Even before the so-called Global War on Terror, the U.S. Department of Defense’s (DOD’s) approach to international human rights law (IHRL) was the subject of substantial criticism, focused on the perception that the U.S. rejects a role for IHRL during military operations. The reality is more nuanced. The department’s Women, Peace and Security (WPS) Strategic Framework, issued last year, is a valuable illustration of this subtlety, and portends a shift in DOD’s relationship with and the interpretation and applicability of IHRL. The framework represents an understanding of IHRL that is baked into the national strategic discourse. Notably, it lays groundwork to change how the United States prepares armed forces to integrate IHRL obligations into military operations.
The U.S. government is often taken to task for its approach to IHRL mechanisms, treaty interpretations, and the credibility and function of human rights tribunals and councils. Examples are the criticism for U.S. withdrawal from the United Nations Human Rights Council (the Biden administration just announced that the U.S. will re-engage with the council) and resistance to extraterritorial application of human rights treaties. This critique highlights the scrutiny placed on the government’s and DOD’s interpretation and application of IHRL, as this body of law relates to both internal functions of the armed forces and external issues arising during military operations. The recent DOD framework, however, suggests an important development: it aggressively advances the goals of U.N. Security Council Resolution (UNSCR) 1325, creating the potential to influence the understanding of operational and tactical use-of-force authority.
The WPS Framework has an interesting history. Just over 20 years ago, the Security Council adopted Resolution 1325 on “Women, Peace and Security,” reaffirming the role women play in conflict prevention, resolution, and peacebuilding. It also called for increased participation and representation of women at all decision-making levels and increased focus on integrating gender perspectives into all efforts aimed at promoting peace and security.
Resolution 1325, although an important document by itself, works in synergy with the earlier U.N. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and The Beijing Declaration of Human Rights. The General Assembly adopted CEDAW, otherwise known as the “Bill of Rights for Women,” in 1979, creating an agenda for national action to end gender discrimination. This was followed in 1992 by adoption of General Recommendation No.19, defining violence against women as a form of gender-based discrimination. Resolution 1325 also ‘recalls’ the 1995, Beijing Declaration and its Platform for Action, which aimed to safeguard women’s human rights while advancing gender equality.
A National Action Plan
The ultimate message of these efforts remains the same to this day: States must create and then constantly improve their strategies to advance women’s human rights. Pursuant to this obligation, President Barack Obama in December 2011 released the U.S. National Action Plan for Women, Peace and Security, and issued an executive order calling for it to be implemented to, among other things, integrate and institutionalize a gender-responsive approach and women’s involvement in peace processes and decision-making. In 2016, the White House updated the plan, and in 2017, the U.S. Congress advanced the cause by passing the Women, Peace, and Security Act. The law reiterates the U.S. position of promoting women’s participation in conflict prevention and peacebuilding, and emphasizes that the United States is a “global leader in promoting” such meaningful participation. In 2017, the National Security Strategy (NSS) took aim at empowering and protecting the rights of women as a priority action, in furtherance of championing American values; and in 2019, the White House published its strategy on WPS.
The WPS strategy requires the relevant government agencies to adopt their own frameworks commensurate with the strategy, outlining how they will work towards the four lines of effort: 1) support women in decision-making processes related to conflict and crises; 2) protect women’s human rights, including protecting them from violence, abuse, and exploitation; 3) improve empowerment programs and aim for equality within international programs; and 4) encourage partners to improve women’s meaningful participation.
The secretary of defense is vested with substantial responsibility to advance this agenda. The Strategic Framework and Implementation Plan on WPS details the DOD’s implementation roles and responsibilities. The department aims to synchronize its new plan with the lines of effort and NSS through three objectives: exemplify a diverse organization; allow for women (internally and in partner nations) to meaningfully participate in security and peacebuilding decision-making; and assist partner-nation defense and security sectors to ensure the protection of women and girls’ human rights. These broad objectives will ideally be implemented by specific measures.
