Gender, Conflict and International Humanitarian Law: A critique of the 'principle of distinction'

Description

This book conducts a gendered critique of the ‘principle of distinction’ in international humanitarian law (IHL), with a focus on recent conflicts in Africa. The ‘principle of distinction’ is core to IHL, and regulates who can and cannot be targeted in armed conflict. It states that civilians may not be targeted in attack, while combatants and those civilians directly participating in hostilities can be. The law defines what it means to be a combatant and a civilian, and sets out what behaviour constitutes direct participation. Close examination of the origins of the principle reveals that IHL was based on a gendered view of conflict, which envisages men as fighters and women as victims of war. Problematically, this view often does not accord with the reality in ‘new wars’ today in which women are playing increasingly active roles, often forming the backbone of fighting groups, and performing functions on which armed groups are highly reliant. Using women’s participation in ‘new wars’ in Africa as a study, this volume critically examines the principle through a gendered lens, questioning the extent to which the principle serves to protect women in modern conflicts and how it fails them. By doing so, it questions whether the principle of distinction is suitable to effectively regulate the conduct of hostilities in new wars. This book will be of much interest to students of international law, gender studies, African politics, war and conflict studies, and international relations. Cover Half Title Title Page Copyright Page Dedication Table of Contents List of acronyms 1 Introduction Overview of the research Central arguments Methodology and approach Breakdown of chapters Notes Bibliography Books and articles Cases Treaties Other policy documents Website 2 The principle of distinction A brief historical overview The principle of distinction The principle of distinction in international armed conflict Creating the categories: civilians and combatants The principle of distinction in non-international armed conflict Organised armed groups Notes Bibliography Books and articles Cases Treaties Other policy documents Websites 3 Women in conflict in Africa The diverse landscape of armed conflict in Africa A brief history Actors in African conflict New wars Women in new wars IHL in new wars Women in combat The scope for female participation in different types of conflicts Women in combat: the international picture Women in war in Africa Female fighters in the post-conflict period Notes Bibliography Books and articles Cases Treaties Other policy documents Media articles and websites 4 Gender and international humanitarian law A brief introduction to feminist theory Masculinity and militarism Views about women in combat Feminist critiques of International Humanitarian Law IHL’s gendered origins Protective provisions for women of limited use Formal equality in inherently unequal situations IHL’s focus on women as victims or mothers; the dangers of perpetuating stereotypes A gendered hierarchy implicit in the law The gendered nature of civilian immunity Proportionality and military necessity Feminist challenges to the legal situation International Criminal Law Women, peace and security Notes Bibliography Books and articles Cases Treaties Other policy documents Media articles 5 The divide between international and non-international armed conflicts: a precursory step to the application of the principle of distinction History of the divide between international and non-international conflicts Problems in the regulation of non-international armed conflicts What are IACs and NIACs in terms of the law? International armed conflicts Non-international armed conflicts The threshold of violence Distinguishing IACs and NIACs in practice Internationalised conflicts Transnational conflicts International terrorism The merging of the laws of IAC and NIAC Customary international humanitarian law International criminal law International human rights law Should the IAC/NIAC divide be retained? IAC/NIAC and the principle of distinction Notes Bibliography Books and articles Cases Other policy documents Media articles 6 Applying the principle of distinction to women in African war Women in state armed forces Women in regular armed forces/armies Women in irregular armed forces, ‘belonging to’ a state party Women in non-state armed groups Participation by those within the civilian population Conclusions from applying the law Notes Bibliography Books and articles Cases Treaties Other policy documents Media articles and websites 7 Does the principle of distinction serve women in modern conflict? The principle of distinction’s varied impacts on women The principle of distinction perpetuates stereotypes about women and victimhood Voluntariness Women, targeting and the principle of distinction The principle of distinction fails to protect women from those in their own groups Prisoner of war status and women Distinction and the post-conflict period Does the principle of distinction serve women? Notes Bibliography Books and articles Cases Treaties Other policy documents Media and websites 8 Conclusions The central themes of this work Rethinking the principle of distinction The way forward Implications of this research Notes Bibliography Books and articles Treaties Policy documents Index