[Just Security is publishing a series on the ICRC’s updated Commentaries to the Third Geneva Convention on Prisoners of War (2020). This GCIII Commentary series is published in collaboration with the ICRC’s Humanitarian Law & Policy blog and EJIL: Talk. The series editors for Just Security are Adil Haque and Ryan Goodman.]
An area of marked development in international law since the publication of the 1960 Commentaries on the Third Geneva Convention on Prisoners of War (GCIII) is the protection of the rights of women. Within the field of international humanitarian law (IHL) itself, these changes are reflected in specific provisions of the Additional Protocols and in international criminal law jurisprudence on the elements of crimes. Nevertheless, progressive development on women’s rights in conflict are more pronounced in other areas of law, namely, international human rights law (especially the entry into force of the UN Convention on the Elimination of All Forms of Discrimination Against Women); codification of international criminal law, in particular the criminalization of a range of gender- and sexual harm through the Rome Statute; and the UN Security Council’s adoption of a dedicated thematic agenda of resolutions on Women, Peace and Security. Thus, by contrast with human rights law, international criminal law and the UN Security Council, IHL law has offered much more limited scope for developments in women’s rights in recent decades. Outside of jurisprudential developments in the criminal elements of IHL, the focus on improved operational responses – for example through the ICRC’s landmark Women Facing War (2001) report and the later Operational Guidance Document (2004) – has been the primary way in which IHL has evolved to respond to both greater public and policy awareness of the gendered impacts of conflict and legal developments in cognate regimes. Together, these dynamics heighten the significance of the updated Commentaries for women’s rights in conflict.
This article focuses on four developments in the updated Commentary to GCIII to illustrate broader gender shifts of significance, first, the shift in underpinning gender assumptions, in particular concerning the traditional assumption of the non-combatant status of women; second, the shift in gender norms embodied in the Commentary away from the traditional alignment of women with modesty and weakness; third, the much clearer and more comprehensive guarantee that female detainees will not be subjected to sexual violence; and fourth, women’s participation in relevant decision-making.
First, the updated Commentaries evince an important shift in underpinning gender assumptions, in particular concerning the assumption of female non-combatant status implicit and explicit through much of Geneva law, the 1960 Commentary, and indeed the ICRC’s 2001 Women Facing War report. The Women Facing War report, for example, commences the discussion of detained female combatants with the observation that women are less likely to be on frontline and thus less likely to be captured (page 162). Likewise, regarding women held for security reasons, the report notes that security detainees are less likely to be female than male, due to lesser (perceived) security risk posed by women (page 163). By contrast, the updated Commentary adopts a starting point that
a significant number of women were involved in the First World War. Since then, the participation of women in armed conflicts has grown, in terms both of the number of women serving in armed forces and in the variety of roles they assume on and off the battlefield. Women are increasingly involved in close combat functions on the front line, where there is an increased risk of capture (paragraph 1679).
The significance of this shift in underpinning gender assumptions is more than symbolic. It has material practical significance for the efficacy and comprehensiveness of the Commentary’s guidance to belligerent actors. For example, whereas the 1960 Commentary provides scant elaboration of the article 25 requirement that separate dormitories be provided for women prisoners of war, the 2020 Commentary provides extensive detail of the full implications of this requirement and how it must be met in practice (paragraphs 2099-2104), including detailed specification on accommodating infants and young children with their parents.
Second, the new Commentary reflects a marked shift in gender norms away from the traditional alignment of women with modesty and weakness. This shift is evident when considering article 14 of the GCIII, which provides that:
Prisoners of war are entitled in all circumstances to respect for their persons and their honour… Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men.
The 1960 Commentary section addressing article 14’s provision for “the special position of women” must appear now as amongst the most anachronistic of the earlier Commentary. It refers to “the weaker sex” and goes on to explain “the regard due to women” according to the three considerations: “(a) weakness; (b) honour and modesty; (c) pregnancy and childbirth.” The contrast with the language and framing of the new Commentary is dramatic, namely:
Today, there is a deeper understanding that women, men, girls and boys may have specific needs, capacities and perspectives linked to the different ways armed conflict and detention may affect them. In light of these developments, the specific mention of the protection of women in Article 14(2) is not to be understood as implying that women have less resilience, agency or capacity within the armed forces, but rather as an acknowledgement that women have a distinct set of needs and may face particular physical and psychological risks. (paragraph 1692)
Third, the updated Commentary includes much more detailed articulation around the guarantees that female detainees will not be subject to sexual violence. For example, article 13 guaranteeing humane treatment to women makes no express provision on women or gendered harm, and likewise, the 1960 Commentary is silent on women and sexual violence. The 2020 Commentary, by contrast, has a dedicated discussion of what the article means:
While Article 13 does not explicitly prohibit sexual violence, it does so implicitly because it establishes an obligation of humane treatment and requires protection against violence or intimidation. The term ‘sexual violence’ is used to describe any act of a sexual nature committed against any person under circumstances which are coercive. Situations of detention can constitute coercive circumstances, as can fear of violence, duress, psychological oppression or abuse of power. Prisoners of war can therefore be at particular risk of such coercion. Women and young prisoners, including children, are at high risk of being the target of sexual violence. Practice has also shown that men in prisoner-of-war camps are also subjected to rape and other forms of sexual abuse, such as being stripped naked in public, subjected to genital violence or forced sterilization (paragraph 1578).
In terms of the broader significance of the overall updated Commentary, it is hard to dispute that the most significant changes are likely to be Common Article 3 and the application of this “mini Convention” to the scope of application, requirement of humane treatment, care for the wounded and sick, humanitarian activities, and criminal aspects and compliance, for detainees in non-international armed conflict. Likewise, these updates have enormous significance for female detainees and the prohibition of sexual violence. In particular, the elucidation of the obligation of humane treatment, and its application to sexual violence, is both comprehensive and significant:
While common Article 3 does not explicitly prohibit sexual violence, it does so implicitly because it establishes an obligation of humane treatment and prohibits violence to life and person, including mutilation, cruel treatment, torture and outrages upon personal dignity (paragraph 732).
