Don’t go changing – Syria and the international law on the use of force

by Katie Johnston, University of Oxford.

 

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‘Don’t Bomb Syria’ rally outside the House of Commons, London, April 16th 2018. Photo by Steve Eason.

In which situations may a State lawfully use force against another State? Is it possible that the law may change over time, so that what would previously be considered an unlawful use of force will come to be seen as lawful?

These questions were at the centre of the debate about the legality of the airstrikes against the Assad government in Syria, carried out by the US, UK and France on 13 April 2018.[1] Yet they also go to the heart of the modern jus ad bellum, the rules of international law that govern the use of force by States in their international relations. My research looks at how the law in this area is structured and aims to identify the processes by which the jus ad bellum can change.

International law, as a decentralised system of States, has no central legislative body that enacts binding laws for the international community. States become subject to international legal obligations primarily by entering into treaties and through the emergence of rules of customary law as a result of the practice of States.

The adoption of the United Nations Charter in 1945 brought about a paradigm shift in how international law regulated war. From a sovereign right and a legitimate policy choice, albeit subject to increasing restriction over the first half of the twentieth century, the use of force by States became subject to a comprehensive prohibition, set out in Article 2(4) of the United Nations Charter.[2] There are only two narrow exceptions to this prohibition, when force may lawfully be used: collective measures authorised by the Security Council under Chapter VII of the Charter, and the right of States to use necessary and proportionate force unilaterally in self-defence, if an armed attack occurs.

In addition to this treaty law rule in Article 2(4) which binds all UN member States, the prohibition on force also developed into a parallel rule of customary international law, binding on all States.[3] It is also widely accepted that the prohibition on the use of force has the status of a “jus cogens” norm of international law, from which no derogation is permitted. Although the existence, definition and content of this category of international legal rules remains contested, typically jus cogens norms protect the fundamental values of the international community and include, for example the prohibitions on genocide and torture.

Thus, the prohibition on the use of force is expressed in three forms: the treaty provision in Article 2(4) of the Charter, a parallel rule of customary international law, and a jus cogens norm. To draw an imperfect analogy with domestic law, imagine the same prohibition of murder existing in a criminal statute, as a common law rule developed by the courts, and as a provision in the Constitution.

This account is necessarily a simplified one that skips over the many debates surrounding the definition of force, self-defence, and the functioning of the collective security system that have arisen since the Charter’s adoption, and some of which remain unresolved. However, fundamentally, this is the international legal framework that regulates the use of force by States today: a comprehensive prohibition on the use of force, with two narrow exceptions.

It is against this backdrop that the UK government’s claimed legal basis for the airstrikes on 13 April 2018 must be assessed. In a legal position published on 14 April, the UK government asserted that “the UK is permitted under international law, on an exceptional basis, to take measures in order to alleviate overwhelming humanitarian suffering.”[4] This is almost certainly not correct under international law as it stands – as noted above, there are only two exceptions to the prohibition on the use of force, neither of which applies in this case. The UK  position is inconsistent with the text of the Charter and very few States take the view that a legal right of humanitarian intervention currently exists, while many more have explicitly stated that they do not recognise the existence of any such doctrine.

Indeed, for the UK position to be correct, it would need to be shown that the legal framework set out above had evolved since 1945 so that a new legal basis for the unilateral use of force by states had come into existence. This could be, for example, through a change to the prohibition so that it no longer banned force used for humanitarian purposes, or creation of a third exception of humanitarian intervention. However, given the complex structure of the law in this area, any argument that the jus ad bellum has changed faces a number of obstacles.[5]

First, as described above, the prohibition on the use of force exists in multiple legal rules. Therefore, even if a State could show that a new customary international law rule permitting humanitarian intervention had come into existence, any State claiming to rely on that right would still be in violation of its treaty obligation as a UN member not to breach the prohibition on the use of force in Article 2(4) of the Charter. This situation is further complicated by Article 103 of the UN Charter, which provides that the obligations of UN members under the Charter take precedence over their other obligations. Any State wishing to rely on a right of humanitarian intervention would therefore need to show not only that a new rule of customary law had emerged – which requires widespread and consistent practice by States accompanied by their belief that such a legal rule exists – but also that the UN Charter had been reinterpreted to allow for humanitarian intervention. Demonstrating such a reinterpretation, although possible in principle, is a difficult standard to meet: practice would need to establish the agreement of all UN members that the Charter should now be interpreted in this way.[6]

A second, more difficult, obstacle is presented by the jus cogens status of the prohibition on the use of force. Jus cogens norms can only be modified by another norm of the same character, so it seems that any new legal basis permitting humanitarian intervention would also need to show that it had fulfilled the test for emergence of a new jus cogens norm: acceptance and recognition by the “international community as a whole” that the norm has such a status.[7] This threshold is lower than that required to demonstrate reinterpretation of the UN Charter through subsequent practice, described above, but there are other characteristics of jus cogens norms that may complicate the process of change. Jus cogens norms invalidate contrary practice, depriving it of any legal effect it may have to bring about an evolution in customary law.[8] The presence of the jus cogens norm therefore seems to put those arguing for a change to the prohibition of the use of force in an all-or-nothing position: either they show that the stringent requirements for changing a jus cogens norm have been met, or any practice short of that threshold will not only be in violation of the jus cogens prohibition, but also ineffective to bring about a change in the customary or treaty norms.

In sum, the existence of multiple legal rules prohibiting the use of force, and the characteristics of the Charter and the jus cogens norm that cause them to prevail over conflicting rules, mean that changing the prohibition on the use of force appears to be very difficult indeed. The UK legal position does not explain whether the purported new right of humanitarian intervention on which it relies is understood as a new rule of custom, a reinterpretation of the Charter, or a new jus cogens norm. As shown above, it appears that a plausible claim may need to demonstrate that it is all three, simultaneously.

 

There are good reasons why it should be difficult to change the prohibition on the use of force. Conceptual and methodological arguments about legal rules gloss over the death, suffering and displacement that is caused by armed conflict; historically, the impact on women has been particularly overlooked.[9] The drafters of the Charter wanted to “save succeeding generations from the scourge of war”[10] by creating a new international legal order where unilateral use of force by individual States became the rare exception and not the rule. Even if the prohibition on the use of force is not universally complied with (what law is?), the current legal framework requires States to justify any use of force in terms of its requirements or face international condemnation, which in itself has a restraining effect. Creating a new legal basis for States to use force – without collective authorisation – would upset the current balance, tilting it in favour of greater unilateralism. In addition, in the specific context of humanitarian intervention, any increased permissiveness is unlikely to benefit all States equally. States that already enjoy greater military and political power will be more able to take advantage of a new right to use force unilaterally. Less powerful States, on the other hand, will see their protection from foreign intervention diminished.[11]

Nevertheless, the arguments remain finely balanced. While a legal right of humanitarian intervention does not exist in international law today, with the Security Council sliding back into gridlock and unable to address threats to peace and humanitarian disasters, international consensus may well shift to accept that intervention without Security Council authorisation is permissible in some circumstances. In such a case, it may be preferable for the international legal framework to be able to evolve to accommodate a new legal basis for the use of force, either within or in addition to the existing exceptions, rather than risk the prohibition being repeatedly violated or ignored, as appears to have been the case with the US, UK and French strikes last month. Developments such as the provision in the Constitutive Act of the African Union for a collective, regional, treaty-based right of humanitarian intervention could provide a less disruptive alternative to increased unilateral uses of force.[12] Yet, as the law stands, this provision appears to be unlawful.

Clarifying the processes by which the rules of the jus ad bellum can change could help provide a shared basis for States and international lawyers to evaluate claims that the rules governing the law on the use of force have changed, and avoid a more unstable situation where States instead abandon or undermine the authority of the prohibition on the use of force or the Charter system. It is this question, of how the prohibition on the use of force and its exceptions can change, that my research will  address.

 

 

[1] See, for example, Milena Sterio, Syria and the Limits of International Law, IntLawGrrls, 12 April 2018: https://ilg2.org/2018/04/12/syria-and-the-limits-of-international-law/

[2] Charter of the United Nations (1945): https://www.un.org/en/sections/un-charter/chapter-i/index.html

[3] As later confirmed by the International Court of Justice, Militarv and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment, I.C.J. Reports 1986, p. 14, at para. 190.

