Gender-based violence (GBV) occurs throughout the world across times of war and peace, impacting women, LGBTQI people, children and men. Joanne Neenan and Professor Christine Chinkin discuss how the continuum of violence framework may influence International Law and the effect this can have on GBV interventions.
Gender-based violence (GBV) seeps into homes, onto battlefields and follows displaced persons fleeing persecution and war. Worldwide, an estimated one in three women will experience physical or sexual abuse in her lifetime. LGBTQI people are at constant risk due to the “threat” their existence poses to traditional gender norms. For International Relations scholars, a continuum of violence framework provides a key tool to expose the complexity of GBV, its structural, socio-economic root causes and the links between GBV in “war” and “peace”. How does International Law enable or undermine this framework and its potential for effective GBV policy interventions?
Structurally, International Law displays a natural bias towards constructing and maintaining an artificial war/peace paradigm. This risks obscuring connections between entrenched gender-based discrimination, inequalities and GBV and creates legal complexities in addressing a coherent response to all GBV, whatever its time or place of incidence. Nevertheless, some recent innovations in International Law show an increasing ability to recognise (if not rectify) a continuum of GBV, including through the Women, Peace and Security agenda.
Traditional Structures of International Law
International Law and its post-World War II institutions were constructed along a state-centric war/peacetime binary. Broadly, International Human Rights Law (IHRL) was conceived for “peacetime”, International Humanitarian Law (IHL) for regulating “armed conflicts” and International Criminal Law, as a primary tool to deal with war’s aftermath. Institutionally, the General Assembly and the ECOSOC Commission on Human Rights addressed human rights and the Security Council addressed the violence of war; threats to security were thus also perceived as divided in this way.
However, modern analyses of the multi-dimensional nature of conflict have coincided with shifts in strict temporal applications of International Law and institutional overlaps.
Bridging International Human Rights and International Humanitarian Law
While specific aspects of its interaction with IHL remain unclear, it is now established that IHRL applies in “war”, as well as “peace” time.
This advancement has allowed human rights bodies (including the Committee monitoring the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)) to offer a more sophisticated understanding of cycles of GBV and causality. In its General Comment No. 30 (2013), the Committee notes the “correlation” between increased “everyday” GBV, discrimination and the outbreak of conflict and its persistence “post-conflict”. Its affirmation of states’ ongoing due diligence obligations to prevent and address GBV at all times, opens up scrutiny of multiple forms and sites of GBV – from homes to communities, to detention centres. Different perpetrators are also made visible, including state forces, non-state armed groups and gangs, peacekeeping personnel and civilians. Human Rights bodies have also recognised the centrality of economic and social rights to post-conflict transformation of women’s lives and empowerment.
Yet despite these gains, the siloed and piecemeal examination of individual human rights violations by monitoring bodies fails to address or remedy the structural and systemic causes of GBV. Individual communications to the CEDAW Committee paint a startling picture of the chronic economic (and, thus, physical) insecurity of women’s lives. Non-binding recommendations acknowledge human rights have been violated, but are toothless in addressing the structural discrimination behind acts of GBV: gender inequality, patriarchal systems and unrealised economic, social and cultural rights (ESCR).
Representatives of women’s groups meeting with the UN Security Council
UNSC_Women’sGroups: By UK Mission to the UN/Lorey Campese [CC BY 2.0], via Flickr
Women, Peace and Security
A cyclical understanding of conflict and violence flows through the pillars of the Women, Peace and Security agenda (WPS), although most early resolutions refer primarily to sexual and GBV in “armed conflict”. This may stem in part from the agenda’s institutional housing: the Security Council has yet to shift from “war crisis” mode to conflict prevention, despite its mandate and legal powers. Cracks in the continuum are also informed by the P2’s (Russia and China) drive to keep “peacetime” human rights out of the Council (and scrutiny away from its sovereign territories).
