Emerging Voices: The Rights of Women in Armed Conflict

by Jens Iverson

[Jens Iverson is a researcher at the Law Faculty of the University of Leiden.]

Imagine there is a potential peace agreement that would end a civil war, but only at the cost of leaving portions of the country in question in the hands of a group that systematically violates the human rights women and girls.  The government is backed by a foreign state who, in the past, effectively occupied the country.  Some policy considerations are obvious – continued armed conflict can be devastating to most involved, but resolving the armed conflict with a solution that denies at least half of the population their rights is deplorable.  But is this a purely pragmatic, policy question?

In this post, I assert that foreign states may be obliged to push for peace agreements that protect the rights necessary for a modern democracy, not only on the basis of a general concern for human rights but also based on a more ancient legal and ethical tradition.  The obligation emerges from a source one might not expect—the logic behind the exception to the prohibition of transformative occupation, and ultimately on self-interest.

Traditionally, radical transformation of the laws of occupied territory was prohibited.  There is, however, an exception to this rule, dating at least back to Immanuel Kant.  An occupying power is not obliged to protect a legal system that is itself geared towards war—it is acceptable to create a less war-like constitution for an occupied nation.  This is not a human rights argument, nor an argument based on sparing a civilian population, nor a purely pragmatic public policy argument.  Rather, the legitimate transformative role of an occupying power responds to the traditional justifications for going to war (satisfying the justa causa of the war).  If the war is being fought in response to aggression that has disrupted international peace, then the justa causa may be to restore a system of international peace.  But what does that have to do with the rights of women that would be protected in a modern democracy?

The general modern form of the hypothesis that democracy, including non-discrimination, is important for peace is the “democratic peace hypothesis.”  This hypothesis states that as the democratic nature of the two states increases, the probability for substantial armed conflict between those states during a given year decreases.  If this hypothesis is accurate, and should protecting and promoting the rights of women be an important component of the democratic nature of the state, then promoting and protecting the rights of women is not only important for its own sake but also because of the positive correlation with the sustainability of the peace.

Considered under this analysis, protecting the rights of women is not a side-issue or epiphenomenon that can be considered once the “primary” issues of national security and inter-state relations are resolved—rather such protection can be determinative as to whether the war was justified in the first place.

There are, of course, strong reasons to protect the rights of women based purely on a human rights analysis, and powerful points to be made in favor of protecting women’s interests purely on ethical and humanitarian grounds.  The argument in this post is not intended in any way to undermine such arguments or impugn their moral force.  It does suggest that there is a supplementary analysis that should be helpful in addressing the gap between the ideal of respect and promotion of women’s human rights in the transition to peace and the reality.  This supplementary analysis requires an analysis of the moral and legal justification of the foreign military intervention as a whole.  It is essentially rooted in a traditional framework for public international law-the legal relationship between sovereign states.

Protecting the rights of women during the transition out of armed conflict is critical for establishing a just and sustainable peace.  This is not a new insight.  The UN Security Council has passed several resolutions on women, peace, and security (UNSC Res. 1325 (2000), 1820 (2008), 1888 (2009), 1889 (2009), and 1960 (2010)). These resolutions provide evidence of the seriousness of the issue, and provide but have proven unsuccessful in fully addressing the problem.  Women are frequently victimized during armed conflict, underrepresented at the peace table, and disserved by the peace.

So why is this need not being fully addressed?  One difficulty may be the foundations upon which efforts to protect the rights and interests of women are typically built.  During conflict, the main foundation is International Humanitarian Law.  During early peace, there is an increasing role for human rights law and public policy.  International Humanitarian Law has numerous protections for civilians generally and in certain cases for women in particular, but many of those interests are short-term, often simply avoiding death or damage.  Human rights concerns and public policy concerns may be at their weakest when the terms of the new peace are being resolved.  There is a need for an additional rationale that would align the long-term self-interest of powerful actors (such as foreign states) with the self-interest of those placed in an unequal situation by systematic discrimination.

This logic does not, of course, limit itself to women.  Protecting the human rights of children, religious minorities, ethnic minorities, and other minorities is important if the armed intervention is to be justified, and the peace is to be democratic and durable.

Sometimes grasping an immediate, imperfect peace will be ethically and legally preferable to ongoing armed conflict, even if continued conflict comes with the hope of a better peace later.  There is a rationale to say that a foreign state should be reluctant to get in the way should local elites desire peace.  But too often, the foreign state has been too ready to consolidate a peace around a new government that does not respect human rights.  Foreign states, if they continue to have any role, should weigh the obligations they have based on their prior acts, and not jump too quickly to compromise the rights of women.

http://opiniojuris.org/2014/07/30/emerging-voices-rights-women-armed-conflict/

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