[4] Syria action – UK government legal position, 14 April 2018: https://www.gov.uk/government/publications/syria-action-uk-government-legal-position/syria-action-uk-government-legal-position

[5] As noted by Professor Dapo Akande in his legal opinion of 16 April: Akande, The Legality of the UK’s Air Strikes on the Assad Government in Syria, 16 April 2018: https://www.scribd.com/document/376483861/Akande-Opinion-UK-Government-s-Legal-Position-on-Syria-Strike-April-2018

[6] Vienna Convention on the Law of Treaties (1969), Article 31(3)(b): http://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

[7] VCLT, Article 53.

[8] Orakhelashvili, Changing Jus Cogens Through State Practice? The Case of the Prohibition of the Use of Force and its Exceptions, in Weller (ed.), The Oxford Handbook of the Use of Force in International Law (OUP 2015).

[9] Hilary Charlesworth, Christine Chinkin, Shelley Wright, Feminist Approaches to International Law, 85 American Journal of International Law, 613, 645 (1991); Christine Chinkin, A Gendered Perspective to the International Use of Force, 12 Australian Yearbook of International Law 279, 293 (1988-1989).

[10] Charter of the United Nations, Preamble.

[11] See Anne-Charlotte Martineau, Concerning Violence: A Post-Colonial Reading of the Debate on the Use of Force, Leiden Journal of International Law (2016), 29, pp. 95–112.

[12] Constitutive Act of the African Union (2000), Article 4(h): https://au.int/sites/default/files/treaties/7758-treaty-0021_-_constitutive_act_of_the_african_union_e.pdf

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The unfinished gender politics of the Good Friday Agreement… and its 20th anniversary celebrations.

by Dr. Maria-Adriana Deiana, Assistant Professor, Institute for International Conflict Resolution and Reconstruction (IICRR) , School of Law and Government, Dublin City University.

With the 20th anniversary of the Good Friday Agreement (GFA), April 2018 was a milestone, filled with numerous events and discussions about the legacy of the peace settlement and its future prospects, both on the island of Ireland and internationally. Given my research on gender and post-conflict transformation, I was invited to the U.S. to speak at an academic event to mark two decades since the signing of agreement. As speakers, we were asked to reflect on the GFA’s legacy in bringing an end to decades of political violence and building peace for Northern Ireland. My aim was to discuss the implications for women’s citizenship that emerged throughout the peace process, drawing upon my research and over a decade spent in Belfast.

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Cover of the Sunday Business Post’s magazine commemorating the 20th Anniversary of the Good Friday Agreement. The newspaper has been criticised for ‘airbrushing’ women, in particular Dr. Mo Mowlam, from the peace process.

I began my contribution by acknowledging and discussing the role of the Northern Ireland Women’s Coalition (NIWC) as co-architects of the agreement. At the same time, I pointed out that the peace process has been ambivalent in addressing women’s demands for inclusion, equality and social justice, remaining therefore incomplete. My talk was abruptly interrupted by another participant who rebuked my assessment for “being ungrateful”. He then took his turn and offered what, he felt, was the proper account of the conflict and of the peace negotiations’ complexities. The gist of his intervention suggested that gender is not relevant to understanding the conflict in Northern Ireland. This is because more men than women died during decades of political violence. While acknowledging that women have suffered in the conflict, it was implied that the extent of this suffering was mostly confined to losing or caring for family members caught-up in the conflict.

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Northern Ireland Women’s Coalition speaking outside Stormont following talks. Photo: Derek Speirs

 

I wish to dwell on this short-lived, yet telling, exchange to develop a reflection on the gender politics underpinning narratives of the Good Friday Agreement, as well as its 20th anniversary celebrations. Starting from the use of the word “ungrateful” to dismiss research that foregrounds women’s experiences and claims (how dare we critique the legacy of the peace process?), the arguments raised in response to my points offer a glaring example of a deep-seated reluctance to acknowledge that women and gender matter greatly in the politics of conflict and peace-making. To begin with, I was struck by the failure to even acknowledge evidence and research documenting the varied impact of conflict in women’s lives, such as the unequal economic and social hardship experienced by women in working-class and rural areas; women’s safety and gender based violence in relation to forms of paramilitary activity and sectarianism; the long-term effects of violence on health and well-being, and increasing caring responsibilities for women as a direct result of the conflict – for example, when family members were injured. Women’s (unequal) care and emotional labour, mentioned by my co-speaker, is  indeed a poignant example of the gendered legacy of the conflict!

What is more, obscured in such gender-blind narratives are the complex ways in which women, in their diversity, participated in the conflict and peace process. It has been documented that some women were actively involved in protests, marches and more overt forms of political activism. Others explicitly engaged in the conflict as combatants in republican/nationalist paramilitary groups, and through supportive/less visible roles in loyalist groups. Some women were involved in community groups and grass-roots organisations that emerged predominantly in working-class areas, as a response to the deficiencies of direct-rule government in dealing with the social and economic needs of communities fractured by conflict and deprivation. In some instances, these kinds of supporting networks would also extend across divided communities. Although conflicting views on the constitutional issues and on the identification with feminism remained, civic activism provided a crucial platform for women’s active engagement during the conflict.  When prospects for the peace settlement emerged in the late 90s, it offered a springboard for a more cohesive, and collective, albeit short-termed, mobilisation which led to the formation of the NIWC.

Not only do the arguments on gender’s irrelevance to understanding the complexities of the conflict suggest a partial view of its history, but this logic also sustains the tendency to dismiss women as full-fledged agents in the politics of the peace process. Beside my own experience at the international conference that prompted this reflection, this attitude has been on display during the GFA’s celebrations on occasions where women’s stake as co-architects in dealing with the legacy of conflict and building peace has been omitted or downplayed.

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Dr. Mo Mowlam, Secretary of State for Northern Ireland, talking to the press after a visit to the Maze prison to speak with loyalist and republican prisoners in 1998, in a move described as ‘mad’ and ‘brave’. RTÉ News archives, www.rte.ie/archives/2018/0108/931726-m0-mowlam-visits-maze/

We should remember that when the Agreement was negotiated, women were unusually visible. Dr. Mo Mowlam, the UK Secretary of State for Northern Ireland, played a tremendous role both in her personal and institutional capacity.  Liz O’Donnell, as junior Minister of Foreign Affairs, also contributed to the talks as a member of the Irish government delegation. Martha Pope, Senator George Mitchell’s chief of staff, coordinated the involvement of the US delegation, playing an important formal and informal role during the negotiations.

Crucially, the Northern Ireland Women’s Coalition (NIWC) participated in the multiparty negotiations through their elected representatives, Monica McWilliams and Pearl Sagar. As a cross-community party, the NIWC put an emphasis on maintaining the inclusive character of the negotiations process and in keeping open the lines of communication with civil society and political groups excluded from the talks. Particularly important was the Coalition’s achievement of a separate clause in the Agreement affirming the right of full and equal political participation for women. While we agree that the NIWC was not perfect and that not all women felt represented in their political stance, their contribution was remarkable on many levels. As Danielle Roberts has written, the coalition introduced the principles of inclusion, human rights and equality through their engagement in the negotiations. In the process they also had to find creative ways to navigate the hostile terrain of the male-dominated peace talks and establish working relationships with a wide array of actors. That women’s presence and contribution to the making of the GFA are dismissed in narratives of the peace agreement’s legacy is simply unacceptable.

What a reflection on the GFA’s 20th anniversary should also not downplay is that the aspirations for inclusion and equality included in the agreement have remained peripheral in the subsequent implementation and negotiation of the settlement. As I have argued elsewhere, the divisive nature of ethno-national politics has taken centre stage, also as a result of the power-sharing consociational formula deployed in the agreement.  Gender concerns have been relegated to the margins of the dominant political agenda and often left unaddressed. Numerous reports highlight the continued economic and social hardship experienced by women living in divided and interface communities, and the lack of social services and education for young people in these areas. Women have continued to express concerns around issues of safety, violence and ‘new’ forms of paramilitary activity. Community activists report a lack of attention to the persistence of entrenched gendered violence and discrimination. The fight for reproductive justice and bodily autonomy, challenged by conservative attitudes of major political parties,  also continues thanks to huge efforts by individual activists and groups such as Alliance for Choice. As both Claire Pierson and Kellie Turtle point out, while there have been some gains in the field of political representation and in the leadership of major NI parties, women have had limited access to key institutions and processes that focus on unresolved legacies of conflict and crucial contested issues, such as the parade commission and more recently the ‘Flags, Identity, Culture and Tradition’ Commission.

