaties in the field of IHL include numerous obligations for states in times of armed conflict.33 Especially after the inception of these treaties, IHL has evolved into the primary set of rules to be pertinently applied in armed conflicts. The

26 S Cusack and R J Cook , ‘Stereotyping women in the health sector: Lessons from CEDAW’ (2009) 16(1) Washington Lee Journal of Crime and Social Justice 47

27 G A Bunga, ‘The protection of women in armed conflict’ (2017) 6(2) Yustisia Law Journal 249

28 OHCHR, ‘Women’s human rights and gender-related concerns in situations of conflict and instability’ < https://www.ohchr.org/en/women/womens-human-rights-and-gender-related-concerns- situations-conflict-and-instability> accessed on 15 August 2022

29 ICRC (n 12) 4

30 ibid 7.

31 ibid

32 Women and Armed Conflict, Fact Sheet N.5 Published by UN Department of Public Information, (2000) <www.un.org/womenwatch/daw/followup/session/presskit/fs5.htm> Accessed on 19 July 2022

33 IHL rules primarily stem from The Hague Conventions of 1899 and 1907 which address the conduct of warfare and the 1949 Geneva Conventions on the protection of war victims and the Additional Protocols to it.


four Geneva Conventions and their Additional Protocols contain a large number of standards fundamental to IHL and hence act as the core source of the IHL. IHL provides for the security and protection of the people who do not or no longer take part in the hostilities, such as civilians, the sick, and the injured.34 It has been established that the existence of armed conflict is a pre requisite to trigger the application of a bulk of IHL rules.35 IHL rules continue to apply from the beginning of an armed conflict until peaceful settlement has been reached.36 Armed conflict may exist either between armed forces of State parties or between the armed force of a State party and non-State armed groups. The former is referred to as an International armed conflict (IAC) while the latter is categorised as a non-International armed conflict (NIAC).37

With regard to provisions that can be applicable for the general protection of women, firstly, the Convention relative to the Treatment of Prisoners of War states that women shall be treated with all consideration due to their sex and should be treated in a favourable manner as that of men.38 These provisions can be interpreted to understand that in times of armed conflict, women should be treated in similar manner at least as that of men. The conventions also provide that women are entitled to all the rights and freedoms that are guaranteed under the conventions and also that, ‘women shall be treated with all consideration due to their sex’.39


During an IAC, there is guaranteed protection for specific categories of women. The Fourth Geneva Convention deals with the protection of persons taking no active part

34Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31

(First Geneva Convention) art 102

35 Article 2 common to the Geneva Conventions of 1949

36 Prosecutor v Dusko Tadić, Appeal Judgement [1999] IT-94-1-A (ICTY 1999) [70]

37 ICRC, Opinion Paper on ‘How is the term ‘armed conflict’ defined in international humanitarian law?’ (March 2008) <www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf>

>accessed on 23 July 2022

38Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (Fourth Geneva Convention) art 3; art 14(2)

39 First Geneva Convention (n 34) art 12; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 (Second Geneva Convention) art 12


in the conduct of hostilities. As members of the civilian population, women also are guaranteed protection through the rules of IHL which limit the conduct of hostilities in international armed conflicts.The Fourth Geneva Convention specifically lays down that, ‘women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault’.40 Further, Additional Protocol I to the Geneva Conventions contains a specific provision pertaining to the protection of women and similarly states that ‘women shall be the object of special respect and shall be protected against rape, prostitution or any other form of indecent assault’.41 Additional Protocol I also contains the basic foundation of protecting civilians from war, which states that parties involved in the military conflict should ‘differentiate between civilians and combatants’, in order to direct their operations against military targets only, and protect civilians and civilian objects.42 This also furthers the principle of distinction found in IHL which signifies that parties to a conflict should distinguish between civilians and combatants at all times.43

In case of a NIAC, civilian women are guaranteed special protection under the protocol relating to the Protection of Victims of Non-International Armed Conflicts.