The language of the WPS implementation plan creates the initial groundwork for potentially important IHRL influence within DOD. For example, to achieve these objectives, DOD must “remain credible and build influence abroad…and should model and implement the WPS principles it encourages other partner nations to uphold.” Additionally, DOD “must continue modeling and advocate for the meaningful participation of women in its own workforce,” and “where the department encourages partner nations to address gender-based violence within the security sector and during deployments, it must continue to uphold the WPS principles currently reflected in its workforce.” DOD must also adjust its international programs in order “to support women’s empowerment efforts.” Effecting this change, “the Department will identify and adjust policies, programs, and processes. This may include ensuring relevant personnel receive training, as appropriate.” Finally, WPS implementation in security forces must be “consistent with U.S. core values.”
DOD Reticence on a More Robust IHRL Role in Operations
This last point reveals one of the contradictions of the historic DOD reticence to acknowledge a more robust IHRL role in military operations: like the WPS, broader fundamental IHRL principles are consistent with U.S. core values. So if the WPS implementation plan essentially outlines ways that human rights must play a more meaningful role during military operations, that could help human rights play a more meaningful role within the military. If nothing else, the application of this framework to current plans creates an increased focused on human rights, and thus IHRL, ideally influencing a broader recognition of the value of embracing this branch of international law.
Furthermore, gender-based violence (GBV) covers more than just sexual violence and sexual harassment, and is in any form a violation of IHRL. So including a reference to GBV fosters the use and acceptance of the lexicon within the DOD. The overarching theme found in a GBV academic course, for example, consists of defining gender, describing the links between gender and violence, and the methods of preventing such violence.
Although the department’s WPS plan does not overtly change the current DOD approach to the role of human rights in military operations, the U.S. military must now tailor GBV training to the force. This, in turn, should require integration of IHRL principles into operational training, planning, and execution.
Thus, WPS integration may contribute to a revised approach to training on all human rights treaties and obligations that may apply during such operations, a reality that is becoming increasingly invalid to deny. The mention of gender-based violence may turn out to be the catalyst for this change.
Pre-deployment briefs on rules of engagement provide a useful example, as they are principally focused on the authority to use force at the tactical and operation levels. It seems self-evident that any land-based operation will require interaction between U.S. forces and women, indicating that the rights of women and prohibitions against gender-based violence require integration into both rules of engagement and all phases of training and operational execution.
This reinforces the view that it is increasingly untenable to assert that such uses of force do not implicate fundamental IHRL obligations, including the prohibition against gender-based violence. To achieve the end state of the Strategic Framework and Implementation Plan on WPS, this relationship between mission-specific rules of engagement and preventing GBV is deserving of greater attention and analysis. Thus, while subtle, the WPS plan will ideally result in a more nuanced and credible DOD approach to the role of IHRL in relation to military operations, as reflected in mission-specific rules of engagement.
As illustrated above, the U.S. refinement of its approach in implementing UNSCR 1325 will contribute to a more nuanced relationship between DOD and human rights obligations. Although the department’s WPS plan may not revolutionize this relationship, it does lay the groundwork for a more robust human rights practice in the U.S military and certainly for increased attention to the role of human rights in military culture and operations.
To be sure, this transformation may not be quick—like other national level policies, it serves to slowly encompass, over time, a more thorough and thoughtful human rights practice. In the ever-increasing realm of coalition military operations, where strategic legitimacy is largely defined by actual and perceived respect for international law, this is a positive second-order consequence of these initiatives.
(The views expressed are those of the author and do not necessarily reflect the official policy or position of the U.S. Army, the Judge Advocate General’s Corps, the Department of Defense, or any other agency of the U.S. government.)
IMAGE: Sgt. Forrest Huckabey from Neodesha, Kansas with the U.S. Army’s 2nd Battalion 87th Infantry Regiment, 3rd Brigade Combat Team, 10th Mountain Division stands guard in front of a billboard that encourages women to vote in Afghanistan’s April 5, 2014 presidential election during a patrol outside of Forward Operating Base (FOB) Shank on March 29, 2014 near Pul-e Alam, Afghanistan. The primary mission of soldiers with the 10th Mountain Division stationed at FOB Shank was to advise and assist Afghan National Security Forces in the region. (Photo by Scott Olson/Getty Images)