Generally, women’s and feminist groups have expressed dissatisfaction with a peace process wherein women and women’s claims are too often side-lined in favour of matters that are deemed of more immediate interest, such as ‘community relations’, ethnonational identity and stability/re-establishment of institutions.  This marginalisation has been intensified in the recent political deadlock that led to the suspension of NI devolved institutions, as well as in discussion around the uncertainties over  Brexit. In October 2017, I attended a consultation to discuss the implications for women, peace and security in the current moment of political crisis and uncertainty. Organised by Yvonne Galligan and Fiona Buckley, as chairs of the Gender Politics specialist group of the Political Studies Association of Ireland (PSAI), the meeting included NI activists, community development experts and interested academics. Participants expressed concerns over the unfinished gender equality politics of the peace process, as well as over the return of zero-sum positions spurred by controversies in NI local politics and  Brexit negotiations. Our discussion brought to the fore a sense that, yet again, a gender perspective and an attention to wider women’s concerns about the equality and rights agenda have been absent from political discussions over the future of the Agreement.

As fellow researchers and activists have argued, it is time that women’s contribution to building peace and their demands for social justice, equality and inclusion are fully acknowledged and taken seriously.  That 20 years after the Good Friday Agreement these complexities continue to be dismissed in discussions on the legacy and future of the peace process is why we insist that women’s and feminist critiques, in their diversity, are not only heard but amplified at every opportunity.

 

 

If you’d like to learn more about gender politics in Northern Ireland, take a look at Michelle Rouse’s piece here. For more pieces on the role of women and gender in conflict around the world, including such issues as sexual abuse by UN peacekeepers, women in conflict mediation, how women terrorists are portrayed by the media, and more,  see here.

Mediating Violent Conflict: Where are the Women?

by Dr Catherine Turner

Durham Law School, Durham University.

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Former Irish President Mary Robinson (left) and Ethiopia’s Hiroute Guebre Sellasie, the UN’s only female lead mediators

In his December 2016 inauguration speech, the newly elected Secretary General of the United Nations (UN), former Portuguese Prime Minister Antonio Guetterres, indicated that one of the priorities of his term in office would be conflict prevention. He emphasised the need to take more creative approaches to prevent the escalation of conflict, including notably a much stronger emphasis on the use of mediation and creative diplomacy. Prevention, it is said, is better than cure, particularly when conflicts such as Syria, Yemen, South Sudan and Israel/Palestine are proving so difficult to ‘cure’. The emphasis on mediation marks the culmination of a longer process of review within the UN of the ways it responds to violent conflict. A series of reports evaluating the UN’s peacebuilding architecture led to the 2016 adoption of the ‘Sustaining Peace Agenda’, marking a commitment to increased coherence across the organisation in co-ordinating peacebuilding activities.[1] Resolution 2282 (2016) emphasises ‘the importance of a comprehensive approach to sustaining peace, particularly through the prevention of conflict and addressing its root causes, […] and promoting […] inclusive dialogue and mediation…’

 This priority is also accompanied by a commitment by the new Secretary General to address a persistent problem within the UN – the need to ensure gender parity.

Resolution 2282 reaffirms the importance of women’s participation in peace and security, as well as stressing the importance of increasing women’s leadership and decision-making in relation to conflict prevention. The bringing together of these two priorities, namely an increased role for mediation in international peace and security and a commitment to increasing the participation of women in leadership roles within the UN, presents a good opportunity to consider the role of women in conflict mediation.

Of course, a commitment to increasing women’s participation in conflict prevention and peacebuilding is not new. Since the Security Council passed its landmark Resolution 1325 in 2000, the role of women in conflict resolution and peacebuilding has been on the Security Council agenda. The ‘Women, Peace and Security Agenda’ has consistently highlighted the underrepresentation of women in peacebuilding and a number of strategies have been implemented to try and redress this imbalance. There is a very significant body of work on the reasons that women should be included in peacebuilding. This work has highlighted the benefits of including women and has highlighted the different roles that women play within peacebuilding,[2] however it has largely overlooked the specific category of women in the role of mediator. This is despite clear policy commitments throughout the WPS resolutions that call for greater representation of women within high-level UN mediation teams.[3] And yet, despite over 10 years work on the WPS agenda, the number of women actively included in peace talks as mediators remains persistently low. Research shows that, of 31 UN-led mediation processes between 1991 and 2011, only 3 were led by women as the chief mediator. This translates into only 2.7 % of all chief mediators.[4] As a result in 2013 the Security Council passed resolution 2122 further requesting the Secretary General to support the appointments of women at senior levels as UN mediators and within the composition of UN mediation teams. By 2014 the UN had appointed two female lead mediators – the former Irish president Mary Robinson, and Hiroute Guebre Sellasie of Ethiopia – and women held a further 14% of senior UN mediation positions.[5] However this figure remains low in light of the Secretary General’s 2010 commitment to increasing the number of women appointed to lead UN peace processes.[6]

The very low statistics of women in the role of chief UN mediator creates an impression that women are simply not engaged in the mediation of violent conflict. Yet, in practice, we know this is not true.

In conflicted states across the globe women are actively involved in the mediation of violent conflict. The roles they play are increasingly being recognised through the creation of networks of women mediators such as those created by Nordic States, by African States, and in support of the peace process in Colombia. So why, when women are so active in mediation at the local level, do we not see more women in high level UN led processes? My research suggests a number of reasons for this apparent contradiction.

Responsibility for increasing the participation of women in mediation is divided across different departments within the UN. The appointment of high-level envoys or Special Representatives of the Secretary General – those we all recognise as the public face of UN-led mediation – lies with the Department of Political Affairs. The appointment of a mediator in this context refers specifically to the appointment of an individual by the Secretary General to pursue conflict diplomacy on his behalf. These are high-level political appointments and are almost exclusively at the discretion of the Secretary General himself. The Envoy will be the person responsible for convening the Track I – or state-level- talks. Women are very under-represented in these positions.

This focus on high-level talks and on the leadership role of international mediators can be contrasted with the approach taken by UN Women, the body tasked with working with member states to further the empowerment of women and support peacebuilding capacity within the State. At this level, mediation happens at a local level, within and between communities. It is at this level that women mediators are most strongly represented.[7] Women are regarded as bringing significant skills to mediation not only while official Track I processes are happening, but before and after those processes, in some cases enabling the process to take place. Through their roles as intermediaries women can create the conditions whereby talks are possible, for example by negotiating the cessation of hostilities to allow humanitarian access or opening channels for dialogue.[8]

The division of responsibility between the DPA and UN Women, both of which have very different operational mandates, creates a potential gap between mediation in local or national contexts and mediation that occurs at the international level. While women may demonstrate strong mediation skills and have considerable experience of mediating disputes, this experience does not result in inclusion in international mediation teams. There is a point at which women mediators tend to drop out of peace talks, and this is the point at which international actors become involved. At this stage, women are not considered to be ‘political’ enough to want to play a role in high-level mediation.

In these circumstances, women’s local experience is often overlooked in favour of bringing in international experts (who may also be women) to consult on the design and delivery of mediation processes. This means that not only do local women become marginalised in the process, but their insight into the conflict dynamics is also lost.

When women return to the process they return in the role of participants in the process—as a vulnerable group to be consulted rather than as the agents of change they have been. Further, the extent of women’s participation is also largely dependent on how willing the mediator is to include them,[9] leaving women inherently vulnerable to exclusion.

Of course not all women who engage in mediation at the community level will seek international opportunities. Similarly, there may be local gender dynamics that make it difficult for local women to step into political positions. But it is patronising to suggest that all women mediators are satisfied with working at the local level. Many have the skill, the experience and the ambition to play greater roles internationally. What is missing is a route to integrate them into formal processes.[10] While the role of Envoy will always be available only to a very small category of people, there is no reason that women should not play more prominent roles within high-level mediation teams.

There may be a very practical reason for the failure of women mediators to make the transition from local or national experience to international experience. It may simply be, for example, that they are not coming to the attention of the DPA at the time at which mediation teams are being selected. Member States therefore have a role to play in the career development and the nomination of women for inclusion within UN teams. If the DPA relies on nominations from Member States for identifying suitable candidates, then States can potentially support the work of both UN Women and the DPA by bridging the gap between the local and the global. This would include identifying women working as mediators within the community sector, the private sector as well as the Women’s sector, thereby casting the net much wider than traditional approaches. It would involve recognising the contribution that women mediators are already making to conflict resolution.

