Women in War Under International Law

Now, when it is clear that Hamas’s murderous attack was unprecedented in its extreme violence, including sexual violence, the relevant international bodies—such as the UN Security Council, UN Women, and the International Red Cross—must respond to these incidents.

Photo by Tomer Neuberg/Flash90

Following the murderous and abominable attack by Hamas on October 7, 2023, horrifying  testimonies have been received of sexual violence being perpetrated against women in Israel by the attackers.[1] Though it is difficult at this stage to asses the extent of such cases, the review presented here seeks to examine the unique implications and consequences of such acts against women during war from the perspective of international law, with a focus on cases of sexual violence.

While the Israeli-Palestinian conflict has been ongoing for many years, it has not, up to this point, been significantly marked by incidents of sexual violence by either side, and those painful cases that have unfortunately occurred were highly sporadic.[2] Now, when it is clear that Hamas’s murderous attack was unprecedented in its extreme violence and cruelty in this regard, the relevant international bodies—such as the UN Security Council, UN Women, and the International Red Cross—must respond to these incidents.

So far, these organizations have been exceptionally noncommittal, even silent, in their responses to the Hamas attack in general, and to testimonies of sexual violence against women and children in particular. When international law has been clearly contravened (even if the full severity of the events has yet to be established), the failure of these bodies to respond[3] or to take any active steps to defend women and girls is itself a contravention of the legal and moral responsibility that accompanies their roles. In light of this failure, women’s organizations from Israel and from many other countries have demanded the immediate implementation of steps as required by international law, which constitute the moral and human code that has been developed over the years by the international community as part of its commitment to women’s rights.[4]

International law concerning the special consequences of war for women focuses mainly on offenses relating to gender-based violence, and these are in the first rank of defined and recognized war crimes. In addition to sexual violence, international law for the last three decades has also attached great importance to the equal participation of women in decision-making forums in conflict zones. This is not only in the name of equality, but mainly due to recognition of the importance of including their unique perspective on war and on efforts to reach peace agreements.

This aspect of international law is also relevant to the current war, in which there is almost a complete lack of women in decision-making forums in Israel, along with multiple testimonies of the heroism of women who contributed significantly to the protection of human life, and thus, with their own bodies, prevented an even greater disaster.

This article looks at some key points in the progression of international law as it pertains to women in times of war. This historical and legal analysis demonstrates that both internationally and domestically in Israel, various authorities have the responsibility to speak out against the sexual violence that occurred on October 7 and to take steps to ensure women are protected and represented in the war's decision-making forums.

 

The establishment of special international criminal courts to examine the crimes committed in Rwanda and former Yugoslavia

War is destructive among all population groups—men and women alike. Yet since the dawn of humanity, violence against women[5] in the opposing group of the conflict has been used as a form of war and terrorism.[6] This includes wars from the 20^th century, such as World War Two, the Vietnam War, and particularly in Yugoslavia and Rwanda, where there has been widespread violence used as a weapon of war. [7]  

An important milestone in the struggle for recognition and protection of women’s rights in war came after the wars in Rwanda and former Yugoslavia during the 1990s, with the establishment of special international criminal courts under the terms of UN Security Council resolutions.[8] These courts were set up to deal with crimes committed during those wars, which included systematic rape as well as cases of sexual enslavement.

The constitution of the International Criminal Tribunal for the former Yugoslavia (ICTY) included a broad mandate for trying sexual criminals, and was the first case of rape in war being defined as a crime against humanity. The court convicted three Serbian soldiers (Kunarac, Kovač, and Vuković) of rape, sexual enslavement, and torture of Muslim women during the war. The court’s verdict recognized the right of women to freedom from violence as a human right, and recognized rape—used as a cruel and violent means for imposing sociopolitical control and as means of terror and ethnic cleansing—as a crime against humanity.

The constitution of the International Criminal Tribunal for Rwanda (ICTR) defined rape as a war crime and a crime against humanity. The court’s verdict recognized the impact of gender-related crimes on the victims’ families and communities, on the groups involved in the conflict, and on the entire population.

Both the ICTY and the ICTR also made a significant contribution to the treatment of rape victims during the indictment and trial process. This followed the demands of feminist organizations to redefine crimes against humanity and the crime of genocide so as to include sexual violence offenses, and their demands to allow victims to testify. These demands led to a major change in the attitude of international criminal law to the victims of these crimes, awarding them recognition and giving them a voice.

 

The Rome Statute

A dramatic development in the recognition in international law of sexual violence offenses was provided by the Rome Statute of 1998, which is considered the modern international criminal codex, reflecting customary international law. This statute formed the basis for the establishment of the International Criminal Court (ICC), and also stated that gender-based and sexual crimes are subject to the jurisdiction of the ICC.

The Rome Statute further decrees that sexual violence is included in the categories of crimes against humanity and war crimes, and that persecution on the basis of gender is a crime against humanity, out of recognition that groups that are persecuted on the basis of gender have special needs and concerns. The statute, therefore, explicitly recognizes gender-based crimes, and defines sexual offenses as falling under the traditional categories of crime that are dealt with by the ICC.

