Building Women into Peace: the international legal framework

Abstract

Peace-building is now a major aspect of the work of international institutions. While once the international community aimed simply to maintain a ceasefire and restore some form of stability in conflict zones, since the early 1990s there has been increasing attention given to creating peaceful and democratic societies through international intervention. A common problem in international peace-building projects over the past decade has been the position of women, particularly their limited involvement in the institutional design of peace-building strategies and the possibility that peace-building may actually reduce local women's agency in society. This article discusses the modern enterprise of peace-building and identifies international legal principles that can serve as a framework for peace-building projects in which women's lives are taken seriously.

Notes

This chapter derives from work on a research project on Feminist Analysis of International Dispute Resolution, supported by a John D and Catherine T Macarthur Foundation Research and Writing Award. An earlier version of part of this paper was published in C Chinkin, ‘Peace agreements as a means for promoting gender equality and ensuring participation of women’, UN Doc EGM/PEACE/2003/BP.1, 31 October 2003.

1 ‘Post-conflict Peacebuilding’, Security Council Resolution 1645, 20 December 2005; and ‘The Peacebuilding Commission’, General Assembly Resolution A/Res/60/180, 30 December 2005. A Peacebuilding Commission was proposed in Kofi Annan, In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, UN Doc A/59/2005, 23 May 2005, para 178, add 2.

2 For example, M Thatcher, ‘Advice to a superpower’, New York Times, 11 February 2002, p A7.

3 For example, A Ghosh, ‘The global reservation: notes toward an ethnography of international peacekeeping’, Cultural Anthropology, 9 (3), 1994, pp 412 – 422.

4 Boutros Boutros-Ghali, An Agenda for Peace, Preventive Diplomacy, Peacemaking and Peace-keeping, Report of the Secretary-General Pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992, UN Doc A/47/277-S/24111, 17 June 1992, para 21.

5 Ibid, para 55. See also Supplement to an Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the 50th Anniversary of the United Nations, Report of the Secretary-General on the Work of the Organisation, UN Doc A/50/60-S/1995/1, 3 January 1995, paras 47 – 56.

6 Kofi Annan, The Causes of Conflict and the Promotion of Durable Peace in Africa, Report of the Secretary-General to the UN Security Council, UN Doc A/52/871-S/1998/318, 16 April 1998, para 63.

7 Although Kofi Annan included the elimination of discrimination against women in Africa as a priority in ibid, para 89.

8 ‘Further Actions and Initiatives to Implement the Beijing Declaration and Platform for Action’, General Assembly Resolution S-23/3, 16 November 2000, para 86(b).

9 ‘Women, Peace and Security’, Security Council Resolution 1325, 31 October 2000.

10 Women, Peace and Security, Study Submitted by the Secretary-General Pursuant to Security Council Resolution 1325 (2000), United Nations, 2002, at http://www.un.org/womenwatch/daw/public/eWPS.pdf.

11 E Rehn & E Johnson Sirleaf, Women, War and Peace: The Independent Experts' Assessment on the Impact of Armed Conflict on Women and Women's Role in Peace-building, New York: unifem, 2002.

12 Bureau of Democracy, Human Rights and Labor, Report on the Taliban's War Against Women, 17 November 2001, at http://www.state.gov/g/drl/rls/c4804.htm; and ‘First ladies back Afghan women’, bbc News, 16 November 2001, at http://news.bbc.co.uk/hi/english/uk_politics/newsid_1660000/1660016.stm.

13 ‘Situation in Afghanistan’, Security Council Resolution 1383, 6 December 2001.

14 P Dobriansky, ‘Women and the transition to democracy: Iraq, Afghanistan, and beyond’, Heritage Lecture 793, 20 June 2003.

15 ‘Situation between Iraq and Kuwait’, Security Council Resolution 1483, 22 May 2003.

16 This was acknowledged at a ceremony to mark the fifth anniversary of Security Council Resolution 1325: ‘The Security Council recognises the constant under-representation of women in formal peace processes … more must be done in order to achieve the greater participation of women at the negotiating table and in developing and implementing post-conflict strategies and programmes’. ‘Women and peace and security’, Statement by the President of the Security Council, UN Doc S/PRST/2005/52, 27 October 2005.