Taking a proactive approach to identifying women mediators, and ensuring that they benefit from the necessary career development opportunities at the national level, would be a big step towards a more coherent approach to ensuring that women’s contribution to mediation is made visible internationally.

Taking such an approach is consistent with the Sustaining Peace Agenda and speaks directly to the need for greater synergy between the relevant agencies responsible for sustaining peace and promoting gender parity.

[1] Resolution 2282 (2016)

[2] Anderlini, SN and J Tinman (2010) ‘What the Women Say: Participation and UNSCR 1325’ International Civil Society Action Network and Centre for International Studies; Paffenholz T et al. (2016) ‘Making Women Count- Not Just Counting Women: Assessing Women’s Inclusion and Influence on Peace Negotiations’ (Inclusive Peace & Transition Initiative & UN Women)

[3] Resolution 1325 (2000); Resolution 1889 (2009); UN Strategic Framework on Women Peace and Security 2011-2020; Resolution 2122 (2013)

[4] UN Women (2012) Women’s Participation in Peace Processes: Connections Between Presence and Influence. New York. United Nations

[5] Statistics from the International Peace Institute, 2013

[6] UN, 2010 UN Doc A/65/35- S/2010/466

[7] Conciliation Resources (2013) ‘Women Building Peace’ Accord Insight 16

[8] United Nations Global Study on the Implementation of United Nations Security Council Resolution 1325 (2015) 54

[9] Global Study

[10] UN Women (2012) Women’s Participation in Peace Processes: Connections Between Presence and Influence. New York. United Nations

Peacekeeper Sexual Exploitation and Abuse: Can Countries Actually Punish their Peacekeepers?

Trigger warning: This article deals with the very serious issue of sexual exploitation and abuse of women and children by UN peacekeeping personnel.

By: Dr. Melanie O’Brien

Allegations of peacekeepers committing sexual exploitation and abuse (SEA) are not new. They arose in the missions of the 1990s, such as the UN Transitional Authority in Cambodia (UNTAC) and missions in the former Yugoslavia. Use of prostitutes and sexual exploitation of women by visiting military forces goes even further back- a tradition with a long history.

The background, the numbers

The UN has spent over a decade trying to stamp out SEA by its peacekeepers; starting with a bulletin issued by the Secretary-General in 2003, setting the UN’s ‘zero tolerance policy’ on SEA. The statistics show that its actions were, in part, succeeding. While they had not managed to eliminate the criminal conduct, allegations dropped significantly. In 2005-6, allegations peaked at 357 and 340. By 2014, allegations hit an all-time high at 51. Yet in 2015, a new scandal hit, and allegations rose again for the first time since 2009, with 69 allegations. In addition, non-UN French peacekeepers were accused of SEA, and the UN was found to have behaved with gross negligence in failing to act on the information they had about these allegations. In 2016, the Security Council passed its first ever resolution on peacekeepers and SEA (Res 2272). The US Representative to the UN, Samantha Power, said it was the first time she really felt like the only woman representative on the Security Council.

What is SEA?

SEA by peacekeepers covers a wide range of activities, from rape and sexual abuse to human trafficking, enforced prostitution, pornography, sexual slavery and sexual exploitation. Victims are women and children (of both genders). Sexual exploitation is a very particular crime; it involves the abuse of the peacekeeper’s position of power and the trust of the victim in order to force sexual activity in exchange for money or goods. It is important to recognise the abuse of power element, because peacekeepers are tasked with protecting civilians, and their abuse of trust is particularly significant. Examples include the exchange of ration packs for oral sex from boys, or the exchange of a hairclip or food as little as an egg for oral sex from girls. There have also been issues of paternity claims due to children born to women engaged in consensual and non-consensual sexual activity with peacekeepers.

What’s being done about it

The UN established a Conduct and Discipline Unit (CDU), tasked with receiving reports of misconduct and carrying out preliminary investigations. Allegations with merit are referred on to the UN’s Office of Internal Oversight Services (OIOS), which then conducts further investigations. However, despite the necessity and good work of these offices, the CDU and OIOS are offices of the UN that can do no more than have a peacekeeper repatriated to their home country. Repatriation is the most serious repercussion for peacekeepers who commit misconduct, including criminal conduct such as SEA. In addition, I have been reliably informed by a UN employee that the UN is too much of a ‘boys’ club’ for SEA to ever really be stamped out- that the will simply is not there to take firm action.

A constant refrain heard is that it is the sending states’ responsibility to punish their own personnel. UN reports refer to the fact that sending states have exclusive jurisdiction over their personnel, and therefore it is up to sending states to punish their personnel. There the discussion ends. Not one report or assessment has considered whether states are actually capable of punishing their own peacekeepers for SEA crimes.

Examining the reality of the repercussions: A case study of Australia & The US

I have undertaken a comparative analysis of the laws of Australia and the United States, in order to determine whether or not these two states have the ability to prosecute their peacekeepers for SEA. The overall finding is: yes, but far from comprehensively. Australia has a much better capability than the United States, although amendments made to the US Uniform Code of Military Justice (UCMJ) in 2013 have improved the USA’s capacity.

Australian law applicable to the Australian Defence Force (ADF) is actually quite comprehensive with regards to sexual offences. Prohibited conduct under various pieces of legislation includes sexual assault, rape, rape of a minor, act of indecency with a minor, child pornography, sexual servitude, child prostitution, forced prostitution, trafficking, slavery, and sexual offences against children (tourism) outside Australia. However, there is no blanket prohibition on prostitution (which is of specific issue in conflict and post-conflict situations), and no proscription of sexual exploitation.

The UCMJ prohibits United States Armed Forces (USAF) personnel from committing patronising a prostitute, pandering, child endangerment, child pornography, rape, sexual assault, child rape, child sexual assault/abuse, forcible pandering, and anal rape. USAF personnel are also subject to the US Code, which outlaws sexual abuse, sexual exploitation of children, child sexual abuse, sex trafficking of children, forced and fraudulent sex trafficking and transportation for illegal sexual activity. These laws lack prohibition of forced prostitution, sexual exploitation of adults, and sexual slavery. While a discussion of this is out of the scope of this article, there are also definitional issues including those of sexual exploitation of children and rape.

The issue of extra-territorial jurisdiction

However, not only is it an issue of whether these countries have provisions in their criminal law that outlaw the SEA being carried out by peacekeepers, but whether these countries are permitted to prosecute their personnel for crimes committed outside their own territory. This is termed ‘extra-territorial jurisdiction’. In this regard, Australia comprehensively ensures that all legislation applying to the Australian Defence Force (ADF) is applicable extra-territorially. This includes civilians accompanying the ADF.

In terms of the United States Armed Forces (USAF), the situation is murky. Crimes under the US Uniform Code of Military Justice (UCMJ) that attract a punishment of greater than one year imprisonment are granted extra-territorial jurisdiction under the Military Extraterritorial Jurisdiction Act, including for crimes committed by civilians and contractors accompanying the USAF or employed by the Department of Defence or any other federal agency. However, this limitation of the Military Extraterritorial Jurisdiction Act  only to crimes with more than one year of punishment excludes extra-territorial jurisdiction over prostitution-related offences, which attract a maximum penalty of only 12 months prison. In addition, the majority of relevant offences under the US Code are not applicable outside the United States, with extra-territorial jurisdiction granted only to crimes involving sex trafficking, labour trafficking, forced labour, slavery and torture. This means that the USA is unable to prosecute its peacekeepers for sexual abuse, sexual abuse of children, sexual exploitation of children and transportation for illegal sexual activity.

The need for reform is urgent

Australia and the USA are countries that pride themselves in setting an example in being at the forefront of criminal law reforms, and they are indeed far ahead of many other countries with regards to proscribing sexual offences. However, it is evident that even these two countries are not fully capable of prosecuting their peacekeepers for SEA crimes. Where does this leave us, then, with regards to countries that are major troop contributing states, such as Bangladesh, Pakistan and India, where sexual offences are not taken seriously at a domestic level and legislative provisions are seriously lacking?

If the UN is ever going to seriously eliminate SEA by peacekeepers, then the new UN high-level task force on SEA needs to work with states to amend domestic laws in order to ensure that after repatriation, assuming the will to punish is there, so is the ability. Otherwise, peacekeeper perpetrators will continue to simply be repatriated with impunity, and these serious SEA crimes will endure.

For more on Resolution 2272, read Dr. Sarah Smith‘s piece ‘Introducing Resolution 2272: Preventing Sexual Exploitation and Abuse by Peacekeepers.

Gender and terror – woman first, fighter second?

