The use of force in international law

# Special protection under IHL

Two groups afforded special protection are women and children.

The specific needs of women may vary according to the situation in which they find themselves during armed conflict. Although the majority of women experience armed conflict as civilians, mostly due to their traditional gender roles within the society as wives, mothers and carers, an increasing number of women take an active part in warfare, both in regular forces and guerrilla, resistance or insurgent groups. Irrespective of the roles they play, IHL attempts to provide particular protections, aimed at achieving special respect for women. Within the IHL framework, particular rules have been adopted in relation to pregnant women and mothers of young children.

## Box 6 Protection for women under the Law of Geneva

The Law of Geneva provides special protection for women:

- Mothers:
  - (Articles 14, 16, 17, 21, 22, 23 GC IV)
- Detainees and Prisoners of War (POWs):
  - Articles 14(2), 25, 97, 108 GC III
  - Articles 76, 85, 89, 91, 97, 124, 132 GC IV
  - Articles 76(2) GC AP I
  - Articles 5(2)(a), 6(4) GC AP II.

- Specific provisions regarding protection from wartime sexual violence:

  - Articles 27 GC IV
  - Articles 76 (1) GC AP I
  - Articles 4 (2) GC AP II
  - Common Article 3(1)(c) GC.

Figure 6 ‘Rape is cheaper than bullets’, a poster advertising campaign launched by Amnesty International to stop the use of sexual violence as a weapon of war
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## Activity 4

Read paragraphs 333–58 from the Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General (UN, 2005). (UN, 2005).

1. Can you identify which rules of IHL have been violated in the situations described in the report?
2. The report states that rapes have also been committed by the Janjaweed. Are irregular armed groups bound by the rules of IHL regarding protection of women in armed conflict?
3. Do the instances of rape and other forms of sexual violence raise any questions about the adequacy of IHL in the protection of women in armed conflict? Is the law sufficient? Or is there perhaps more of a need to nurture respect for the existing law?

## Comment

Rape and other forms of sexual violence have been used as a weapon of war for millennia. The aim of using sexual violence in conflict is to victimise women and also to assert domination over the enemy. Furthermore, it is a psychological wartime tactic, which purports to attack and weaken the entire community to which the victim belongs. From a socio-cultural perspective, sexual violence is used to assert specific political goals by means of humiliation, degradation and the terrorisation of a particular social group.

The report describes several situations involving the use of rape and other forms of sexual violence during the civil war in Darfur. The use of sexual violence in armed conflict (both internal and international) is explicitly prohibited by IHL and this rule is binding on all parties to armed conflict. In the context of an NIAC, Common Article 3 of the Geneva Conventions prohibits ‘violence to life and person, in particular [...] cruel treatment and torture’ and ‘outrages upon personal dignity, in particular humiliating and degrading treatment’. Although Sudan is not a party to GC AP II, the customary rules of IHL, including the prohibition of the use of sexual violence, are applicable and fully binding on those involved in armed conflict.

All parties are bound by the core principles of IHL, especially the principle of distinction (see para. 339 of the report) and the principle of differentiation. Furthermore, international law prohibits and criminalizes sexual violence, in particular rape as a war crime and/or a crime against humanity. The use of sexual violence as a weapon of war has been condemned on an international level (UN Security Council Resolutions 1325 of 31 October 2000 and 1820 of 19 June 2008) and numerous calls have been made to stop this practice.

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