In recent decades there has been increased and much needed attention to the harms women experience in armed conflict. This has included developing multiple specific crimes under the rubric of international criminal law to address sexual violence in armed conflict, judicial proceedings addressing rape and other forms of sexual violence by ad hoc criminal tribunals and the International Criminal Court (ICC), and the Women, Peace and Security (WPS) agenda launched in 2000 by United Nations Security Council Resolution 1325. This agenda has the laudable aim of mainstreaming gender in all aspects of conflict prevention, management, and resolution. Notably, Resolution 1325 and subsequent WPS resolutions have stressed preventing sexual violence in conflict through accountability and political condemnation.

Positively, this normative and institutional attention has led to increased knowledge of the scale, scope, and extent of sexual and gender-based violence experienced by women during armed conflict. And while the international community should positively affirm the importance of addressing rape in war, the overwhelming focus on penetrative sexual violence (rape) forces attention away from other serious gender-based harms that are widely experienced by women during hostilities. It is critical to evaluate how the severity and cost of this often unseen violence causes the same or greater brutality to women’s bodies and lives, a proposition that few policymakers or States have been prepared to take seriously even as they “talk the talk” about “protecting” women in war.

In fact, a (necessary) focus on sexually violated women displaces and ignores obstetric harm to pregnant, birthing, and post-partum women and girls in war. Recognition and protection are not mutually exclusive trade-offs, there is ample room to address both. It should be possible to advance women’s protection from multiple sources of violence and prioritize the obligations of protection when women are pregnant, give birth, and post-partem. But the reasons for why this rarely happens offer a lesson in the ways that one set of harms (sexual) occludes, excludes, and undermines attention to other (reproductive, obstetric and maternal) harms in war. In particular, given the unique protections set out in the Geneva Conventions and Additional Protocols for maternity, newly born, and young children under the law of war, it is extraordinary that the international community has devoted so little effort to hold States and combatants accountable for their failure to implement these specific obligations. It is also an indictment of the selectiveness of the WPS agenda that while rape in armed conflict makes headlines obstetric violence against women and girls generally does not.

More intangibly, the failure to mobilize shame for targeting violations that make meaningless the protection of women giving birth in destroyed hospitals and clinics; to prioritize access to maternity medications (pregnancy basics like magnesium sulfate for preeclampsia and emergency delivery kits); and to accept miscarriage as an inevitable outcome that follows from targeting decisions in high-density civilian areas (and thus part of the calculation of civilian harm) coldly indicates that protection for maternity is a low-to zero priority for States currently engaged in hostilities. It is a stark reminder that the maternity of women in some conflict zones and the dignity of the children they bear has less value than in others.

Protection of Women and Children under the Law of War

It is well-settled law of war doctrine that women and children hold special protections which trace back to the 1949 Geneva Conventions. These protections include the basic premise that persons will not be treated with “adverse distinction,” including on the basis of sex. This concept of adverse distinction is essentially a non-discrimination clause in the law of war which prohibits the discrimination on multiple grounds. In parallel, complimentary protection exists for women, under Geneva Conventions I and II art. 12; and Convention III, art. 14, which provide that women must be treated “with all consideration due to their sex.”  I have taken issue with this patriarchal and honor-based language elsewhere, but even as I acknowledge that discomfort, it should not take us away from the concurrent need to recognize that aspects of conception, pregnancy, delivery, birth, and post-delivery create inevitable vulnerabilities for women and children.

To that end, States through treaty and custom have determined that privileged treatment can be accorded in certain circumstances to women, and to the children they give birth to (Geneva Convention III, Article 16, and Geneva Convention IV, art 27). Expectant mothers in particular have long been the formal objects of protection under international humanitarian law, from Additional Protocol I which prioritizes their consideration and early release from internment (art. 76), to the law that applies specifically to occupied territory where Geneva Convention IV requires expectant mothers to be given additional food based on their physiological needs (art, 89).

The Situation in Gaza

In the Gaza conflict – which is characterized by intense food insecurity and the failure to ensure an adequate supply of impartial humanitarian assistance – we are clearly a long way away from “extra” food for pregnant women, and instead women and children suffer famine along with an inadequate water supply to the entire civilian population. Given the forced displacement of almost the entire civilian population in Gaza, it may be a surprise Geneva Convention IV (art 127)  specifies that women shall not be transferred if the journey will be “seriously detrimental to them.” And while art. 127 recognizes imperative needs of security, producing mass insecurity which is not proportionate to any expected military advantage, would not be justified under the Convention. Moreover, Convention IV specifies the obligation to provide medical care for pregnant women  (art 91), a practice that has clearly not been honored with over 600 military attacks recorded on hospital and medical facilities by the United Nations in Gaza in early January, and ongoing targeting of medical facilities since then. The destruction of the capacity to provide adequate intensive and operative care for birthing mothers clearly runs afoul of the parties’ clear humanitarian law obligations, rooted historically in the recognition of the vulnerability and necessity of birth for women throughout all wars and throughout all time. It must be said, that reproductive and obstetric violence for Palestinian women is not new, and scholars and experts have long-documented the scale of such violence as women living under occupation navigate birth and maternity under the most arduous circumstances. But the scale of civilian harm, and its consequences for pregnant, nursing, and new mothers is of an unprecedented scale in Gaza.