Gender and terror – woman first, fighter second?

by Ashleigh McFeeters

As acts of political violence flood local and international news media outlets, it is imperative that academic study scrutinises, and if necessary, challenges, these news media representations. For the majority of people watching, listening to, or reading the news, these representations are the only information that they will receive. Hence, the content of these portrayals and how they are produced, have a significant impact on news consumers’ ideologies and understandings of political violence.

What is more, violence (and most threats to security) are deemed a primarily male domain. Women’s involvement in political violence jars with this ‘masculine endeavour. Women who commit acts of political violence are not depicted simply as combatants, freedom fighters or terrorists, but their representations in the news media are gendered. The terms female combatant/freedom fighter/terrorist are pregnant with gendering, as not only does the adjective ‘female’ come before combatant/freedom fighter/terrorist, which highlights her gender before her actions, but the fact that her gender must be qualified speaks volumes about the palatability of women engaging in political violence.

As the news media have a significant role in mirroring, creating and perpetuating social norms, the consequences of this is that the categories of representation can be adopted by news consumers and repeated and reiterated through dialogue and socialisation. The news media may be guilty of underpinning, rather than confronting, the dominant patriarchal culture and subsequently participating in women’s marginalisation in public life.

In society, women are generally defined by traditional gender roles, and these narratives are picked up by the news media and bolstered by repeated depiction. In the news media, women are still depicted using a formula of gendered accounts, especially with a focus on appearance. For example, hits in Google for Amal Clooney are blogs dedicated to her fashion sense. Unfortunately, her impeccable style looms large over her career as a barrister at Doughty Street Chambers. Moreover, Michelle Obama is as well-known for her clothes (Weaver, 2017) as she is for her campaign for female education. Although there is nothing fundamentally wrong with referring to someone’s clothes, when this becomes the be all and end all of a person’s characterisation this is where it is detrimental to women’s equality. If women’s news media portrayal is distilled down to an outfit, this constrains women’s roles to one-dimensional symbols of beauty rather than as figures of change.

This is particularly notable with regards to female combatants, as their acts of political violence are also framed by gender constructions. For example, the online New York Post’s headline ‘She’s Beautiful and She’s an Alleged ISIS Terrorist’ (Rosenbaum, 2015) gives the impression of puzzlement. Why would a beautiful woman choose to be a terrorist as surely her beauty could have been better spent elsewhere?! The currency (and commodity) of beauty is a valuable and looked-for bargaining chip in society, “[t]hey call her the ‘beautiful terrorist with a Mona Lisa smile’ and she’s as wanted as any work by Leonardo da Vinci”(Rosenbaum, 2015). The choice of the word “wanted” alludes to her being sought by authorities for terrorist offences, but also wanted as in desired sexually. The portrayal of her appearance and associated sexuality have overshadowed her political activism, and the fact that the allusion to her looks precedes her occupation underscores the notion that her appearance is more important than her political agency.

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Source: http://nypost.com/2015/10/26/turkish-police-hunt-for-smirking-female-isis-suspect/.

Furthermore, the interview of Viner (2001) and Leila Khaled of the Popular Front for the Liberation of Palestine (PFLP) is saturated with gendered connotations: “international pin-up”; “the gun held in fragile hands, the shiny hair wrapped in a keffiah, the delicate Audrey Hepburn face refusing to meet your eye”; “Her cheekbones are still like knives; her eyes are gentle but flicker when moved”. This effusively gendered account of Khaled champions her appearance over her acts of political violence in 1960s and 70s. The oxymoron of the ‘beautiful terrorist’ suggests an uneasiness as beauty and terror are conflated. The paradoxes of sharp cheekbones as signifiers of attractiveness and knives as deadly weapons, and of delicate hands holding lethal arms, are difficult to reconcile. On the one hand, the female combatant is aesthetically pleasing by adhering to the accepted norms of beauty, however, on the other hand, her beauty is balanced with the ugly acts of terrorists. It is challenging to negotiate and navigate between the two notions in the news media. Therefore, in order to acquaint the female terrorist with the news consumer, familiar frameworks of understanding are utilised.

One such framework is the theme of hypersexuality. The Independent.ie calls Idoia Lopez Riano “the seductress ‘Tigresa’ lost her lust for killing” (Govan, 2011a) that alludes to her sexuality and female libidinousness which portrays her as a lascivious profligate. Frequently, female sexuality is referenced to undermine a woman’s credibility and ability. Moreover, an ‘oversexed’ woman is portrayed as having aberrant sexuality which has led her to murder, rather than a conscious and deliberate choice based on political acumen. The “green-eyed femme fatale”(Govan, 2011b) is a seductress rather than a political activist.

Another theme used to characterise female combatants is that of motherhood imagery. Kendall (2015) reports that Mairead Farrell, a member of the Provisional IRA, endeavoured to distance the female volunteers from the Mother Ireland image “because it didn’t reflect what we believed in…we’d moved on from that”. The iconic maternal figure wholly undercuts any form of agency within female combatants by reducing them to flat characters with meaning imbued upon them, rather than revolutionaries with their own agency.

The themes used in the news media categorise the female combatants/terrorists/freedom fighters in such a way as to undermine any form of agency or choice. The female combatant is difficult to articulate to a mass audience, thus short-hand stereotypes paint her with broad brush strokes and whitewash her political activism to present a less threatening woman, rather than a violent agent of change. A significant outcome of preserving the image of traditional feminine passivity in the news media, is that the imagery is internalised by news consumers and this affects how female combatants are seen. By manipulating gendered cultural norms to advance their cause, women have a vital role in paramilitary organisations where certain activities cannot be performed by men without attracting unwanted attention and detection. However, this further exemplifies and solidifies women’s secondary role in society by fostering gender inequality. Women’s emancipation is truncated because social values, expectations and assumptions about women are preserved.

Women are underestimated because of their presumed non-threatening nature; they are not important enough to warrant investigation. Due to this, women can infiltrate areas without detection or suspicion. In addition, the sensitivities to searching women’s bodies allow women to feign pregnancy in order to hide bombs (Bloom et al., 2011).

Therefore, when the news media keeps these gendered narratives alive it is misinforming the population about female combatants’ capabilities. Perhaps this is over-reading and over-stating the news media’s role – however, as news media accounts of female combatants (and women in general) still present them as sex objects, these representations must be analysed and confronted. It is important to examine gender as a category of experience and a social process, but it must not be overemphasised as a reason for actions. When political violence is reduced to gendered reasons, such as the Chechen Black Widows (Stack, 2011), this only allows the female actors to be understood through the prism of gender, which is a social construction. This is internalised in social cognition and can have devastating effects upon women’s equality, as it fosters the male as the norm and female as the other.

Not only do gender stereotypes in the news media harm gender equality, they also impede counter- and anti-terrorism security measures. Nacos’s advice is that in order to combat terrorism, the opportunities for the manipulation of gender prejudices by terrorists must be shut down. A suggested method is to allow and encourage gender reality to inform counter-terrorism policies by removing the gender stereotypes of female combatants in the news media, as these stereotypes “reflect and reinforce deep-seated societal attitudes”(2005: 448).

To finish, this analysis of the news media endeavours to be critical rather than pessimistic as the news media also have the power to defy pre-existing norms by refusing to use familiar gender stereotypes to represent female combatants and women in general.

 Sources

Bloom M, Gill P and Horgan J. (2011) Tiocfaidh ar Mna: Women in the Provisional Irish Republican Army. Behavioral Sciences of Terrorism and Political Aggression 4: 60-76.

Govan F. (2011a) How the Seductress ‘Tigresa’ Lost her Lust for Killing. Available at: http://www.independent.ie/world-news/europe/how-the-seductress-tigresa-lost-her-lust-for-killing-26795118.html.

Govan F. (2011b) La Tigresa Kicked Out of ETA After Renouncing Violence. Available at: http://www.telegraph.co.uk/news/worldnews/europe/spain/8910436/La-Tigresa-kicked-out-of-ETA-after-renouncing-violence.html.

Kendall B. (2015) What Drives Women to Extreme Acts? Available at: http://www.bbc.co.uk/news/world-33600267.

Nacos BL. (2005) The Portrayal of Female Terrorists in the Media: Similar Framing Patterns in the News Coverage of Women in Politics and Terrorism. Studies in Conflict and Terrorism 28: 435-451.

Rosenbaum S. (2015) She’s Beautiful and She’s an Alleged ISIS Terrorist. Available at: http://nypost.com/2015/10/26/turkish-police-hunt-for-smirking-female-isis-suspect/.