17 S Hunt & C Posa, ‘Iraq's excluded women’, Foreign Policy, 143, 2004, pp 40 – 46.

18 Col Carl E Mundy, quoted in ibid, p 43.

19 A Lyth (ed), Gender Awareness in Kosovo: Getting it Right? A Gender Approach to unmik Administration in Kosovo, Stockholm: Kvinna till Kvinna Foundation, 2001, p 24.

20 One example is the Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone 1999 (Lomé Accord), which states in Article XXVIII(2): ‘Given that women have been particularly victimised during the war, special attention shall be accorded to their needs and potentials in formulating and implementing national rehabilitation, reconstruction and development programmes, to enable them to play a central role in the moral, social and physical reconstruction of Sierra Leone.’

21 See H Charlesworth & M Wood, ‘Women and human rights in the rebuilding of East Timor’, Nordic Journal of International Law, 71 (2), 2002, pp 325 – 348.

22 J Mertus, War's Offensive on Women: The Humanitarian Challenge in Bosnia, Kosovo and Afghanistan, Bloomfield, CT: Kumarian Press, 2000, p 50.

23 Kofi Annan, Gender Mainstreaming in Peacekeeping Activities, Report of the Secretary General, UN Doc A/57/731, 13 February 2003. See also discussion in H Charlesworth, ‘Not waving but drowning: gender mainstreaming and human rights in the United Nations’, Harvard Human Rights Journal, 18, 2005, pp 1 – 18.

24 See the definition of ‘mainstreaming’ adopted by the UN Economic and Social Council in 1997, Report of the Economic and Social Council for 1997, UN Doc A/52/3/Rev1, 18 September 1997.

25 S Licht, ‘Women as agents of change in conflict and post-conflict situations’, in M Glasius & M Kaldor (eds), A Human Security Doctrine for Europe, London: Routledge, 2006, pp 200 – 214.

26 Amnesty International, ‘Iraq: decades of suffering. Now women deserve better’, 22 February 2005, at http://web.amnesty.org/library/index/engmde140012005.

27 Ibid.

28 A Adrian-Paul & P Naderi, UN SC Resolution 1325 Women, Peace and Security: Issues and Instruments—The Afghan Context, London: International Alert and ascf, 2005.

29 Sheila Meintjes, ‘War and post-war shifts in gender relations’, in S Meintjes, A Pillay & M Turshen (eds), The Aftermath: Women in Post-Conflict Transition, London: Zed Books, 2001, p 64.

30 S Anderlini, Women at the Peace Table: Making a Difference, New York: unifem, 2000, p 20.

31 Femmes Africa Soldiarité, ‘Peace Agreements as a Means for Promoting Gender Equality and Ensuring Participation of Women’, UN Doc EGM/PEACE/2003/OP.1, 7 November 2003, at http://www.un.org/womenwatch/daw/egm/peace2003/reports/OP1FAS.PDF.

32 Member of Motrat Qiriazi, an umbrella of four Kosova rural women's networks, cited in Organisation for Security and Cooperation in Europe (osce), ‘Code and custom’, in osce, Gender Aspects in Post-Conflict Situations: A Guide for osce Staff, September 2001, p 5.

33 H Charlesworth & C Chinkin, The Boundaries of International Law: A Feminist Analysis, Manchester: Manchester University Press, 2000.

34 C Chinkin & K Paradine, ‘Vision and reality: democracy and citizenship of women in the Dayton Peace Accords’, Yale Journal of International Law, 26 (1), 2001, pp 103 – 178.

35 P Allott, The Health of Nations: Society and Law Beyond the State, Cambridge: Cambridge University Press, 2002, pp 420 – 421.

36 On the need for reform of international humanitarian law, see J Gardam, ‘The neglected aspect of women and armed conflict—progressive development of the law’, Netherlands International Law Review, 52 (2), 2005, pp 197 – 219.

37 See A Anghie, Imperialism, Sovereignty and the Making of International Law, Cambridge: Cambridge University Press, 2005.

38 Opened for signature 13 September 2000, Organisation for African Unity Doc CAB/LEG/66.6 (entered into force 25 November 2005).

39 Article 10.

40 ‘The Right to Development’, General Assembly Resolution 41/133, 4 December 1986.

