THE PROTECTION OF WOMEN IN INTERNATIONAL HUMANITARIAN LAW
Introduction
The law that defines the various conducts of war is termed International Humanitarian law. In a simple language, it can be termed as the rules of armed conflicts. The International Humanitarian Law (IHL) consist set of rules that are established through mutual understandings or by a treaty that defines to protect people, persons, objects that are or may be affected during armed conflicts. The IHL aims in protecting the injured, prisoners of war, and civilians who are in enemy hands. War, in today’s scenario, is not just a man’s domain but, the fighting’s highly compromised on women which can be in a severe situation. The adverse effects of war on women and children can become severe and there is a need for a strict law to protect them from the after-effects of armed conflicts. Regardless of whether the women or children are civilians or soldiers, women face higher disadvantages as a result of gender inequality. Humanitarian law understands this and provides general protection to both women & men, as well as in some particular provisions, there are some additional protocols in protecting women during armed conflicts.
Significance of International Humanitarian Law in Protecting Women and Children
Presently, the wars do not clash on the battlefields; instead, they are fought where civilians reside. Due to this, the civilians, non-fighters get in major trouble and casualties. Amidst all the women and the children are major sufferers. The food supply, health services, medical services, water supply, transportation, and fuel supply is majorly disrupted during the war.
Importance of International Humanitarian Law in the Protection of Women
Seeking the protection of women without any discrimination based on gender, the international humanitarian law provides ease in human suffering at the time of armed conflicts. It also recognizes that the woman however suffers the most challenging life in armed conflicts including sexual assaults and health dangers. No matter the war is between the two parties, but their impacts and after-effects are most likely suffered by the normal civilians and affect the whole community.
IHL provides humane treatment for the injured and sick, prisoners, and civilians trapped in the conflict without any kind of gender discrimination based on sex, caste, race, nationality, religion, political opinions, or any similar criteria. This general protection is offered by the Four Geneva Convention and their Additional Protocols as well as by the conventional humanitarian law.
There are also special protections for the female prisoners of war including a separate room for female captives. Rape and other sexual assaults against women are strictly prohibited under international humanitarian law, and if happens, would be considered a crime during the war. Moreover, it is also mentioned that the special needs of nursing mothers, expected mothers have to be met with special attention towards them. Women whose lives are affected due to armed conflicts also get special treatment and must be analyzed well.
It is mentioned in humanitarian law that during and after the armed conflict, if women get separated from the family or any loss of a relative, then the family members have all the rights to know what happened to their relative and for the parties involved in the war are mandatory to take all the necessary steps to locate the missing family member.
In addition, it is suggested that women must be strictly protected from sexual abuse including rapes, forced prostitution, and any other form of violence. Women prisoners must be living separately from men prisoners to avoid sexual abuse.
The Protection of Women in Geneva Convention and Their Additional Protocols
The Geneva Conventions and the Protocols safeguard women both as members of the civilian population not taking part in the armed conflicts and also as combatants trapped in the hands of the enemy. The below paragraphs will throw light on various aspects of women’s protection under humanitarian law.
Principle
International Humanitarian Law (IHL) follows the basic principle of gender equality and prohibits discrimination. It is also mentioned that women “shall be benefitted in getting treatments as favorable as that granted to men” (Article, 14). This means that women are eligible for all rights and freedoms as per the Conventions. Women are also not applicable towards the differentiated treatment. Protection against insults, questioning, public curiosity, food, clothing, education, recreation, sports, and games, conditions for transfer to name a few are in favor of women’s protection.
Protection of women as members of the civilian population
“Civilian is any person who does not belong to armed forces” and like all the other civilians, women are also protected against the abusive treatment of the party as well as against the effects of conflicts.
Protection against abusive behavior by the party to the conflict into whose power women are trapped
In International armed conflicts, women are amongst the protected persons by the Fourth Geneva Convention. Under these circumstances, women get benefits from all the provisions which recognize the basic principle of humane treatment including respect of life, physical and moral integrity, torture, punishments and penalties, hostages. Moreover, during the event of infractions committed concerning the conflicts, women have the right to trial by an independent and impartial court settled by the law respecting the principles of judicial procedures.