Recent resolutions contain more frequent references to sexual violence in conflict and “post-conflict” situations, mirroring the scope of the Secretary-General’s reports. In sync with the Global Study on 1325, the resolutions also reaffirm the centrality of gender equality to conflict prevention and peace, recognising that women’s economic empowerment and participation in peace processes helps stabilise societies emerging from conflict. This reflects a richer normative understanding of a conflict/GBV continuum and the interdependence of security, human rights and gender equality in creating and sustaining peace.
UN Commissions of Inquiry
A more holistic application of bodies of International Law is “trending” at the UN Human Rights Council. UN Commissions of Inquiry have been created with authority to identify international crimes and violations of both IHR and IHL in conflict-affected countries, including Libya and Syria. This has offered opportunities for linking root causes of GBV in “peace” and “wartime”. Some UN reports, such as the recent one on ISIS crimes against Yazidis, have made huge strides in applying a gendered analysis of violence. However, the potential offered by a “continuum” framing is not yet fully realised. Causal links to pre-existing GBV and other human rights violations (including ESCR) and structural discrimination, are not generally addressed by such mechanisms.
International Criminal Law: categories and thresholds
Technically, International Criminal Law’s crown jewel, the International Criminal Court, does not confine its remit to “war”. It has subject-matter jurisdiction over some gender-based crimes committed during “peacetime”- crimes against humanity and genocide.
However, war crimes (including rape) can only be committed during an “armed conflict”. This inflexible category means that only certain perpetrators – combatants – may commit them and only during the defined period. Given the Court’s task of prosecuting crimes “of the most serious concern to the international community”, this may fuel concerns about hierarchies of gendered harms, potentially rendering invisible less “important”, “everyday”, acts of GBV-often connected to conflict – such as domestic violence and GBV against refugees and IDPs.
In addition, a range of heinous gender-based crimes (for instance female infanticide, honour killings and dowry-related violence) have not been specifically recognised as international crimes prosecutable by the ICC, even when committed on a widespread or systematic basis and condoned, or at least not rigorously combated, by the state.
Nonetheless, developments in the concept of transformative GBV reparations provide a potentially significant tool for exposing and redressing the underlying political, economic and cultural conditions which inform and enable GBV, writ large.
Consolidating the continuum: a joint enterprise
Despite its structural bias towards breaking the continuum, broadly, International Law and its institutions have made some progress in understanding the spectrum of GBV and helping to expose its insidious breadth. In consolidating benefits to a continuum lens and assisting better GBV interventions, a range of actors have a role to play. States and NGOs should continue to push synergies between the gender equality bedrock of WPS, CEDAW and Goal 5 of the Sustainable Development Goals, ensuring resources and political focus encompass and address the root causes and range of gendered harms. In addition, UN treaty bodies should consider issuing joint guidance on structural root causes of GBV violations against men, women and LGBTQI people. This would support progressive diplomatic discourse on gender, the new UN Independent Expert on protection against violence and discrimination on the basis of sexual orientation and gender identity and help expose the “silent crisis” of male GBV.
Lastly, the critical concepts of “transformative justice” and “transformative reparations” are gaining an increasing foothold in ICL, IHRL, UN norms and documents. Feminist international lawyers should continue to drive International Law’s transformative potential in post-conflict situations to redress gendered structural inequalities, entrenched discrimination and socio-economic, patriarchal root causes of GBV. The common goal is breaking the continuum of gendered violence, to the benefit of humankind.
About the authors
Joanne Neenan is a Research Fellow at the Centre for Women, Peace and Security. Her research examines the intersection of gender and stigma associated with conflict-related sexual violence. Joanne is on sabbatical leave from the FCO and has co-written this solely in her personal capacity. This post is not intended to reflect the views of the FCO and is entirely without prejudice to such views.
Professor Christine Chinkin is Emerita Professor of International Law and founding Director of the Centre for Women, Peace and Security.