The protocol also guarantees protection against ‘outrages upon personal dignity, in particular, humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault’.44


In case of an IAC, the Fourth Geneva Convention contains that women who are pregnant should receive medical care if their condition so requires special treatment.45 The convention also contains that under such treatment, special protection is to be provided to hospitals and that such hospitals or its personnel should in no

40 Fourth Geneva Convention (n 38) art 27

41 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I) art 76 (1)

42 ibid art 48.

43 ICRC (n 12) 13

44 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978)1125 UNTS 609 (Additional Protocol II) art 4

45 Fourth Geneva Convention (n 38) art 91


circumstances be the object of an attack.46 Additionally, it specifies that the wounded and sick, as well as the infirm and expectant mothers should particularly be respected and given protection.47 The convention also requires that states are required to establish safety zones for pregnant women and women with children below the age of seven.48

Further, the Additional Protocol I states that pregnant women and mothers with dependant infants that have been arrested or detained due to reasons concerning the armed conflict should have their cases considered with maximum priority.49 The protocol also contains that pregnant women or maternity cases that fall under the civilian category should be afforded the same protection as is accorded to the sick and wounded.50


Women taking part in the conduct of hostilities find considerable protection under the rules of IHL. The third Geneva Convention provides for the protection of prisoners of war, including women. The Convention includes the same indication regarding women, i.e. of giving due regard and consideration towards their sex.51 Further, the convention also contains that women should be granted the same or similar treatment as men. The convention contains provisions stating that that separate dormitories and facilities need to be provided for female prisoners of war.52 Additionally, the convention requires that female prisoners of war should be confined in a separate quarters than that of male prisoners of war and should be under the immediate supervision of a woman.53

The rules in the Geneva Conventions and their Additional Protocols specify that any violation of the rules of armed conflict is punishable, however, in case of being captured; an individual cannot be deprived to their right to the status of a prisoner of

46 ibid art 20.

47 ibid art 16.

48 ibid art 14.

49 Additional Protocol I (n 41) art 76 (2)

50 Ibid art 8(a).

51 Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) (Third Geneva Convention) 75 UNTS 135, art 14

52 ibid art 25 and art 29

53 ibid , art 97(1)


war.54 This shall be applicable in the cases of women who are a part of the armed forces of a party to a conflict. The prisoner of war status is also applicable to inhabitants of a non-occupied territory who spontaneously participate in the conduct of hostilities and take arms in order to resist enemy invasion- provided they carry their arms openly and respect the laws and customs of war.55 The same status is also accorded to non-combatants authorized to follow the armed forces without directly taking part in the hostilities. For instance, women who act as medical or nursing assistants can fall under this category.56 Additionally, the rules also state that anyone who has not been granted the status of prisoner of war and has taken part in hostilities should be treated in a humane manner.57

With regard to a NIAC, the Additional Protocol II states that all provisions contained therein should be applied without any adverse distinction founded on sex.58 In similar manner as that of IACs, pregnant women or mothers of young children with a prisoner of war status have protection from death penalty.59 Further, it also stipulates that female prisoners of war are required to be kept under the supervision of female prison personnel.60


Human rights are rights inherent in all human beings and all humans are entitled to equal protection of the law without any discrimination. All individuals are entitled to the freedoms without any distinction of any kind, including sex.61 In context of ensuring gender equality, both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural

54 ICRC, Basic Rules of the Geneva Convention and their Additional Protocols (1983) 21-22

55 Third Geneva Convention (n 51) art 4(6)

56 ibid., art 4(4); see also, A Papyan, ‘The legal basis for the protection of women in armed conflicts’

Center for European Studies, Yerevan State University (2016)


accessed on 20 July 2022

57 ICRC (n 54); A Papyan (n 56)

58 Additional Protocol II (n 44) art 1

59 ibid art 6(4)

60 ibid, art 25; art 29 , See also R Y Abebe, ‘Women and Armed Conflict’ Global Human Rights Defense (2022) <https://ghrd.org/women-and-armed-conflict/> Accessed on 21 July 2022