 

The duty for women to be involved in all decision-making bodies

UN Security Council Resolution 1325, adopted in 2000,[9] marked the first time since it was founded that the Security Council had directly dealt with the unique aspects of the status of women in war, and with processes to advance peace. The introduction to the resolution, as well as mentioning the Rome Statute and the Geneva Convention, references the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),[10] which emphasizes the right of women to equality, and the declaration and platform for action produced by the Fourth UN World Conference on Women, held in Beijing in 1995.[11]

The 1995 Beijing Conference was attended by thousands of women from around the world, and its platform for action became the basis for Resolution 1325. It highlighted the unique impact of war on women and the need to protect them from sexual violence in conflict zones. In addition, it emphasized the importance of women’s leadership in conflict zones, their crucial role during war of strengthening and sometimes protecting civilian communities, and the need to ensure the equal participation of women in decision-making forums in conflict situations.[12]

The translation of these ideas into a UN Security Council resolution marked a dramatic step forward in the conceptualization of the issue of women in war zones, based on three main principles: the duty of protection, the duty of participation, and the duty of prevention of violence (widely referred to in professional literature as “the three Ps”):

• The first principle highlights the duty of protection for women and girls from all types of violence during war, and particularly sexual violence.[13] According to the text of the resolution, the UN Security Council “calls upon all parties to armed conflict to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict.”
• The second principle emphasizes the duty of equal participation of women and girls in all areas of decision-making in conflict situations, including negotiations over political settlements and peace agreements.
• The third principle relates to the duty of states to prevent violence against women and girls by all possible means, including via the incorporation of gender perspectives in decision-making process, so as to formulate effective ways of preventing all kinds of violence against women and girls, including sexual violence.

The Security Council’s decision not to pass a separate resolution for each of these principles, but rather to combine them in a single resolution, expresses the idea that the three principles are inherently intertwined and inseparable.

The significance of Resolution 1325 and the subsequent resolution of the UN Security Council

The combination of the three principles of Resolution 1325 under the aegis of the UN Security Council marked a significant milestone in the conceptualization of the issue of women in conflict zones, and especially of the responsibility borne by states to ensure the implementation of these principles.[14] As soon as the resolution was adopted, women’s organizations acted to translate it into dozens of different languages and to advance its application in various countries in a manner suitable to the particular challenges of each country.[15] Thus from 2000 on, following the resolution, UN member states began adopting various means to ensure the implementation of these principles, or at the very least, some of them.

Around five years after the resolution, various international bodies (such as the European Union and NATO), as well as the majority of states around the world, published national action plans in which they detailed the steps being taken to ensure the implementation of the resolution’s principles.

Ever since, the Security Council has been working to assess this implementation activity, and every few years it publishes an additional resolution highlighting the Security Council’s commitment to the three principles of the resolution.

Also following the adoption of Resolution 1325, UN organizations such as UN Women, and as others with various roles in the international community, such as the International Red Cross,[16] expressed their commitment to implementing the principles of the resolution in all their activities.

These repeated commitments by the UN Security Council, UN Women, and other international organizations raise serious questions about their meek response—and in some cases, complete lack of response—to Hamas’s attack on Israel.

In conclusion, international law reflects the values and moral conscience of the international community regarding the need to eliminate all forms of sexual violence in war. Therefore, the relevant international organizations should immediately speak out clearly and unequivocally against the sexual violence perpetrated against women during the Hamas attack.  This international public condemnation is the necessary first step, though insufficient by itself, toward properly addressing these crimes.[17] In parallel, internal steps should be taken by the State of Israel to ensure that all the principles of international law, including the protection of women and women’s representation in decision-making forums, are implemented fully and properly.

 

 

Footnotes:

[1] Testimonies of rape have come from several official sources: The speech by US President Joe Biden on October 10, 2023, https://www.haaretz.co.il/news/world/america/2023-10-11/ty-article/0000018b-1dfa-d465-abbb-1dfefea60000 [Hebrew]; the statement to foreign press correspondents given by Israel’s defense minister on October 12, 2023, https://www.inn.co.il/news/616483 [Hebrew]; and a statement by the IDF spokesperson on October 23, 2023.

[2] See: Kathleen Kuehnast, Chantal de Jonge Oudraat and Helga Hernes, Women and War: Power and Protection in the 21st Century, Unites States Institute of Peace, 2011, p. 37; Tal Nitsan, The Limits of Occupation: The Rarity of Military Rape in the Israeli-Palestinian Conflict, graduate thesis in anthropology, Hebrew University of Jerusalem, September 2006 [Hebrew]. In recent days, there have been testimonies of two cases of sexual assault of Palestinians by Israeli soldiers and civilians: https://www.haaretz.co.il/news/politics/2023-10-19/ty-article-magazine/0000018b-42aa-df22-a5eb-4bfb48350000.