Stack A. (2011) Zombies Versus Black Widows Women as Propaganda in the Chechen Conflict. In: Sjoberg L and Gentry CE (eds) Women, Gender, and Terrorism. Athens: The University of Georgia Press, 83-95.

Viner K. (2001) ‘I made the ring from a bullet and the pin of a hand grenade’. Available at: https://www.theguardian.com/world/2001/jan/26/israel.

Weaver H. (2017) The Significance of Michelle Obama’s Bold Red Dress During Her Final Speech as FLOTUS. Available at: http://www.vanityfair.com/style/2017/01/michelle-obama-final-speech-red-dress.

 

 

 

 

CHILD SOLDIERS: Where are the girls?

CHILD SOLDIERS: Where are the girls?  Kids, guns and the Patriarchy

By Marie Penicaut

Much has been written lately about African child soldiers.[1] We, in the West, are all familiar with the image of an eight or ten year old boy, holding an AK-47 too big for him, in a pseudo-military uniform, his eyes crying for help. We see him in newspapers and on television. We hear his horrifying story in documentaries, interviews, and sometimes self-written memoirs. Since Blood Diamond[2], we also see him in fiction films, poignant and stereotypical representations of these kids’ tragic lives that we too readily take for granted. And, as Nigerian author Chimamanda Ngozi Adichie wonderfully puts it in an inspiring TedTalk, “the problem with stereotypes is not that they are untrue, but that they are incomplete. They make the single story become the only story”.[3]

 

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The ‘typical’ child soldier

But where are the girls in all of that? Why don’t we see pictures of little girls carrying AK-47s? Why is there virtually no girl – not a single one – in Netflix’s critically acclaimed Beasts of No Nation[4], while many studies have proven that they constitute up to 40% of all child soldiers in some African contexts? Why are they so often completely ignored by academic literature, governments, international organisations and NGOs alike?

 

2

Agu’s all-boys unit marching towards combat. Screenshot from Beasts of No Nation.

The answer should not come as a surprise. Once again, the Patriarchy strikes: society puts us in two clear-cut categories, where according to our biological sex – male or female[5] – we are expected to behave in a certain way. Girls will naturally be peaceful, pacifist, and passive; boys will be inherently violent, aggressive, and impulsive. Hence the common belief that on one side, ‘girls don’t fight’, while on the other, ‘boys will be boys’ – which inevitably leads to the idea that war is the realm of men, and of men uniquely.

No wonder, then, that girl child soldiers are invisible, even when confronted with evidence that 10 to 30% of child soldiers worldwide are female, and 30 to 40% in recent African conflicts.[6]

When – and if – mentioned, it is only as simple camp followers. As the ‘good little women’ they are, they cook, do the laundry and take care of the youngest. But in reality, many receive military training and fight just like the boys.[7] During the Mozambican War of Independence (1964-74), which opposed the Portuguese government and FREMILO (The Mozambique Liberation Front), the rebels had mixed and female-only military units where girls and young women fought for the liberation of their country.[8] War was an opportunity for them to escape their gender roles. They were treated just the same as men. But once the country became independent in 1975, it was not long before they were sent back to the kitchen, and the crucial role they played was progressively forgotten.

 

 

Johnny Mad Dog or the stereotypical child soldier narrative

We should not underestimate the power of the media and of pop-culture. They both represent and influence the way we make sense of the world. The first thing I did when I started researching child soldiering in Africa (for my master’s dissertation) was to try to find as many fiction films and documentaries on the topic I could. Before entering the more nuanced and detailed academic discussion, I wanted to have the exact same perception of the phenomenon as everyone else.

I was shocked when I watched Johnny Mad Dog[9], the ultraviolent and ultra-clichéd adaptation of the eponymous novel by Emmanuel Dongala[10]. It tells Johnny’s story, abducted at 9 by rebels, now 15, in yet another unnamed African country torn by a senseless conflict – the Western discourse on African child soldiers is also profoundly racist: most movies are entirely decontextualized, as if the story could take place anywhere on the continent, negating the vast diversity of its 54 countries and the complex reasons that lead to armed conflict.

In the book, there are two narrators: Johnny and Laokolé, a strong and smart girl, who manages her way through a world of violence and chaos. But Sauvaire completely silences her to put Johnny at the centre of the story. She becomes a character of secondary importance. Even worse: while in the book she cold-bloodedly plans to kill Johnny, and does it, as she knows he intends to rape and kill her, the film ends on her indecision whether to shoot at him in self-defence. Her originally strong agency is simply erased.

Dongala’s resistant discourse is violated and distorted to conform to the expectations of a public for which violence is the monopoly of males.

 

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Johnny Mad Dog’s last image: Laokolé pointing a gun towards Johnny, breathing heavily, undecided.

 

Girl soldiers, the “ultimate victim[s] in need of rescue”[11]

If you are active on social media, there is a good chance that you have heard of the Kony2012[12] phenomenon. The 30-minute video posted on YouTube by Invisible Children, an NGO built by three American missionaries, was created with the aim of fighting the child-soldiering the three “discovered” in Uganda. The viral video – which gained 100 million views in less than a week – sums up pretty well all the stereotypes on child combatants. It also illustrates the difference of treatment between girls and boys in the global discourse: “the girls are turned into sex slaves, and the boys into child soldiers”. Things are simple. Girls do all the chores and are sex slaves. Boys are forced to fight and to commit atrocities. Girls don’t fight and boys don’t get raped. Even more than their male counterparts, girls are voiceless victims in need of rescue by the West.

 

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Kony and his ‘army of children’. Source: Screenshot of Kony2012

Many girls and women are victims of sexual violence, especially in the climate of conflict and instability that has affected a number of African countries in the past decades. But stories of rape and abuse too often eclipse other stories of bravery, resilience and survival.

Even more than boys, girls are denied any agency, any voice; they are denied the possibility to speak out and tell their story as they experienced it and not as we want to hear it.

In some contexts, becoming a soldier can be empowering for them. They can gain power, a surrogate family where they had none, and escape their traditional gender roles.[13] Their experience is too often reduced to the sexual violence they may or may not have undergone. In virtually every documentary I have watched for my dissertation project, girls are interviewed uniquely to talk about their experience of sexual violence, and often asked to provide gruesome details to satisfy the journalist’s, and the public’s, morbid curiosity.

It is not the first and certainly not the last time that women have been misunderstood and misrepresented because of sexist stereotypes. But the tragedy lies in the consequences this has on the ground, for real girls that have served weeks, months, and sometimes years in militias. Because ‘girls don’t fight’, many demobilisation, disintegration and rehabilitation programmes[14] exclude them. Only 5% benefit from them.[15] And when they do, their special needs are rarely addressed: no female clothing in the aid packages, no tampons or pads, no reproductive healthcare, etc. Skills training and camp activities are often biased towards males – learning masonry, carpentry, mechanics etc.[16] When going back to civilian life, because they are labelled as sexual victims, they are affected by a stigma of sexual activity. Whether real or not, this stigma leads to social exclusion. Many girls hide their rebel lives from their family and community and decide not to register for demobilisation because they are too afraid of the consequences – of being seen as monsters, as dangerous rebels, as ‘bush wives’[17] that can no longer marry.

More than anything else, girl child soldiers are victims of the Patriarchy. In the West, which ignores and silences them; and in their own societies that stigmatise and exclude them both as rebels and as trespassers of their gender roles. The child soldier phenomenon is a complex one. Its gender dimension is only one aspect of the issue, but one that deserves much more attention than it gets now.

Movies like Beasts of No Nation, Blood Diamond and Johnny Mad Dog, with a large audience and good critiques, are missed opportunities to challenge a simplistic, essentialist and dangerous understanding of child soldiers.

They perpetuate many harmful ideas and are representative of the status quo on the place of women in war: none.  “Just as these films were made mostly by whites and thus show a white bias, so were they made mostly by men and show a male bias.”[18]

 

—–

[1] Understood as “any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls, used a fighters, cooks, porters, messengers, spies, or for sexual purposes” (The Paris Principles, 2007).

[2] Blood Diamond, 2006. Directed by Edward Zwick.

[3] Available at: https://www.youtube.com/watch?v=D9Ihs241zeg.

[4] Beasts of No Nation, 2015. Directed by Cary J. Fukunaga.

[5] Many do not identify with these two categories.

[6] Denov, 2010, p. 13.