Protection of Pregnant Women & Maternity Cases
During the international armed conflicts, pregnant women and maternity cases receive various benefits from supplementary protection. The protocol specifies that “Pregnant women and nursing mothers, mothers having dependent infants who are arrested, detained or interned shall have their cases resolved in utmost priority. This is meant for the purpose that pregnant women being released as soon as possible due to their health conditions.
The Fourth Geneva Convention states that “The expectant and nursing mothers in the occupied territories shall be provided with additional food supply according to their physiological needs.” The clause was however designed to avoid the deficiency diseases that may affect future generations. Maternity cases must not be transferred if the journey is going to be hectic or might be harmful to their health, as it is the safety of women and not the military situation.
Mothers of Young Children
Protocol 1 mentions laws to be followed in case of expecting mothers or nursing mothers saying, “Mothers having dependent infants who are arrested, interned or detained for reasons related to armed conflicts shall have the right to consider their cases with utmost priority (Article, 76).
In this case, the term “Mother having dependent infants” has a broad meaning than “Nursing mothers”. The respected authors of the Protocols were unable to agree on the age as to when children can be said to be independent of their mothers.
In the case of pregnant women and maternity, The Fourth Geneva Convention provides that the parties will take complete responsibility for interned women including their return to the place of residence, their accommodation in a neutral country of the agreements of their release from the custody.
Women and Death Penalty
Well, there is no comment said about this subject in the Fourth Geneva Convention. Protocol I bridges the gap following the International Covenant on Civil and Political Rights mentioning the provision that there would be NO death penalty executed on pregnant women and the mother of young children. International Humanitarian Law recommends that such executions must be avoided at the utmost priority.
Status Of Women Prisoners Of War
Like men, the women who take part in armed conflicts are outstandingly protected by the international humanitarian law from the moment they fall into the power of the enemy. Whereas, they must be part of the armed forces of a party if they are to be considered as combatants entitled to the status of prisoners of war when captured.
The Mental Trauma That Hits People Especially Women Shortly
The repercussions of the war on the mental health of civilians, especially women are one of the most severe effects of armed conflicts. , According to the studies, mental problems nowadays are making waves amongst the general population. Women are more affected than the males in this scenario. The children and elderly face severe effects after the hostilities. War damages communities, families, disrupt the social and economic growth of the entire nation. Long-term physical injury to children & adults is the severe consequence of war. In the conflicts, death is just the tip of the iceberg, but the real situation is worse than ever which includes poverty, malnutrition, social/economical loss, illness, declined mental health, and much more. After an armed conflict, women play a significant role in rebuilding communities despite their disturbed mental/emotional health. In the rural areas, women are the main beneficiaries of the supply of seeds and livestock that promotes the economic security of their homes in the wake of such armed conflicts. Women also play a significant role in raising awareness and preventing injury from landmines that may continue to cause injury or death shortly after the end of conflicts.
Conclusion
International Humanitarian Law undoubtedly provides comprehensive protection to women. The laws not only benefit from all the provisions which protect the victims of armed conflicts but also, in addition, approximately 560 articles in the Geneva Convention of 1949 and Additional Protocols of 1977, about 40 which are particularly concerned about women protection in general.
Well, women are always underrated when it comes to protection but, it is not due to a lack of legal basis. Whereas, the Fourth Geneva Convention and the two Additional Protocols adopts women as a member of the civilian population to be the first victim of indiscriminate attacks against civilians since men generally are involved in the war. Article 27 of the Fourth Geneva Convention provides special protection for women against any disrespect, attack on their dignity, honor especially against rape, forceful prostitution, or any form of indecent assault or sexual abuse or sexual violence.
The international community will not succeed in alleviating this situation merely by adopting these rules. Instead, they will have to make sure that the rules are forced and respected. It is the responsibility of the Government to apply and provide special protection to women; the rules of International Humanitarian Law (IHL) are collective. The Fourth Geneva Convention and the Additional Protocols have undertaken to abide by the rules and respect them. It is highly recommended that the protection of women against rape, sexual assaults, any kind of violence, insults is the prime responsibility for implementing the international humanitarian law.
Author: Anas Khan,
Manav Rachna university, 5th year , B.A.LLB