41 Article 19.

42 Non-discrimination has its basis in the UN Charter, article 1(3) and is provided for in all major human rights treaties, for example the Universal Declaration of Human Rights (udhr), General Assembly Resolution 217A (III), 10 December 1948, article 2; the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), articles 2(1) and 26; the International Covenant on Economic, Social and Cultural Rights (icescr), opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), article 2(2); the African Charter on Human and Peoples' Rights (afchr), opened for signature 27 June 1981, OAU Doc CAB/LEG/67/3 Rev 5 (entered into force 21 October 1986), articles 2 and 18 (3); the Cairo Declaration on Human Rights in Islam, UN Doc A/Conf.157/PC/62/Add.18, 5 August 1990, article 1; the Convention for the Elimination of All Forms of Discrimination Against Women (cedaw), opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981); and the prwq.

43 Amnesty International, The State of the World's Human Rights, London: Amnesty International, 2005.

44 Lyth, Gender Awareness in Kosovo, p 16.

45 Article 2.

46 H Edwar & B Fakri, ‘Women, peace and security’, speech delivered to the UN Security Council, 25 October 2005, at http://www.womenwagingpeace.net/content/articles/0433a.html.

47 N Feldman, After Jihad: America and the Struggle for Islamic Democracy, New York: Farrar, Straus and Giroux, 2003, pp 29 – 33. See also N Feldman, What We Owe Iraq: War and the Ethics of Nation-building, Princeton, NJ: Princeton University Press, 2004.

48 Feldman, After Jihad, pp 29 – 30.

49 M Sunder, ‘Enlightened constitutionalism’, Connecticut Law Review, 37 (4), 2005, p 892.

50 Ibid, p 895.

51 Article 5(a).

52 Article 2(2).

53 UN Doc A/CONF. 157/24 (Part I), 25 June 1993, p 20, para 5.

54 icescr, article 12; Convention on the Rights of the Child (croc), opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), article 24; and afchr, article 16.

55 icescr, article 7; Convention on the Elimination of Racial Discrimination (cerd), opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969), articles 5(e), (i); afchr, article 15.

56 icescr, article 11.

57 Ibid, article 9; and croc, article 26.

58 icescr, article 13; and afchr, article 17.

59 cedaw, article 12 and prwa, article 14 (health); cedaw, article 11 and prwa, article 13 (work); cedaw, article 10 and prwa, article 12 (education). In addition, the prwa has specific provisions guaranteeing to women the right to food security (article 15); and to housing (article 16).

60 Amnesty International, ‘Democratic Republic of Congo mass rape—time for remedies’, 26 October 2004, at http://web.amnesty.org/library/index/engafr620182004.

61 Committee on Economic, Social and Cultural Rights, General Comment 13: The Right to Education, (21st session, 1999), UN Doc E/C.12/1999/10, paras 46 – 47, 55.

62 See N Brown, The Final Draft of the Iraqi Constitution: Analysis and Commentary, Washington, DC: Carnegie Endowment for International Peace, 2005.

63 Gender-based violence has been defined by the Committee on the Elimination of Discrimination against Women as ‘violence that is directed against a woman because she is a woman or that affects women disproportionately’. Committee on the Elimination of Discrimination Against Women, General Recommendation no 19, (11th session, 1992).

64 Ibid.

65 ‘Declaration on the Elimination of Violence Against Women’, General Assembly Resolution 48/104, 20 December 1993.

66 Part I, para 18; part II, para 38.

67 UN Doc A/Conf. 177/20 and A/Conf. 177/20/Add. 1, paras 113(b), 124(b); and UN General Resolution S-23/3, 16 November 2000, paras 41, 59.

68 Article 3.

69 Article 4.

70 Para 124(g).

71 ‘A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations,’ UN Doc A/59/710, 24 March 2005.

72 ‘Traffic in Women and Girls’, General Assembly Resolution 55/67, 4 December 2000, para 17.

73 Article 5.

74 Committee on the Elimination of Violence against Women, General Recommendation No 19 (11th Session, 1992), paras 14 – 16 describes various factors that make women vulnerable to violence. They include poverty and unemployment, wars, armed conflicts and the occupation of territories.

75 For example, the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000 (not yet in force); and Recommended Principles and Guidelines on Human Rights and Human Trafficking, Report of the UN High Commissioner for Human Rights to the Economic and Social Council, UN Doc E/2002/68/Add 1, 20 May 2002.

76 Prosecutor v Zejnil Delalic Zdravko Mucic aka ‘Pavo’, Hazim Delic Esad Landzo aka ‘Zenga’, IT-96-21, (Judgement, 16 November 1998), para 941 (rape as torture).