61 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) , art 2


Rights (ICESCR) contain binding obligations for States to ‘ensure the equal right of men and women’ to the enjoyment of all rights thereunder.62 When states consent to such treaties, they assume obligations to facilitate the enjoyment of human rights and protect its citizens from human rights abuses. However, States might derogate from their obligations by taking certain measures, in case of an emergency, such as armed conflict. IHRL accommodates specific underogable protection clauses, like the prohibition of torture and inhuman or degrading treatment or punishment. Such underogable or jus cogens norms contained in all human rights treaties provide a strong basis to prevent acts of violence or ill treatment at all times.63

GBV incorporates acts that incur physical, mental, or sexual abuse or enduring dangers of such demonstrations, coercion, or other deprivation of liberty.64 Such acts violate a number of universal human rights protected by international instruments and conventions and are therefore a human rights issue.65 Moreover, the United Nations Human Rights Committee (CCPR) explicitly states that “States parties may in no circumstances invoke Article 4 (derogation during states of emergency) of the ICCPR as justification for acting in violation of humanitarian law or peremptory norms of international law”.66 This includes certain rights such as the right to life and right to be free from cruel, inhuman or degrading treatment from which no derogation is permitted.67 However, this raises questions as to whether a state is bound by IHRL obligations extra territorially.With respect to state obligations under the ICCPR, the CCPR has stated that-

‘State parties are required by Article 2 to regard and to guarantee the Covenant rights.

Article 2 requires that States Parties adopt legislative, judicial, administrative, educative and other appropriate measures in order to fulfil their legal obligations’.68

62 ICCPR (adopted 16 December 1966,entered into force 23 March 1976) 999 UNTS 171, art 3 and art 26 ; ICESCR (adopted 16 December 1966,entered into force 3 January 1976) 99 UNTS 3, art 3

63 G Gaggioli, ‘Sexual violence in armed conflicts: A violation of international humanitarian law and human rights law’ (2014) 96 (894) IRRC 503

64 GBV Guidelines (n 22) 322

65 UN Committee for the Eliminations of All Forms of Discrimination against Women (CEDAW Committee),GR No 35 on gender-based violence against women (14 July 2017) para 15

66 CCPR, General Comment 29, Article 4: Derogations during a State of Emergency (31 August 2001) UN Doc CCPR/C/21/Rev 1/Add 11, para 11

67 ibid, art 6-7

68 CCPR, General Comment No 31,The nature of the general legal obligation imposed on States Parties to the Covenant (2004) paras 10-11; ICCPR (n 62) art 2


The above rule moreover applies to those inside the power or viable control of the powers of a State party acting outside its territory.The International Court of Justice (ICJ) has stated that IHRL applies in respect to acts done by a state in exercise of its jurisdiction outside its own territory and specifically in occupied territories.69 This decision also relies on the interpretation of Article 2 of ICCPR provided under General Comment 31, which states that, ‘IHRL applies regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace- keeping or peace-enforcement operation’.70

While in case of the extra territorial applicability of ICESCR, the ICJ is of the opinion that the applicability of ICESCR has a stronger link to the territory of the state. The extra territorial application of ICESCR cannot be excluded as long as the state has jurisdiction and exercises effective control over such foreign territory.71 This can be interpreted in the sense that such application will stand valid in both circumstances, where the state has sovereign power and also where it has territorial jurisdiction.72 As far as global human rights treaties regarding women’s rights are concerned, CEDAW is considered as the constitution of women’s rights. 73 However, the convention does not contain any provision or any explicit reference relating to violence against women or GBV. State parties under CEDAW are legally bound to respect, protect and fulfil their obligations concerning women’s rights. States are not only required to fulfil their obligations but are also obligated to prevent any discrimination against women that is being carried out by private individuals or organisations. CEDAW does not contain any direct references to GBV or GBV during armed conflict, but however contains a provision directing State parties to take appropriate measures to modify the social and cultural patters surrounding men and

