This piece is part of a series on Gender, Conflict, and International Humanitarian Law (IHL), co-hosted by the ICRC and Just Security. In the coming months, the series will feature contributions from a range of experts exploring the humanitarian, legal, and military implications of – and challenges raised by – the integration of a gender perspective into the interpretation and application of IHL.

The law of occupation is a highly specialized sub-division of the law of armed conflict. Its genealogy is long, and its content, like much of the law that regulates the conduct of hostilities between States, and between State and non-State actors is routine, pedantic, and highly ritualized. But despite the undulating and gendered costs of occupation, that body of law has paid scant attention to the lives of women and girls. It is high time for scholars and States to correct that imbalance. 

The Gender Imbalance of Occupation Law 

In general, occupation law has received much less scholarly and policy attention than other parts of international law regulating war. This is partly because each occupation is unique, and results from a particular set of military, geo-political, economic, and social circumstances that to some degree make each experience of occupation exceptional. In modern times, the law of occupation constitutes a highly political terrain, where even invoking the term “occupation” itself often spawns a fraught set of political disputes. Belligerent States frequently seek to extricate themselves from the application of occupation law frameworks even when they would appear to hold effective control over and dictate the governance of a conquered territory (for example the United States in Afghanistan and Syria), annex territory outright to avoid occupation constraints (for example Russia in Ukraine), or try to displace the legal framework of occupation by advancing counter-terrorism regimes which are substantially more permissive, as increasingly evidenced by the context of the Occupied Palestinian Territories. 

There are multiple sites of recent occupation which include the long-standing Moroccan occupation of Western Sahara, the occupation of Northern Cyprus by Turkey, the occupation of Iraq by the United States and its allies for a period of time, East Timor from 1975 following Indonesian invasion after Portugal relinquished colonial control, parts of the Democratic Republic of Congo by multiple States, South Ossetia, Crimea, Eastern Ukraine  by Russia, and the Occupied Palestinian Territories by Israel.

One enduring characteristic of occupation law is its lack of attention to the needs and rights of women and girls living under belligerent control. Legal Scholarship has continued to overlook the issues related to gender, broadly defined, in occupation and has largely discounted the experiences of women and girls living under occupation. This trend continues despite concentrated political and legal attention to the broader experiences of women and girls in situations of armed conflict. In almost all the major writing on the law of occupation, women and girls, and the relevance of gender analysis to understanding the limits of the law and the experience of living under occupation, has been marginalized or entirely absent. My work in recent years has sought to help fill these empirical, theoretical, and policy gaps.

The Unique Challenges of Occupation for Women and Girls 

The challenges women and girls face in situations of occupation are wide-ranging and extensive. They span from specific protective gaps in the law to ensuring their fundamental human rights are protected and advanced, particularly in long-term, transformative occupations. The challenges of both protection and rights arise in every aspect of a woman’s life living under occupation. They range from accessing education, getting married, giving birth, raising children, obtaining health care, going to work, navigating the sustained presence of military troops, seeking housing, food, and humanitarian assistance to offering violent and non-violent resistance to the occupation. For example, in the Occupied Palestinian Territories (OPT), after more than a half-century of belligerent occupation women’s lives have been negatively affected across every single one of these measures. This entrenched occupation has reshaped family life, including the ways in which women and girls’ function in their daily lives, and are profoundly constrained in their capacity to realize their most fundamental rights. Women’s lives under occupation are particularly visible in the consequences they face for defending their own rights and the rights of their families and communities under belligerent occupation. The emblematic case of Ahed Tamimi, a Palestinian teenager charged with a dozen offenses and processed through the much maligned Israeli military court system following a confrontation where she slapped and kicked an Israeli soldier standing in an area close to her her home, underscores the costs to young girls for challenging the presence or actions of military actors in the OPT.

The lack of extensive and express provisions in the 1907 Hague Convention and Geneva Conventions concerning the rights and protection of women under occupation is augmented by a lack of attention to interpretating relevant International Humanitarian Law (IHL) provisions through a gendered lens, or assuming gender neutrality in the legal norms that have been applied to situations of occupation. Specifically, while understanding that systematic inequality for women and girls before, during, and after armed conflict involves exposure to specific risks and harms, influences access to resources, and structures the ways in which women cope with and manage occupation, these insights have had little internalization in the law and practice of occupation. My work has detailed how women function as “frontliners” in situations of occupation, pressed into public space by the high costs for men (arrest, detention, targeted killing) of being exposed to the military and carry a range of burdens including the same risks to harm as men, plus the additional costs of sexualized and coercive harms.

Women’s lives under occupation do not exist in a vacuum. Patterns of exclusion, hierarchy, discrimination, and patriarchy shape their lives. Most surprising is that for many women, the patriarchy and misogyny of military occupation often has good company with the masculinity and exclusions already present in their own communities. Women thus carry the double burden of the traditional gender orders that regulate their lives within their communities expressly valuing honour and chastity while simultaneously living under an occupation regime that directly limits and constrains any advancement in women’s rights. 

Compounding these subtle alliances are the provisions of IHL, drafted in times when women did not “sit at the table,” and when their lives were not seen as relevant to the regulation of hostilities and its aftermath. When women were protected in occupation, it was through the prism of honour, as set out in Article 27 of the Fourth Geneva Convention, which provides, among other things, that “[w]omen shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.” This fragile shielding was premised on the honour of the man to whom a woman was attached. Never her own autonomous rights and wellbeing.

A Path Forward: Prioritizing Gender in Occupation Law

Contemporary occupation law must struggle with its historical baggage, as well as the persistent lack of express protection which would meet the precise needs and rights of women experiencing scores of occupations across the global conflict terrain. In particular, women who live under long-term transformative occupation, where the longevity of oppression and harm has unique and distinct effects particularly need greater protection and normative support. As I have identified elsewhere, some of that scaffolding of support can be extracted from human rights law operating in parallel with occupation law. But, we also need a profound shift in the normative interpretation and practice of contemporary occupation law. 

First, the shift would require a recognition of gendered harms and gendered effects from the facts and practices of occupation. Second, it would require reordering the central role and responsibilities of the military commander to prioritize and address gender when taking military action, so that women’s rights and needs become a central consideration when weighing of the costs of military necessity, and the lawfulness of any actions. Third, the international community including its courts and human rights experts, must also internalize harms to women and girls in transformative occupations, and hold the belligerent State to account for them. Finally, in the inner sanctum of academic research and writing it can no longer be acceptable to address occupation as a gender-free exercise. Rather, we academics have our own responsibility to strip away the myths of gender neutrality in occupation law and practice and address the universe as it really is for women and girls living under belligerent occupation.

For far too long, occupation law has ignored the experiences of women and girls, it is time to refocus the conversation and give women and girls the attention they deserve.

IMAGE: Women cross the check point from the Arab to the Israeli area of Hebron on July 18, 2022, in Hebron, West Bank. (Photo by Franco Origlia via Getty Images)