Further, the Commentary explains that “the prohibition of ‘outrages upon personal dignity’ contained in common Article 3 covers acts of sexual violence” (para 741); and that “sexual violence will often fall within the prohibition of ‘violence to life and person’ and has been found to amount to torture, mutilation or cruel treatment.” (para 738). Also of value is the clear statement that despite gender specificity in the some provisions prohibiting sexual violence (such as GCIV, article 27(2)), “today, however, the prohibition of sexual violence is recognized to encompass violence not only against women and girls, but any person, including men and boys” (para 736). Finally, the Commentary provides a useful summary of underpinning international criminal law jurisprudence that has established these rules (paragraphs 732-743).
Fourth, the updated Commentary addresses the central concern of many gender equality actors in conflict-settings, namely the importance of women’s participation in decision-making. Women’s participation in conflict prevention, conflict resolution and peacebuilding has been an area of substantial women’s mobilization and normative development since the 1960 Commentaries, in particular in more recent years with the Security Council’s adoption of Resolution 1325 (2000) on Women, Peace and Security which promotes the increased participation of women in all decision-making levels for the prevention, management and resolution of conflict. While this emphasis on women’s participation has a treaty basis in human rights law through CEDAW articles 7 and 8, and under international criminal law through some gender representation requirements of the Rome Statute (for example, article 36(8)(a)(iii)), it has traditionally been difficult to point to parallel participation obligations for women under IHL. For example, Judith Gardam’s creative reliance on the GCIII requirement that women detainees must be under immediate supervision of women to argue that all decision-making that involves women must include the participation of women, is a useful illustration of how tenuous such claims were under Geneva law and the 1960 Commentary. This inauspicious backdrop makes the explicit attention to women’s participation in decision-making in the new Commentary even more notable. GCIII article 79-81 are all addressed to issue of “Prisoner of War Representatives.” Article 79 sets out:
In all places where there are prisoners of war, except in those where there are officers, the prisoners shall freely elect by secret ballot… prisoners’ representatives entrusted with representing them before the military authorities, the Protecting Powers, the International Committee of the Red Cross and any other organization which may assist them…
Whereas the 1960 Commentary on article 79 does not mention women, the 2020 Commentary dedicates a discussion to “women prisoners’ representatives” accordingly:
The practice of some States is to enable women prisoners of war to elect a woman representative from among their number, unless the (principal) prisoners’ representative is a woman. Under this approach, the woman prisoners’ representative is authorized to communicate directly with the senior woman among the camp staff but is otherwise subordinate to the (principal) prisoners’ representative. The Detaining Power may wish to consider introducing the practice of a woman prisoners’ representative. Either way, the representative must take into account the particular needs and further the well-being of all the prisoners of war, men and women (paragraph 3468, emphasis added).
The updated Commentary thereby moves IHL into concert with cognate regimes of international law in the articulation of a requirement (if narrowly-prescribed) on the participation of women in decision-making.
In my new book, Women’s Rights in Armed Conflict under International Law, one of my central conclusions is that women’s organizations and feminist civil society – which have been so central to progressive development of women’s rights protections under international criminal law, human rights law and through the UN Security Council – need to more proactively and deliberately engage with IHL. Unlike the other legal regimes listed, for which dedicated international and local NGOs abound, there is very limited dedicated feminist activity specifically and exclusively on IHL, and the consequences are meaningful: IHL compliance; improving compliance by non-state armed groups; conflict thresholds and IHL application; ensuring access of humanitarian organisations; enhanced support for tracing of the missing and disappeared – all issues with manifold material implications for the rights of women – go under- and un-addressed by feminist advocacy and scholarship in international law. The ICRC has not always been the most receptive partner for feminist engagement, as set out for example in the position articulated in the 2004 Operational Guidance Document on Addressing the Needs of Women that “the ICRC is not mandated to engineer social change with respect to the status of either sex in the cultures in which it works” (pages 7-8). The Guidance Document goes on to state:
as a neutral, impartial and apolitical institution, it is not the role of the ICRC to engage in controversies of an ideological, religious or political nature, such as the debate about gendered power relations. Highlighting social inequalities in terms of rights and resources and pushing to establish a balance in power relations is a political act incompatible with the neutrality principle (page 8).
However, the updated Commentary on GCIII are a clear signal of the progressive development of the law and the essential role of the ICRC in such development. In addition – and in tandem – to the invaluable work of updating the Commentaries, it would be timely and important to see the ICRC comprehensively update the 2001 Women Facing War Report, and to use that process as an outreach opportunity to wider feminist constituencies working in gender and conflict.
Elizabeth Stubbins Bates, Geneva Convention III Commentary: Unpacking the Potential of “Ensure Respect” in Common Article 1
Tim Wood, GCIII Commentary: Removing ambiguity on the treatment of prisoners of war
Steven Hill, Geneva Convention III Commentary: Implementing POW Convention in Multinational Operations
Keiichiro Okimoto, The United Nations and the Third Geneva Convention
Kubo Mačák, GCIII Commentary: If I can’t feed you, do I have to let you go?
Jean-Marie Henckaerts, “Commentary: ICRC unveils first update in sixty years.”
Cordula Droege, GCIII Commentary: ten essential protections for prisoners of war
Jemma Arman, GCIII Commentary: protecting the honour of prisoners of war
Eden Lapidor, New Developments in ICRC Commentaries to the POW Convention