69 Democratic Republic of Congo v Uganda (Merits) [2005] ICJ Rep 168, [216]

70 CCPR (n 68) para 10; See also CEDAW GR No 28 on the Core Obligations of States Parties under Article 2 of CEDAW (16 December 2010) para 36

71 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, [112]

72 UN Office of the High Commissioner for Human Rights(OHCHR) ‘International legal protection of human rights in Armed Conflict’ (2011), 44

<www.ohchr.org/sites/default/files/Documents/Publications/HR_in_armed_conflict.pdf > accessed on 24 July 2022

73 N Buchowska, ‘Violated or protected-Women's rights in armed conflicts after the Second World War’ (2016) 2 International Comparative Jurisprudence 72, 77


women so as to eliminate any imbalance, prejudices or practices that are based on the notion of patriarchy. 74 This provision may be implicitly linked to gender imbalances and GBV that stems as a result of such imbalances. In contrast, CEDAW General Recommendations (GR) have played an exceedingly important role towards addressing the issue of women and armed conflict. CEDAW GR.30 highlights the role of conflict in worsening existing gender imbalances, which increases the chance of GBV for women and girls. It states that women and girls tend to encounter sexual violence as a strategy of conflict by armed combatants and may encounter more extensive types of violence by various actors during and after conflict, further highlighting how such violence impacts womens’ participation in public life.75 This recommendation seeks to highlight the correlation between acts of discrimination and GBV to the concept of armed conflict.76 CEDAW GR.19 takes into account the issue of GBV and states that GBV might breach provisions of the Convention, whether or not those arrangements explicitly mention violence. States parties have a reasonable due diligence obligation to prevent, prosecute and punish such demonstrations of gender-based violence.77 Additionally, CEDAW GR. 35 states that a women’s right to a life free from GBV is indivisible from and interdependent with other human rights.78 This recommendation recognizes that prohibition of GBV has become a norm of international customary law. It is important to note that these recommendations although not binding in nature, are still of highly authoritative legal value with regard to state obligations towards ending violence against women. Additionally, various human rights bodies have also concluded that acts of sexual violence can fall under the garb of torture or inhuman treatment.79 The CAT also imposes a duty on the states to carry out an investigation when alleged acts of torture have been carried out and a

74 CEDAW (n 4) art 5(a)

75 CEDAW Committee, GR No 30 on women in conflict prevention, conflict and post-conflict situations (1 November 2013) paras 34-38

76 ibid.

77 CEDAW Committee, GR No 19 on Violence against women (30 January 1992) paras 7-9

78 CEDAW (n 65); Such rights include - the right to life, health, liberty and security of the person, the right to equality and equal protection within the family, freedom from torture, cruel, inhumane or degrading treatment, freedom of expression, movement, participation, assembly and association

79 Raquel Martín de Mejía v Peru [1996] Case No. 10.970, IACHR Report No 5/96, Annual Report 1995, p 185


failure to succinctly investigate, prosecute and punish such allegations gives rise to a separate violation of the prohibition of torture or the right to an effective remedy.80 1.5. ROLE OF THE UNITED NATIONS AND THE WOMEN, PEACE,


The UN has played a noteworthy role in developing the international legal framework towards protection of women’s rights during armed conflict. The Women, Peace and Security agenda was the first resolution to address the impact of armed conflict on women. It calls upon ‘all parties to armed conflict to respect fully international law applicable to the rights and protection of women and girls, especially as civilians’.81 The resolution further reiterates that parties to armed conflict are to take requisite measures to safeguard women and young girls from GBV, especially assault and different types of sexual abuse, and any remaining types of violence in armed conflict;

reiterating the need of all parties to armed conflict to regard and consider the specific necessities of women and young girls.82

Additionally, the UNSC has also perceived the connections between maintaining international peace and security and combating violence against women, particularly sexual violence.83 The UNSC identifies rape and sexual violence during armed conflict as a war crime and a threat to the safety of civilians as well as international peace and security.84 Recent resolutions qualify GBV as a tactic for terrorism.85 More recent efforts have also involved the adoption of a survivor centric approach towards responding and preventing to sexual violence in conflict and post-conflict situations.