[7] Keairns, 2002, p. 13; Annan et al., 2009, p. 9.

[8] West, 2005.

[9] Johnny Mad Dog, 2008. Directed by Jean-Sébastien Sauvaire.

[10] Dongala, E. (2002) Johnny Chién Méchant. Paris: Le Serpent à Plumes.

[11] Macdonald, 2008, p. 136.

[12] Available at: https://www.youtube.com/watch?v=Y4MnpzG5Sqc.

[13] Valder, 2014, p. 44.

[14] UN-led child-specific programmes whose goal is to facilitate their return to civilian life. NGOs often intervene and collaborate at different steps of the process (UNDDR Resource Centre).

[15] Taylor-Jones, 2016, p. 185.

[16] Coutler, 2009, p. 64.

[17] Girls and women forced to ‘marry’ within the rebel group.

[18] Cameron, 1994, p. 188.

Introducing UN Resolution 2272: preventing sexual exploitation and abuse by peacekeepers

by Dr. Sarah Smith.

Barack_Obama_chairs_a_United_Nations_Security_Council_meeting

A United Nations Security Council meeting

Sexual exploitation and abuse committed by peacekeepers – and others attached to peacekeeping missions – against the populations they are mandated to protect has been a recurrent issue for the UN. Recognising this, in March 2016 the UN adopted its first Security Council resolution aimed at preventing sexual exploitation and abuse (given the acronym SEA) by those under UN mandate. The development and eventual adoption of this resolution took place in response to widespread reporting of allegations against peacekeepers, especially in the Central African Republic (CAR), as well as claims that peacekeepers continued to enjoy impunity despite evidence of a widespread problem. This resolution – Resolution 2272 – bodes well for accountability for SEA within the UN, something that has been blatantly absent previously. However, it is not a panacea and much will depend on whether and how the resolution is fully implemented in practice.

From the 1990s, monitors in peacekeeping missions began to problematise the sexual conduct of peacekeepers, highlighting among other things issues such as the proliferation of brothels and prostitution at peacekeeping sites, peacekeeper involvement in trafficking, and rape and sexual assault. The UN mission in Cambodia is an oft cited case, made infamous by the head of that mission who responded with ‘boys will be boys’ when Cambodians complained of the sexual misconduct of peacekeepers. Reports have also found that sexual misconduct is not limited to peacekeepers, but that humanitarian and aid workers, government and non-government organisation personnel, and private military contractors commit SEA as well. The Dyncorp scandal, popularised in the film The Whistle Blower, is perhaps the best-known example here. Each time new allegations surface, impunity and lack of accountability are cited as major obstacles for both preventing SEA in peacekeeping missions, and providing justice to those survivors who do report.

The UN mission in Cambodia is an oft cited case, made infamous by the head of that mission who responded with ‘boys will be boys’ when Cambodians complained of the sexual misconduct of peacekeepers.

Following a 2003 bulletin from the Secretary General, the UN instituted a ‘zero-tolerance’ policy on peacekeeper SEA. Zero tolerance explicitly prohibited peacekeeper sexual relations with persons less than 18 years of age; exchange of money, employment, goods or services for sex; and sexual relations between UN staff and beneficiaries of assistance. Yet the zero tolerance approach has had its challenges and has neither improved accountability nor reduced the number of allegations of SEA made against peacekeepers. Due to the extent of under-reporting by victims, and a culture of not reporting incidences of abuse among personnel, zero tolerance is really only effective in those cases that are identified. In turn, because of the legal framework set out by the Status of Forces Agreement (an agreement between the host government and the UN concerning the privileges, immunities and criminal accountability of UN personnel and peacekeepers), close cooperation between troop contributing countries, who are responsible for prosecuting their personnel, and the UN is required. Troop contributing countries have proven reluctant to prosecute those who return with allegations of SEA made against them. While the UN can make moral claims about the ideal performance of its personnel, it has often claimed that it lacks the mechanisms to respond appropriately or enforce accountability given its lack of jurisdiction over peacekeeper personnel.

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A multinational group of peacekeepers march at a Bastille Day parade in Paris.

While peacekeeper SEA has been a recurrent issue then, it reached another zenith in terms of public attention in 2015 and 2016. Attention focused on allegations of child abuse by peacekeepers in the CAR, and particularly on the failures of the UN to respond to these allegations. In April 2015, UN aid worker Anders Kompass was suspended for disclosing to French authorities reports of French troop involvement in the sexual abuse of children. While he was eventually exonerated and reinstated, Kompass announced his resignation in June 2016, citing impunity for those who were found to be abusing their authority and lack of accountability. As a result of consistent allegations though, and the public attention they were garnering, the UN established an inquiry into peacekeeper SEA in the CAR, the results of which are yet to be made public; however early reports indicate a widespread problem of sexual misconduct, including allegations of rape of minors and forced bestiality. In late-2015, the head of the mission in the CAR was forcibly resigned by UN Secretary General Ban-ki Moon, a move that perhaps presaged what may become an enforcement of accountability up the food chain for the crimes committed by peacekeepers.

Also in 2015, the NGO Aids Free World leaked an internal UN report that highlighted lack of enforcement of zero tolerance policy, lack of reporting and resultant impunity for peacekeepers who committed SEA. Paula Donavan, who co-founded the NGO, also established the Code Blue campaign to end immunity for peacekeeper SEA and cites the misapplication of the 1946 Convention on Privileges and Immunities, via Status of Forces Agreements, as a major obstacle. The leaking of this report and the widespread reporting of allegations, especially in CAR, led the Security Council to consider a resolution aimed at preventing peacekeeper SEA.

As groundswell grew, a precursor to the adoption of Resolution 2272 was the Secretary General’s report on SEA released in March 2016, which, as well as noting that allegations had increased, for the first time listed the nationalities of those peacekeepers that had had allegations made against them. As part of previously instituted measures to respond to SEA, the Secretary General is obliged to report to the Security Council on the number of allegations for each mission and the status of investigations into those allegations. The listing of nationalities in the March 2016 report was a break from past practice: the long held claim that  ‘naming and shaming’ countries that contributed troops that went on to be accused of SEA would be reluctant to contribute troops in the future – not an insignificant concern given difficulties in raising numbers for peacekeeping missions. As the UN has frequently cited that accountability enforcement lies with troop contributing countries, the idea that naming and shaming those countries that do not act would force their hand is considered to be one tool in the UN’s arsenal for ensuring accountability. The reluctance to do this has been viewed as acquiescence to politics over and above the rights and needs of abuse survivors.

The reluctance to do this has been viewed as acquiescence to politics over and above the rights and needs of abuse survivors.

It is not surprising then that the UN has previously been criticised for an apathetic response to allegations of SEA. While the problem is by no means resolved, Resolution 2272 marks a new break, in some respects, from how peacekeeper SEA has been handled previously. It is the first time the Security Council has devoted a session to the issue of SEA, much less adopted a resolution devoted to preventing it. As well as reaffirming zero tolerance, it mandates for the repatriation of entire military contingents or police units with allegations made against them. This is a significant change, beyond a lackadaisical implementation of zero tolerance, signalling a preparedness to put prevention of SEA above the politics of the Security Council. Should repatriation of entire contingents occur, this would, in effect, be a ‘naming and shaming’ of those countries because the repatriation of entire units cannot be done discreetly. This makes the repatriation of entire units – when and if that occurs – a deeply political statement. The resolution notes that the primary responsibility of investigating allegations of peacekeeper SEA still lies with troop contributing countries, but in essence establishes a response mechanism – repatriation – if the actions of troop contributing countries are found wanting.

There are however, a couple of potential problems facing the implementation of Resolution 2272. First, is in defining what the resolution actually stipulates. As Kelly Neudorfer has pointed out, terms in the resolution – in particular the criteria of “systematic and widespread” and “credible allegations” – remain undefined: that is, what constitutes ‘widespread and systematic’ and what is considered a ‘credible allegation’? Furthermore, where is the tipping point that needs to be reached for the resolution, and thus repatriation, to be triggered? These as well leave aside the important question of whether repatriation of entire contingents will eventually occur, even if these triggers are both defined and met. Inherent in the sending home of whole contingents is a preparedness to name and shame countries whose peacekeepers abuse. Given how such processes can be politicised, it is important that the implementation of Resolution 2272 does not succumb to the same political machinations that have seen a deep reluctance to name and shame troop contributing countries take precedent over accountability for peacekeeper SEA.

