The law of occupation must concern the lives of women and girls

This piece is part of a series on gender, conflict and international humanitarian law (IHL), co-organized by the ICRC and Fair Security. In the coming months, the series will feature contributions from a range of experts exploring the humanitarian, legal and military implications of – and the challenges raised by – integrating 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. His genealogy is long and its content, like much of the law governing the conduct of hostilities between states and between state and non-state actors, is routine, pedantic and highly ritualized. But despite the rippling and gendered costs of the occupation, this body of law has paid little attention to the lives of women and girls. It is high time for academics and governments to correct this imbalance.

Gender Imbalance in Occupation Law

In general, the law of occupation has received far less scholarly and political attention than other parts of the international law governing war. This is partly because each occupation is unique and results from a particular set of military, geopolitical, economic and social circumstances that, to some degree, make each experience of occupation exceptional. In modern times, the law of occupation constitutes highly political terrain, where the mere invocation of the term “occupation” itself often engenders a series of tense political conflicts. Warring states frequently seek to extricate themselves from the application of the law frameworks of occupation even when they appear to hold effective control and dictate the governance of a conquered territory (e.g. the United States in Afghanistan and Syria), outright annex territory to avoid coerced occupation (e.g. Russia in Ukraine), or attempt to shift the legal framework of occupation by advancing markedly more permissive counterterrorism regimes, as increasingly evidenced by the context of the Occupied Palestinian Territories.

There are several sites of recent occupation, including the long-standing site Moroccan occupation of Western Saharathe business of Northern Cyprus by Turkeythe US occupation of Iraq and his allies for a while, East Timor from 1975 following the Indonesian invasion after Portugal relinquished colonial control, parts of the Democratic Republic of Congo by several states, South OssetiaCrimea, Eastern Ukraine by Russiaand the Occupied Palestinian Territories by Israel.

One of the enduring features of occupation law is its lack of attention to the needs and rights of women and girls living under belligerent control. Legal Fellowship continued to ignore broader gender issues in the occupation and largely ignored the experiences of women and girls living under occupation. This trend continues despite the concentration political and legal attention to the broader experiences of women and girls in situations of armed conflict. In almost every major writing on the law of occupation, women and girls, and the relevance of gender analysis to understanding the limits of law and the experience of living under occupation, have been marginalized or totally absent. My work in recent years has sought to help fill these empirical, theoretical and political gaps.

The unique challenges of occupation for women and girls

The challenges that women and girls face in situations of occupation are vast and extensive. They range from specific protection gaps in the law to the protection and promotion of their basic human rights, particularly in the long term, transformative professions. The challenges of protection and rights arise in all aspects of the life of a woman living under occupation. They range from access to education, to marry, to give birth, children’s educationobtain Health caregoing to work, navigating the sustained presence of military troops, seeking accommodation, food, and humanitarian assistance to provide violent and non-violent resistance to occupation. For example, in the Occupied Palestinian Territories (OPT), after more than half a century of belligerent occupation, women’s lives have been negatively affected by each of these measures. This entrenched occupation has reshaped family life, including how women and girls function in their daily lives, and is profoundly limited in their ability to realize their most basic rights. The lives of women 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 iconic case of Ahed Tamimi, a Palestinian teenager charged with a dozen offenses and treated by the much maligned Israel’s military justice system following a confrontation in which she slapped and kicked an Israeli soldier standing in an area near her home, highlights the costs to young girls who dispute the presence or the actions of military actors in the OPT.

The absence of detailed and express provisions in the law of 1907 Haye Convention and Geneva Conventions regarding the rights and protection of women under occupation is compounded by a lack of attention to interpreting relevant provisions of international humanitarian law (IHL) from a gender perspective, or by the assumption of gender neutrality in legal standards that have been applied to situations of occupation. Specifically, while understanding that the systematic inequality of women and girls before, during and after armed conflict entails exposure to specific risks and harms, influences access to resources and structures how women face and manage the work, these ideas had little effect. internalization in labor law and practice. My work detailed how women function as “frontliners” in situations of occupation, squeezed into the public space by the high costs for men (arrest, detention, targeted killing) of being exposed to the military and carrying a range of burdens including the same risks of harm as men, plus the added costs of sexualized and coercive harm.

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

To these subtle alliances are added the provisions of IHL, drafted at a time when women did not “sit at the table” and when their lives were not considered relevant settlement of hostilities and their aftermath. When women were protected in occupation, it was through the prism of honour, as set out in Article 27 of the Fourth Geneva Conventionwhich provides, among other things, that[w]Omens will be specially protected against any attack on their honor, in particular against rape, enforced prostitution or any form of indecent assault. This fragile shield rested on the honor of the man to whom a woman was attached. Never his own autonomous rights and welfare.

A way forward: prioritizing gender in labor law

Contemporary occupation law must grapple with its historical baggage, as well as the persistent lack of express protection that would address the specific needs and rights of women undergoing dozens of occupations on the ground of global conflict. Especially, women who live under long-term transformative occupation, where the longevity of oppression and harm has unique and distinct effects, are especially in need of greater protection and normative support. As I identified somewhere else, some of this scaffolding of support can be drawn from human rights law operating alongside the law of occupation. But we also need a profound change in the normative interpretation and practice of contemporary occupation law.

First, change would require recognition of the gendered harms and effects of the facts and practices of occupation. Second, the central role and responsibilities of the military commander should be reorganized to prioritize and address gender in military action, so that women’s rights and needs become a central consideration when costing military necessity and the legality of any action. . Third, the international community, including its courts and human rights experts, must also internalize the harms caused to women and girls in transformative occupations, and hold the belligerent state to account. Finally, in the inner sanctum of academic research and writing, it can no longer be acceptable to approach occupation as a gender-neutral exercise. On the contrary, we academics have our own responsibility to dismantle the myths of gender neutrality in the law and practice of occupation and to approach the universe as it really is for women and girls living under belligerent occupation.

For 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 walk through the checkpoint from the Arab area to the Israeli area of ​​Hebron on July 18, 2022, in Hebron, West Bank. (Photo by Franco Origlia via Getty Images)

Michael A. Bynum