Such approach can prove effective in guaranteeing that prevention and reactions towards violence against women are non-discriminatory. The UNSC also calls on members to regard the rights and focus on the necessities of survivors, including

80 Aydin v. Turkey, ECtHR Case No 57/1996/676/866 (ECtHR 25 September 1997) para 103

81 United Nations Security Council Resolution (UNSCR) 1325 on women and peace and security (31 October 2000) UN Doc S/RES/1325

82 ibid.

83 UNSCR 2122 (18 October 2013) UN Doc S/RES/2122 ,UNSCR 1888 (30 September 2009) UN Doc S/RES/1888

84 UNSCR 1820 (19 June 2008) UN Doc S/RES/1820; See also, S Banwell, ‘Security, peace and development: Unpacking discursive constructions of wartime rape and sexual violence in Syria’ (2018) 9(2) International Journal of Peace and Development Studies 15

85 UNSCR 2242 (13 October 2015) UN Doc S/RES/2242


groups that are especially vulnerable or might be explicitly affected. Further, it calls for efforts to address impunity and for complete and significant cooperation of survivors in all phases of transnational justice processes. This resolution addressed a defining moment in the plan for guaranteeing gender equality and brought about vital responsibilities and commitments which are currently widely recognized.86

Thus, from the aforementioned analysis it can be inferred that GBV during armed conflict is sufficiently prohibited under IHL and IHRL. Though these regimes do not contain any explicit provisions relating to GBV, they contain adequate references and protection against indiscriminate treatment and violence carried out against women during armed conflict. Considerable progress has also been made at the UN level with the inception of the Women, Peace and Security (WPS) agenda that draws important connections between women and armed conflict and also at the global policy level with an increase in various community-based GBV interventions. While IHL contains protection for different categories of women, either as civilians or as combatants, IHRL on the other hand does not adapt fundamentally different rights for each separate category of person, i.e. it adapts everyone’s rights depending on the specific needs of those categories- such as women.87 However, it is important to note that IHL and IHRL also have differing rules pertaining to different actors in an armed conflict.

Both regimes impose different obligations during armed conflict and such obligations differ in the sense that its obligations are imposed on either primary or secondary subjects of law.88 There still exist various gaps and challenges towards ensuring that such actors are upholding their legal obligations during armed conflict. Such challenges can also manifest in the form of situations wherein there is no direct judicial redressal or criminal impunity for perpetrators of violence against women in armed conflict. In this context, the second chapter seeks to understand the protection of women’s rights through the notions of responsibility and accountability for acts of GBV.

86 UNSCR 2467 (23 April 2019) UN Doc S/RES/2467

87 OHCHR (n 72) 20

88 ibid.




The protection of women's rights in conflict settings is impacted by different subjects of international law. This can include primary subjects- States acting individually, States acting as members of international organisations (by participating in international peacekeeping forces), International Organisations (IOs) and secondary subjects such as non-State actors (NSAs). Violations of women’s rights by such actors may entail responsibility under international law.89


The concept of state responsibility is enshrined in the principle of pacta sunt servanda, meaning that every international agreement between States is binding in nature and should be carried out by them in good faith. Under general international law, a breach of an international obligation held by a State leads to an internationally wrongful act which entails the responsibility of such state.90 A state party can also be held responsible for acts and omissions by its organs or agents that may constitute a wrongful act.91 The rules of IHL and IHRL impose on states, the duty to investigate any alleged violations of human rights and humanitarian law and accordingly prosecute and punish the alleged violators. Under IHL, the rules are not only addressed to state parties to the treaties but also to all parties to the conflict.92 State parties and their forces participating in armed conflict have obligations to respect IHL rules and to provide protection to civilians, other protected persons and to their property. States can be held responsible for violations of human rights and humanitarian law in armed conflict even if such violations are carried out by state organs, persons or a group exercising elements of governmental authority, persons or