[3] For the statement issued by UN Women on October 13, 2023, see: https://www.unwomen.org/en/news-stories/statement/2023/10/un-women-statement-on-the-situation-in-israel-and-the-occupied-palestinian-territory.

[4] For the letter from women’s organizations to UN Women on October 23, 2023, see: https://iwn.org.il/%D7%A7%D7%A8%D7%99%D7%90%D7%94-%D7%9Cunwomen/. For the speech given by Dr. Cokhav Elkayam-Levy to the UN Committee on the Elimination of Discrimination Against Women (CEDAW) on October 31, 2023, see: https://www.facebook.com/cochav.elkayam/posts/pfbid02KmCR5XE8fmq5op6PPjHWy1qKcQtRAW7EwA6bSoogoAKNXLny89TZYETvnGckqPChl.

See also: Ariela Carmel, “A Particularly Painful Silence: Women’s Organizations Around the World Have Abandoned and Betrayed Us,” Calcalist, November 1, 2023, https://www.calcalist.co.il/local_news/article/b1oo3ocgp [Hebrew]. This article includes an interview with Prof. Ruth Halperin Kaddari, an expert in international law and women’s rights, who served as chair of CEDAW.

See also the letter from the Association of Rape Crisis Centers in Israel to the International Red Cross on October 10, 2023: https://drive.google.com/file/d/1Xj4DnQrHGCXG_dSdxv7xsdqhc8Z-vTPH/view; and Hamutal Guri, An Open Letter to Prof. Judith Butler, November 2, 2023, https://www.zman.co.il/433900 [Hebrew].

[5] The language of the is for both women and men and indeed there are cases of sexual violence against men, but in most cases women are the main victims of this violence. Brook Sari Moshan, Women, War, and Words: The Gender Component in the Permanent International Criminal Court's Definition of Crimes Against Humanity, Fordham International Law Journal, Volume 22, Issue 1 1998 Article 4, p. 154.

[6] Platform for action in Beijing, page 95, section 135.

Additional Protocol (II) to the Geneva Conventions, 1977 [7] Article 4.2(e): “Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.”

[8] Statute of the International Tribunal for the Former Yugoslavia, Security Council Resolution 827, UN Doc. S/RES/827 (1993); Statute of the International Tribunal for Rwanda, Security Council Resolution 955, UN Doc. S/RES/955 (1994).

[9] UN Security Council Resolution 1325, October 31, 2000, https://documents-dds-ny.un.org/doc/UNDOC/GEN/N00/720/18/PDF/N0072018.pdf?OpenElement.

[10] UN Convention on the Elimination of All Forms of Discrimination Against Women, adopted in 1979, ratified by Israel in 1991, https://www.un.org/womenwatch/daw/cedaw/.

[11] UN Women, The Fourth World Conference on Women – Beijing Declaration and Platform for Action, September 15, 1995, https://www.unwomen.org/sites/default/files/Headquarters/Attachments/Sections/CSW/PFA_E_Final_WEB.pdf.

[12] At this conference, Hilary Clinton—at the time, the first lady of the United States—delivered her historic speech in which stated that “women’s rights are human rights, and human rights are women’s rights.” https://www.pbs.org/weta/washingtonweek/video/1995/09/hillary-clinton-declares-womens-rights-are-human-rights.

[13] The resolution calls on all sides involved in violent conflicts to unreservedly respect international law regarding the protection of women and girls, as defined in the Geneva Convention, the Additional Protocols to the Geneva Convention of 1977, the Convention on the Elimination of All Forms of Discrimination Against Women from 1979 and the Additional Protocol to CEDAW of 1999, the UN Convention on the Rights of the Child of 1989 and the Additional Protocol to the Convention of 2000, and the Rome Statute.

[14] For more on the impact of this resolution, see: Yofi Tirosh and Anat Thon Ashkenazy, “Fair Representation for Diverse Women in Bodies Shaping National Policy: Further to Amendment 4 to the Equal Rights for Women Law and Resolution 1325 of the UN Security Council,” Law and Government 16 (2013), pp, 182–184 [Hebrew].

[15] Sari Aharoni, Women, Peace and Security: UN Security Council Resolution 1325 in the Israeli Context, Jerusalem: Van Leer Institute, 2015, p. 20 [Hebrew].

[16] In a 2019 statement, the International Red Cross asserted that: “The ICRC welcomes the importance that UNSCR 1325 ascribes to full respect for IHL. The ICRC is committed to the spirit of this Resolution and pledges throughout its activities, including with the African Union, to the respect that international humanitarian law (IHL) guarantees for women and girls.” https://www.icrc.org/en/document/icrc-statement-women-peace-and-security-wps.

[17] For more on the implications of defining certain acts as war crimes under international law, and the options for bringing offenders to trial, see the review on the website of the Israel Democracy Institute. https://en.idi.org.il/tags-en/51054