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Women, human rights and international humanitarian law

Published online by Cambridge University Press:  23 November 2010

Judith Gardam
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Extract

The development in the last 50 years of the principles that comprise human rights law has had a major impact on international humanitarian law and indeed on international law generally. In more recent years, the movement for recognition of the equal rights of women has been exerting its own influence on human rights law and to some effect. In 1979, for example, the international community adopted the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to which 155 States are now party. Consideration is currently being given to the adoption of an Optional Protocol that will allow for individual and group complaints to be brought before the CEDAW Committee. Governmental and non-governmental organizations have increasingly focused on women's human rights. As a result, a wide range of studies, reports and recommendations on various aspects of the issue is available. The topic of women is thus firmly established on the international human rights agenda.

Type
50th anniversary of the Universal Declaration of Human Rights: Human rights and international humanitarian law
Information
International Review of the Red Cross (1961 - 1997) , Volume 38 , Special Issue 324: 1948—1998 Human rights and international humanitarian law , September 1998 , pp. 421 - 432
Copyright
Copyright © International Committee of the Red Cross 1998

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References

1 See, for example, Robertson, A. H., “Humanitarian law and human rights”, in Swinarski, C. (ed.), Studies and essays on international humanitarian law and Red Cross principles in honour of Jean Pictet, ICRC/Martinus Nijhoff, Geneva/The Hague, 1984, p. 793.Google Scholar

2 For an overview of the achievements of the last decade, see Chinkin, C., “Feminist interventions in international law: Reflections on the past and strategies for the future”, Adelaide Law Review, Vol. 19, 1997, pp. 15–18.Google Scholar

3 For a discussion of the situation in relation to human rights in times of armed conflict, see Dinstein, Y., “Human rights in armed conflict: International humanitarian law”, in Meron, T. (ed.), Human rights in international law: Legal and policy issues, Clarendon Press, Oxford, p. 345.Google Scholar

4 See the statement by Renée Guisan, head of the ICRC delegation to the Fourth World Conference on Women, Beijing, and Article 136 of the Beijing Platform for Action in Fourth World Conference on Women, Action for Equality, Development and Peace, Beijing Declaration and Platform for Action, UN Doc. A/Conf. 177/20 (1995) (hereafter Beijing Platform for Action).

5 Ibid. and see Harvard Study Team, Health and welfare in Iraq after the Gulf Crisis, Chapter 9, 1991.

6 The feminization of poverty was a key area of concern at the Beijing Conference, see Beijing Platform for Action, paras. 47 and 48, supra (note 4).

7 See ICRC (ed.), Women and war, 1995.

8 See, for example, Article XLIV of the Lieber Code: Instructions for the government of armies of the United States in the field, General Orders No. 100, April 24, 1863, reprinted in L. Friedman, The laws of war: A documentary history, 1972, p. 158.

9 See Control Council Law No. 10 of 1945, Control Council for Germany, Official Gazette, 31 January 1946, reprinted in Friedman, ibid. p. 908.

10 See generally Chinkin, C., “Rape and sexual abuse of women in international law”, European Journal of International Law, 1994, p. 326.CrossRefGoogle Scholar

11 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Geneva Convention relative to the Treatment of Prisoners of War; Geneva Convention relative to the Protection of Civilian Persons in Time of War (hereafter referred to as the Fourth Geneva Convention), of 12 August 1949. For a description of the system of international humanitarian law in relation to women generally, see Tabory, M., “The status of women in humanitarian law”, in Dinstein, Yoram (ed.), International law at a time of perplexity, 1989, p. 941 Google Scholar ; and Krill, F., “The protection of women in international humanitarian law”, IRRC, No. 249, November-December 1985, p. 337.CrossRefGoogle Scholar

12 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977, and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977.

13 See Articles 50 and 132 of the Fourth Geneva Convention.

14 See Gardam, J., “Women and the law of armed conflict”, International and Comparative Law Quarterly, Vol. 46, 1997, p. 74.CrossRefGoogle Scholar

15 Draper, G. I. A. D., “Human rights and the law of war”, Virginia Journal of International Law, Vol. 12, 1972, p. 336.Google Scholar

16 See Resolution XXIII, “Human rights in armed conflict”, adopted by the International Conference on Human Rights, Tehran, 12 May 1968.