I also equally recognize that because hostage taking, including of mothers and children, constitutes a fundamental violation of international law and adequate care until release of those abducted is an evident corollary of this heinous act. Regrettably, intense focus on affirming the absoluteness of the hostage prohibition has meant that micro “regulation” of hostage well-being is missing from the law and must be “read-in” from other universal obligations for both non-state and State actors in armed conflict. A rationale for this doctrinal gap is likely that to specifically regulate the obligations of hostage takers would be in some way to accept hostage taking as a tolerated practice, and such regulation offends the “sanctity” of the prohibition. But, the absence of specific obligations leaves hostages vulnerable to further harms when they are denied medical treatment, and not given adequate access to food, water, and other essentials for survival.

I have been struck by the powerful language of U.N. leaders and some States in recent weeks, begging for civilian protection in Gaza. But it is also notable that we see little or no sustained emphasis politically or legally on the experiences of mothers in Gaza, women who are pregnant in Gaza, and women who are giving birth or post partem in Gaza. More precisely we see little invocation of the fundamental norms of protection for women, in the same way that we have seen invocation of norms to (rightly) end sexual violence in armed conflict. This gap is particularly evident from those States who claim to be champions of the WPS agenda or claim to have a feminist foreign policy, a gap which underscores the ongoing concerns about selectivity, double-standards, and inconsistency in the WPS arena.

Some will argue that there are too many categories of vulnerability (e.g. the elderly and the disabled) in war to focus on one specific group. But, given that we have this language of protection for women in the applicable law of war, and that the U.N. Security Council has spent over two decades talking about the WPS agenda and “protection” for women, it is even more noticeable that certain women and certain babies (generally Global North women and children) receive the rhetorical and strident protection of the WPS agenda, and some bodies, babies, and women (generally Global South women and children) do not.

The war in Gaza is a singular case that illustrates the extent to which the violence experienced by pregnant civilians, women giving birth, women nursing small babies, and women struggling (with their babies) to survive post-partum remain entirely at the sidelines of global political conversations about the obligations of combatants, and those legal advisers advising on targeting during hostilities. In November 2023, the World Heath Organization estimated that there were 50,000 pregnant women in Gaza. Since the October 7th  Hamas terrorist attack, it is estimated that nearly 20,000 babies have been born into the humanitarian catastrophe that has unfolded in the Gaza strip. With one baby born every 10 minutes in Gaza, our eyes must be firmly on the protection that international law should offer to these children and their mothers in real time. Instead, maternity is side-lined in this conflict as in others, notable WPS “champions” with influence on the conflict remain silent on the law and the practice, and the world understands that some women get protection and some do not, and there is a tragic historical consistency to those left on the sidelines.

If the WPS agenda is not to morally collapse on its self-inflicted double-standards, certain States who say they care about all women’s lives equally in conflict have to do better. WPS champions including the United States, Canada, Finland, the United Kingdom, Australia, the United Arab Emirates, and Germany must find their political voices and insist on maternal and obstetric protection for women and children in Gaza, not least because they have fundamental international humanitarian law obligations that appear to have been conveniently forgotten in the past four months. That means actually requiring specific compliance by Israel in targeting, civilian protection, civilian object protection, and in the provision of impartial humanitarian assistance to pregnant mothers, nursing mothers, post-partum mothers, and mothers with young children in Gaza.

For those States making headlines with a “sexy” feminist foreign policy the burden is higher. Feminist foreign policies mean very little when mothers and their children are denied both the protection of international humanitarian law and implementation of WPS commitments. For feminists more generally, and particularly for those who have advocated for a highly selective WPS agenda fixated on sexual violence and who have declined to speak out or act upon the totality of violence experienced by women in war, time is up, and that double standard is fully exposed.

IMAGE: An aerial view of buildings destroyed by Israeli air strikes in the Jabalia camp for Palestinian refugees in Gaza City on Oct. 11, 2023. (Photo by YAHYA HASSOUNA/AFP via Getty Images)