89 CEDAW (n 74) para 13

90 International Law Commission (ILC), Draft articles on Responsibility of States for Internationally Wrongful Acts (2001) Supplement No. 10 (A/56/10), art 1 and art 2

91ibid art 4; See also art 91 of Additional Protocol I

92 Common art 3 to The Geneva Conventions of 1949


groups acting under the direction or control of the state and in cases where the state itself acknowledges wrongful conduct of an individual or group as its own conduct.93 Under IHRL, various human rights treaties and instruments uphold the principles of universality, interdependence and indivisibility of human rights, whereby, states are required to respect, protect and fulfil these rights. For instance, the ICCPR lays down that ‘nothing present in the covenant may be interpreted as implying for any state, group or person the right to engage in any activity aimed at the destruction of the rights and freedoms contained in the covenant’.94 The convention also requires that state parties to the covenant take all measures to ‘ensure the equal right of men and women to the enjoyment of their civil and political rights’.95

The ICESCR however contains provisions specific to the protection of women in relation to situations where they may be vulnerable to violence or unfair treatment.96 In context of women’s rights particularly, CEDAW requires that States parties, their organs and agents should abstain from engaging in any activities of direct or indirect discrimination against women and guarantee that public authorities and institutions uphold this obligation.97 Further, apart from ensuring that state laws, policies, programs and procedures don't discriminate against women, state parties must have effective and available legal framework set up to address all forms of violence against women committed by State agents whether on their territory or extraterritorially.98 In some circumstances, States can also be held responsible for acts of NSAs. NSAs can involve a wide range of actors such as NGOs, intergovernmental organisations, paramilitaries, confidential military contractors, armed groups, organized criminal groups and vigilantes. The most prevalent kind of NSAs carrying out violence in armed conflicts is armed groups. Armed groups carrying out hostilities while exercising effective control over a territory or a section of populace may for both legal and other calculated reasons be able to be considered as disregarding human rights.

However, the same cannot be said in case of an armed group not exercising effective

93 Yearbook of the International Law Commission (vol II (Part 2) United Nations Publication 2001) 26

94 ICCPR (n 62) art 5

95 ibid art 3.

96 ICESCR guarentees the equal enjoyment of men and women of all the economic, social and cultural rights contained in the convention. See art 2-3 of ICESCR

97 CEDAW (n 4) art 2(d)

98 CEDAW (n 4) art 2(c)


power or control over a territory since it is assumed that states bear the responsibility to apply internal individual criminal sanctions against the members of the armed groups and punish such perpetrators in accordance with the law.99 States, individuals and groups are required to not engage in any activity that may excessively limit or destruct the enjoyments of the rights and freedoms as guaranteed under IHRL treaties.100 Precisely, states are required to have appropriate laws consistent with the rights and freedoms set out in international human rights treaties. In this context, the reference to an individual or group can be interpreted as requiring the state to apply the laws against the person or group that violate the rights set out in the treaties.101 This obligation is referred to as an obligation of due diligence, wherein States parties can be held responsible in the event that they neglect to take measures to prevent, punish and provide reparation for acts or omissions that attract individual criminal responsibility.102 Under this doctrine of due diligence, state parties are expected to have laws, foundations and a framework set up to uphold their legal obligations.