77 Prosecutor v Anto Furundzija, IT-95-17/1 (Judgement, 10 December 1998; Appeals Chamber, 21 July 2000) (single incident of rape constitutes a war crime).

78 Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, IT-96-23 and IT-96-23/1 (Judgement, 22 February 2001; Appeals Chamber, 12 June 2002) (rape as sexual slavery).

79 Prosecutor v Jean-Paul Akayesu, ICTR-96-4-T (Judgement, 2 September 1998) (genocidal rape).

80 See V Nikolic-Ristanovic, ‘Sexual violence, international law and restorative justice’, in D Buss & A Manji, International Law: Modern Feminist Approaches, Oxford: Hart Publishing, 2005, pp 273 – 293.

81 Ibid, p 277.

82 See, for example, P Wald, ‘The International Criminal Tribunal for the Former Yugoslavia comes of age: some observations on day-to-day dilemmas of an international court’, Washington University Journal of Law and Policy, 5, 2001, pp 87 – 118.

83 See B Nowrojee, ‘Your Justice is Too Slow’: Will the ictr Fail Rwanda's Rape Victims?, Geneva: unrisd, 2005.

84 ictr Rules of Procedure and Evidence, adopted 5 July 1995, Rule 96; and icty Rules of Procedure and Evidence, adopted 14 March 1994, Rule 96.

85 icc Rules of Procedure and Evidence, ICC-ASP/1/3 (part II-A) (adopted 9 September 2002), Rules 70 – 72.

86 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002), article 68.

87 Article 75.

88 Nikolic-Ristanovic, ‘Sexual violence, international law and restorative justice’, p 288. See also S Harris Rimmer, ‘Untold numbers: East Timorese women and transitional justice’, in S Pickering & C Lambert (eds), Global Issues: Women and Justice, Sydney: Sydney Institute of Criminology, 2004, pp 335 – 365.

89 See P Hayner, Unspeakable Truths: Confronting State, Terror and Atrocity, New York: Routledge, 2001; and R Teitel, Transitional Justice, Oxford: Oxford University Press, 2000.

90 M Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence, Boston, MA: Beacon Press, 1998.

91 Examples of such approaches can be found in the work of the South African Truth and Reconciliation Commission, which employed women-only hearings and allowed women's testimony to be given as a collective. See L Graybill, ‘The contribution of the Truth and Reconciliation Commission toward the promotion of women's rights in South Africa’, Women's Studies International Forum, 24 (1), 2001, pp 1 – 10.

92 For example, icescr, article 7; and cedaw, article 11.

93 Article 13.

94 The Social and Economic Rights Action Center for Economic and Social Rights v Nigeria, African Commission on Human and Peoples' Rights, Communication No 155/96 (2001), paras 45 – 46 (emphasis in original).

95 Article 13(e).

96 See, for example, Magaya v Magaya[1999] 3 LRC 35, 1999 (1) ZLR 100 (Supreme Court of Zimbabwe) (denial of women's right to inheritance).

97 C Beyani, ‘Key issues’, in A Buregeya et al (eds), Women's Land and Property Rights in Situations of Conflict and Reconstruction, New York: unifem, 2001, pp 14 – 17.

98 R Waterhouse, ‘Women's land rights in post-war Mozambique’, in Buregeya et al, Women's Land and Property Rights in Situations of Conflict and Reconstruction, pp 45 – 53.

99 This approach is supported by cedaw, article 14(g) (equal access to credit, loans and equality in agrarian, land reform and resettlement programmes); and prwa, articles 19(c) (access to and control over productive resources) and (d) (access to credit), and article 21 (right to inheritance).

100 Lyth, Gender Awareness in Kosovo; and H Charlesworth & M Wood, ‘“Mainstreaming gender” in international peace and security: the case of East Timor’, Yale Journal of International Law, 26 (2), 2001, pp 313 – 318.

101 Article 7(b).

102 Article 8.

103 Committee on the Elimination of All Forms of Discrimination against Women, General Recommendation No 23 (16th session, 1997), para 15.

104 Article 4.

105 Article 9.

106 Amnesty International reports that, during the Iraq election process in September 2005, armed anti-government insurgents killed officials who registered women to vote, and confiscated voting cards forcibly. Amnesty International, The State of the World's Human Rights.

107 B Kiplagat, ‘African governments—African conflicts’, in G Sorbo & P Vale (eds), Out of Conflict: From War to Peace in Africa, Uppsala: Nordic Africa Institute, 1997, pp 132 – 133.