17 See generally, Gardam, J. G., Non-combatant immunity as a norm of international humanitarian law, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1993.Google Scholar

18 See, for example, Bunch, C., “Women's rights as human rights: Towards a revision of human rights”, Human Rights Quarterly, Vol. 12, 1990, p. 486 CrossRefGoogle Scholar ; and Charlesworth, H., “What are women's human rights?”, in Cook, R. (eds), Human rights of women: National and international perspectives, 1994, p. 58.CrossRefGoogle Scholar

19 See Chinkin, supra (note 2).

20 See Article 38 of the Vienna Declaration and Programme of Action, UN Doc. A/CONF. 157/24 (Part 1), 13 October 1993.

21 For a description of what amounts to “mainstreaming”, see UNHCR, Policy on refugee women, and UNHCR, Guidelines on the protection of refugee women, 1991, pp. 5–7. For an account of the initiatives taken to achieve this end, see generally Gallagher, A., “Ending the marginalization: Strategies for incorporating women into the United Nations human rights system”, Human Rights Quarterly, Vol. 19, 1997, p. 283.CrossRefGoogle Scholar

22 Declaration on the Elimination of Violence against Women, UN GA/Res/48/104, 20 December 1993, preamble, para. 7 and Art. 2.

23 See R. Coomaraswamy, Report of the Special Rapporteur on violence against women, its causes and consequences, UN Doc. E/CN.4/1998/54.

24 See Preliminary Report of the Special Rapporteur on the situation of systematic rape, sexual slavery and slavery-like practices during periods of armed conflict, UN Doc. E/CN.4/Sub.2/1996/26, 16 July 1996.

25 See Chinkin, supra (note 2).

26 See UNHCR, Policy on refugee women, supra (note 21) and UNHCR, Sexual violence against refugees: Guidelines on prevention and response, 1995.

27 See, for example, Human Rights Watch (Helsinki Watch), War crimes in Bosnia-Herzegovina, 1993, pp. 18 Google Scholar , 163–186; Final report of the Commission of experts established pursuant to Security Council Resolution 780, UN Doc. S/1994/674 (considering the issue of rape and sexual assault at paras. 58–60 and 232–253); Human Rights Watch, Global report on women's human rights, 1995 (at paras. 100–138 CrossRefGoogle Scholar in relation to sexual assault of refugees and displaced women); Human Rights Watch, Shattered lives: Sexual violence during the Rwandan genocide and its aftermath, 1996.Google Scholar

28 See, for example, E/RES/1991/19 of 30 May 1991; E/RES/1992/16 of 30 July 1992; E/RES/1993/15 of 27 July 1993; and E/RES/1995/30 of 25 July 1995. See also ECOSOC resolutions dealing with women and children in Namibia, and women and children living under apartheid.

29 See Krill, supra (note 11), p. 356.

30 Ibid., p. 357.

31 ICRC, Update on Aide-Memoire of 3 December 1992. This was a view shared by a number of States, see Meron, T., “Rape as a crime under international humanitarian law”, American Journal of International Law, Vol. 87, 1993, p. 427.CrossRefGoogle Scholar

32 See Final Report of the Commission of experts established pursuant to Security Council Resolution 780, supra, (note 27).

33 See R. Coomaraswamy, supra (note 23).

34 Ibid.

35 See Prosecutor v. Tadic, Decision on the Prosecutor's motion requesting protective measures for victims and witnesses, UN Doc. IT-94–1-T (10 August 1995). See also Chinkin, C., “Due process and witness anonymity”, American Journal of International Law, Vol. 91, 1997, p. 75.CrossRefGoogle Scholar

36 See Leigh, Monroe, “The Yugoslav Tribunal: Use of unnamed witnesses against accused”, American Journal of International Law, Vol. 90, 1996, p. 235.CrossRefGoogle Scholar

37 Chinkin, supra (note 35), pp. 78–79.

38 Final Declaration of the International Conference for the Protection of War Victims, para. I.3, reprinted in IRRC, No. 296, September-October 1993, p. 377.

39 Resolution 2(B), reprinted in IRRC, No. 310, January-February 1996, p. 63.

40 See ICRC, Women and war, 1995.