Second, it is unclear whether the repatriation of entire units will lead to better justice outcomes for survivors, when and if repatriation does happen. Certainly there is an immediate effect of removing perpetrators from the environment in which they are committing abuses. However, in terms of broader justice outcomes for survivors, the repatriation process raises some questions, even if the opaqueness of the resolutions terms is set aside. In the past, individual perpetrators of SEA have been repatriated, quietly removed from peacekeeping sites. This has in effect contributed to the silence surrounding the issue, as the perpetrator is no longer accessible, to their accuser or to investigating units (both local and UN) that are under-resourced and/or unwilling to pursue the matter forcibly. Even if a worthy investigation is conducted, it rests with the troop contributing country to act on it, which has proven unlikely. Based on my research in Timor-Leste, the repatriation of individuals is actually associated with limited justice outcomes and continuing impunity for peacekeepers – it was a source of frustration that perpetrators would disappear, not to face justice in the country. No information on what happened to the accused was provided to victims once they were removed from the mission. To quietly remove an offender, where they are out of access of accusers, to a home country unwilling to prosecute, does little in terms of justice or real change in the institutional culture.

While the adoption of Resolution 2272 deserves credit where credit is due, there justifiably remain questions in terms of both its scope and implementation. These relate chiefly to the exact parameters of the resolution and what the terms therein mean, which in turn impacts when and how the resolution is implemented. At the very least, at an institutional level, the adoption of Resolution 2272 represents a rhetorical commitment, a break from past practice – some evidence of institutional steps towards improved transparency and accountability. The practice of Resolution 2272 will need to move beyond rhetoric though if the prevention – the stated aim of the resolution – and, ideally, improved justice outcomes for survivors, are to be met.

For more on this topic, read Sarah’s article in the Australian Journal of International Affairs.

The Political Participation of Women in Post-Conflict Bosnia and Herzegovina

by Tajma Kapic

Mostar during war

Mostar, Tajma’s home town, during the conflict.

I was 26 and had just finished university when the war broke out. I vividly remember my terror, alone in my apartment, when the shelling started. I witnessed first hand the horror of war.

My personal experience as a survivor of the Balkans war and my continuing concern for the welfare of women in post-conflict situations lead me to my PhD research . My project is a comparative analysis of the impact of the Good Friday Peace Agreement (1998) and the Dayton Peace Agreement (1995) on the political participation of women in the post-conflict societies of Northern Ireland and Bosnia and Herzegovina.

After the initial shock, I started working in the local children’s aid organisation, distributing aid to children across the lines of division in my hometown of Mostar, in Bosnia and Herzegovina. Since the end of the war, I have been either learning about, or working towards improving the lives of women and girls in the countries affected by war and disasters.

While undertaking a Master’s degree in Development Studies, my thesis centred on the integration of Bosnian women refugees into three European countries: Ireland, Norway and Sweden. I focused on a comparative analysis of refugee laws and policies in those countries and their ability to provide services for refugees. The research gave me an insight into refugees’ own experiences of integration and the difficulties they were faced with in this process. My first project looked at women who were forced to leave their homes and their country as a result of the violent conflict in Bosnia and Herzegovina but I always felt that it was equally important to answer the question of what happened to the women who remained.

What are power-sharing agreements, and where are the women?

International norms on democracy and women’s rights agree that the presence of women in political institutions, as well as their participation in peace processes and post-conflict reconstruction is undoubtedly important. Two of the most celebrated power-sharing peace settlements in history, are the Dayton Peace Agreement that administratively determined today’s Bosnia and Herzegovina, and the Good Friday Peace Agreement, that ended a long running low-level conflict in Northern Ireland. These agreements have had varying impacts on the space available for women’s political participation.

Both countries are still deeply divided post-conflict societies and they both have peace agreements based on principles of power-sharing. So why, then, is the political position of women in post-Dayton Bosnia and Herzegovina weaker than that of women in post-Good Friday Agreement Northern Ireland?

In order to answer this question we should perhaps explain what power-sharing peace agreements are. These types of arrangements are also referred to as consociational peace agreements and they are becoming the international community’s, and the UN’s in particular, preferred solution for ending civil wars through peace negotiations as well as the main tool for building durable peace and democracy in war-torn and divided societies. The main tenets of consociational arrangements are: institutional representation for all significant groups, cross-community executive power-sharing, mutual veto powers in order to protect group’s vital interests and a high degree of autonomy for each community. Although these types of peace agreements are implemented and positively accepted around the globe, women are often ill-served by such settlements. Ethnicity and nationality lead consociational considerations and thus, considerations of gender equality suffer.

Mostar_bridge

Mostar, today.

The Dayton Agreement and the Good Friday Agreement: Differences and Similarities

The Dayton Agreement and the Good Friday Agreement are inarguably similar, but also unique in their own right. Both agreements are power-sharing arrangements between communities that are still divided. Moreover, they are similar in that were brokered under the influence and active participation of the international community, during the same US administration. Despite these similarities, there is a significant difference in the form of power-sharing arrangements contained in the agreements. They also differ in the outcome for women, with the political position of women in Bosnia and Herzegovina being weaker than that of women in Northern Ireland.

The Dayton Peace Agreement, which stopped the three-year long conflict in Bosnia and Herzegovina, is often described in academic literature as the new ‘social contract’ that was to set the standards for post-conflict societies. This peace agreement however, gave insufficient attention to women’s political rights. Further, since there was a complete absence of women in the peace process, it became a ‘dialogue of men’ which in turn created a conservative backlash and became a characteristic of women’s post-conflict experience in Bosnia and Herzegovina.

The women of Bosnia and Herzegovina, in the course of the twentieth century, have lived under six very different political systems, including two different kingdoms, two major wars, a socialist political system and a transitional democracy. Each of them developed its own notion of gender relations. Very few political systems include women in their apparatus, especially beyond the minimal numbers. First multi-party elections in many post-socialist societies in Europe manifested itself in a considerable reduction in number of women in parliament. The post-socialist states that emerged from the former Yugoslavia are certainly not an exception. The socialist’s one party rule in Yugoslavia had at least some egalitarian idea in relation to the inclusion of women in the political sphere, on principle, if nothing else. But amongst the nationalist parties in the former Yugoslav republics, there is not even an abstract egalitarian idea with regards to women and their political representation. The nationalist leaders of these former socialist states believe women should be seen but not heard, as the saying goes.

Women, who have during the conflict held a family and very often whole communities together, taking full responsibility for their survival and integrity, are very often left out in the processes of post-conflict economic, political and social reconstruction. While these processes are going on in their absence, and decisions are being made by their male national political leaders and in the presence of the international community representatives, women are told to go back to their ‘normal’ lives and activities. This has been especially evident in Bosnia and Herzegovina.

This has real-life implications for women in the political sphere today. So women’s participation in decision making bodies in Bosnia and Herzegovina went from having a female Prime Minister of Socialist Federative Republic of Yugoslavia in 1983 to not having one single female minister in 2008. The post peace agreement elections in Bosnia and Herzegovina had a near catastrophic result for women’s representation in the parliament and went from zero women representatives in the 1996 and 1998 elections to 7.14% in the 2000 general elections. The two following elections, in 2002 and 2006 had the same percentage of 14.29% of elected women parliamentarians, while elections in 2010, showed a slight increase to 16.67%. In the last general elections in 2014, women numbered 21.40% of representatives to the parliament of Bosnia and Herzegovina.

The Dayton Peace Agreement has also been criticised for not including gender within its framework and therefore disadvantaging women. It has also been criticised for the fact that its focus on ethnicity has meant that up to the present ethnic divisions have been privileged at the expense of other forms of social identity, including gender.

In the end, although it may seem that there are no implications that these two conflicts and their consequences are directly comparable, there are many theoretical similarities in the manner individuals, especially women, respond to their impacts and how they observe their place in the post-conflict setting. That being said, in relation to peace settlements, the Dayton Peace Agreement was less successful, since it reinforced patriarchal relations of power and traditional gender roles in this society through the subjugation of women. Considering that societies who fail to incorporate gender equality in all segments of its public and private spheres are likely to be submerged into a conflict, the gender blindness of the Dayton Peace Agreement can have extremely negative consequences for this still divided society.

With my research I hope to compare the routes to political office of women and the experience of women politicians, candidates and political activists in Bosnia and Herzegovina and Northern Ireland. Through this research, I also aim to contribute to a discussion on the reforms necessary to implement gender equality in political representation in these states and to contribute to the wider discussion on integrating gender equality into consociational peace agreements.