Additionally, States parties are obliged to guarantee that their laws function effectively and are upheld and diligently enforced by all State agents and bodies. The failure of a State party to take appropriate measures to prevent demonstrations of GBV against women when its agents know or ought to know about the risk of violence, or their inability to investigate, indict and punish, and to provide reparation to the victims or survivors, would then imply tacit consent or encouragement to acts of GBV against women. These acts or omissions comprise human rights violations.103 In relation to violence against women, DEVAW urges states to “exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons”.104 The Inter-American Court of Human Rights (IACHR) laid down

99 J Bauer and A Hélie ‘Manual on Documenting Women’s Rights Violations by Non-State Actors’

(2006) International Centre for Human Rights and Democratic Development and Women Living Under Muslim Laws, 17 <www.dd-rd.ca/site/_PDF/publications/women/Non-State.pdf > accessed on 27 July 2022

100 See ICCPR, art 4; ICESCR, art 5; CEDAW, art 2(e)

101 J Bauer (n 98) 27

102 The Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2022) 2187 UNTS 3, art 25(4)

103 J Ulrich, ‘Confronting Gender-Based Violence with International Instruments: Is a Solution to the Pandemic Within Reach?’ (2000) 7(2) Indiana Journal of Global Legal Studies 629

<www.repository.law.indiana.edu/ijgls/vol7/iss2/11> accessed 6 June 2022

104 DEVAW (n 21) art 4(c)


that a failure on the part of the state to prevent or adequately respond to violations arising out of an illegal act which is initially not directly imputable to the state can give rise to the international responsibility of the state, not because of the act itself but due to lack of due diligence on its part to prevent such a violation as required by the convention.105 Thus, the notion of due diligence plays an important role on account of holding states responsible for acts of NSAs.

Similarly, IOs or an intergovernmental organisation (IGO), such as the UN can also be held internationally responsible of internationally wrongful act attributable them.106 An internationally wrongful act committed by an IO should also constitute a breach of an international obligation held by such organisation.107 It has also been well established that human right violations can be attributed to IOs.108 Precisely, it is imperative to point out that peacekeeping forces or humanitarian actors sent by states or international organisations may fall under the effective control of such state or organisation. Some humanitarian and peacekeeping personnel have themselves committed internationally wrongful acts of sexual violence and abuse during armed conflicts. In the past this has included exchanging money, food, assistance items or benefits for sexual services.109 Current international law establishes that sexual abuse committed by members of security forces, whether as a result of a deliberate practice promoted by the State or as a result of failure by the State to prevent the occurrence of this crime, constitutes a violation of the victims’ human rights, especially the right to physical and mental integrity.110 GBV violations carried out by humanitarian personnel or security forces require accountability and entail responsibility.

The UN extends to its personnel the responsibility of respecting universally recognized standards of IHL and IHRL.111 With regard to the accountability of peacekeeping personnel, it is noteworthy that as a response to incidents of sexual exploitation by peacekeepers, the UN Security Council has instituted a ‘zero

105 Velásquez Rodriguez v Honduras [1988] IACHR Series C No 4, para 172

106 See ILC, Draft articles on the responsibility of international organizations (2011) arts 4-12

107 ibid art 9(1).

108 Behrami v France [2007] Decision on Admissibility, ECtHR App No 71412/01, 46 ILM 743

109 M Bastick, K Grimm and R Kunz, ‘Sexual Violence in Armed Conflict’, Geneva Centre for the Democratic Control of Armed Forces (2007) Geneva: DCAF, ISBN 978-92-9222-059-415, 13

110 Raquel Martín de Mejía v Peru (n 78)

111The Convention on the Safety of United Nations and Associated Personnel (adopted 9 December 1994,entered into force 15 January 1999) 2051 UNTS 363, art 20


tolerance’ policy of sexual exploitation and abuse (SEA) in all UN peacekeeping operations.112 Additionally, CEDAW GR.30 also addresses the issue of SEA. It extends the range of actors accountable on this issue to include ‘national troops, peacekeeping forces, border police, immigration officials and humanitarian actors’. 113 In this manner GR30 reinforces this issue and extends accountability to the above actors. Such responsibility can be accredited to both states and International Organisations. In order to remediate such violations, states have an obligation to undertake prompt, immediate and impartial investigations of IHL and IHRL violations, specifically in the area of criminal justice and to ensure that the perpetrators are duly prosecuted and punished under international law.114 Under IHL, states undertake to enact legislation to provide the right penal sanctions for perpetrators of grave breaches of IHL during both IACs and NIACs.115 With regard to reparations for violations of women’s rights specifically, the Optional Protocol to CEDAW contains a complaints procedure which enables women to seek remedies for the violations of their human rights set forth in CEDAW.116 State parties under the protocol recognize the competence of the CEDAW committee to receive and consider communications. This thereby enables women the ability to seek reparations in the context of GBV and the human rights violations carried out by state actors, groups or other persons.

Additionally, in the context of reparation for violations of IHL and IHRL standards, there exist complementary theories that still place states under the obligation to, at the least, facilitate reparations for violations committed by state actors that may not be easily attributed to the state. This complementary theory of duty can be said to originate from the principle of responsibility to protect (R2P), which lays down the

112 United Nations Peacekeeping, Standards of Conduct <https://peacekeeping.un.org/en/standards-of- conduct> accessed on 25 May 2022; See also UNSCR 2272 [to prevent sexual exploitation and abuse (SEA) by those under UN mandate] (11 March 2016) UN Doc S/RES/2272

113 CEDAW (n 74) para 34

114OHCHR, Updated Set of principles for the protection and promotion of human rights through action to combat impunity (2005) E/CN.4/2005/102/Add.1, principle 19

115 See Article 3 common to The Geneva Conventions of 1949; The Rome Statute (n 101) art 8(2) (c) and (e); See also Tadic case (n 36) [86], [136]

116 UNGA Res 60/1, ‘2005 World Summit Outcome’ (16 September 2005) UN Doc A/RES/60/ 1 2005, para 138


state as the primary obligor.117 The doctrine of R2P encumbers upon the state the primary duty to employ its resources and utilize its powers to seek those who violate the human rights of its citizens. As a matter of customary international law, this obligation entails the states to uphold justice by holding responsible those nationals who are implicated on account of violation of international human rights.118 Thus, it can be well established that states bear primary responsibility to respect and ensure the human rights of their citizens, as well as all individuals within their territory as provided for by relevant international law.


Many of today’s armed conflicts occur inside states and are pursued by one or more non-state actors (NSA) battling the state armed force. In these conflicts, continuous infringement of humanitarian standards is committed by both states and NSAs. NSAs often control or heavily impact regions where civilians reside. Thus, endeavors to safeguard civilian populations ought to address not just the conduct of states, but also of NSAs.119 Common Article 3 of the Geneva Conventions prohibits attacks on persons who are no longer taking active part in hostilities, including civilians and it applies to the all the ‘parties to the conflict’, i.e. not just the state armies but also NSAs.Such actors incorporate armed groups and governments of elements which are not or not generally perceived as states.120 In context of women’s rights, both IHL and IHRL have recognized the direct obligations of NSAs in specific circumstances, including as parties to an armed conflict. Those obligations include the prohibition on torture, inhuman or degrading treatment which is part of customary international law and has become a peremptory norm.121

117C Eboe-Osuji, ‘Reparation for Female Victims of Sexual Violence in Armed Conflicts’ in International Law and Sexual Violence in Armed Conflicts, vol 35 (Leiden, The Netherlands: Brill | Nijhoff) 271-374

118 See The Rome Statute (n 101) preambular paragraph 6 and art 1; See also UNSCR 1888 (n 82) preambular paragraph 7

119 DCAF and Geneva Call, ‘Armed Non-State Actors: Current trends and future challenges’ DCAF HORIZON (2015) Working Paper No 5, at 6 <www.files.ethz.ch/isn/144858/ANSA_Final.pdf>

accessed 25 June 2022

120 A Sjöberg, ‘Armed Non-State Actors and Landmines Volume III: Towards a Holistic Approach to Armed Non-State Actors?’ (Geneva: Geneva Call and the PSIO, 2007) 1 <http://genevacall.org/wp- content/uploads/dlm_uploads/2013/10/20071200_annual_report_2007.pdf> accessed on 25 June 2022

121 CEDAW (n 70) para 65



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