1. A (Wo)Man’s Honour: Have the Geneva Conventions Lost their Gender?
Noëlle Quénivet
University of the West of England

2. A Re-Interpretation of the GCs
Focus has been on Article 27 GCIV and the concept of ‘honour’ and violations that are deemed to be specific to women such as rape
Less focus though essential too: Articles 12 GCI and GCII and Article 14 GCIII
Re-interpretation of the relevant provisions
Use of subsequent legal instruments
Use of modern concepts
Use of different legal regimes to complement international humanitarian law
human rights law
international criminal law

3. Background Principle of non-adverse discrimination
Protection additional to general provisions: special rules on women
‘international humanitarian law affords general protection to women […] as part of the civilian population during armed conflicts and special protection due to the fact that they can be placed particularly at risk.’ (UN Security Council Resolution 1960, 16 December 2010, preamble)

4. Background Protection because
Vulnerability in relation to sexual violence
Roles as mothers or expectant mothers
In other words, tied to ‘their status in society and their sex’ (Beijing Declaration and Platform for Action, 15 September 1995, para 135) and the fact that they are seen as inferior (UNGA Declaration on the Elimination of Violence against Women, 20 December 1993, preamble)
Modern interpretation: ‘Singling out women in no way implies that they have less resilience, agency or capacity within the armed forces or as civilians, but rather acknowledges that women have a distinct set of needs and may face particular physical and psychological risks.’ (ICRC Commentary on Article 12 GCI, 2016, para 1427; ICRC Commentary on Article 12 GCII, 2017, para 1472)

5. The (In)Famous Article 27 GCIV
‘Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.’

6. Interpreting Article 27 GCIV
‘Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.’
Interpreting Article 27 GCIV
Literal interpretation: Rape, enforced prostitution and any form of indecent assault as examples of an attack on the honour of a woman
Definition of honour
usually about moral integrity
see Article 14 GCIII on POWs: covers moral integrity rather than physical harm
see previous sentence of Article 27 GCIV that also refers to ‘honour’ for all protected persons
can be personal though often determined in relation to men (chastity, modesty, frailty, dependence)
can also be societal (women as symbolic bearers of cultural and ethnic identity)
BUT ALSO: this protection is additional to the one in the preceding sentence…

7. Interpreting Article 27 GCIV
‘Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.’
Interpreting Article 27 GCIV
Contextual interpretation
Preceding sentence: humane treatment and low threshold of ‘insults’ and ‘public curiosity’
Subsequent sentence: principle of non-adverse discrimination
Teleological interpretation
Aim is ultimately to protect individuals, women included, from degrading and ill-treatment  overarching principle of humanity

8. Interpreting Article 27 GCIV
‘Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.’
Interpreting Article 27 GCIV
Subsequent legal instruments
Article 75(2)(b) of Additional Protocol I refers to ‘outrages upon personal dignity’: ‘outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault’
Article 75(1) of Additional Protocol I refers to ‘honour’ but in a completely different context: ‘Each Party shall respect the person, honour, convictions and religious practices of all such persons.’
Article 76 of Additional Protocol I refers to ‘respect’ and delinks rape, etc from honour: ‘Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault.’
1999 UN Secretary-General’s Bulletin: ‘[w]omen shall be especially protected against any attack’ (Section 7 paragraph 3)

9. Interpreting Article 27 GCIV
‘Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.’
Interpreting Article 27 GCIV
Reading through human rights law and international criminal law
Concept of ‘human dignity’
fundamental to human rights
Also used in international criminal law (ICTY, Furundzija, Judgment, 2 September 1998, para 183)
Rape, enforced prostitution and indecent assault understood as physical rather than reputational attacks upon a woman (ICTR, Akayesu, Judgment, 2 September 1998; ICTY, Furundzija, Judgment, 2 September 1998, para 183; ICTY, Delalic et al, Judgment, 16 November 1998, para 475)

10. Articles 12GCI/GCII and Article 14 GCIII
‘Women shall be treated with all consideration due to their sex.’ Article 12 GCI ‘Women shall be treated with all consideration due to their sex.’ Article 12 GCII ‘Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men.’ Article14 GCIII

11. Interpreting Articles 12GCI/GCII and Article 14 GCIII
‘Women shall be treated with all consideration /regard due to their sex’
Interpreting Articles 12GCI/GCII and Article 14 GCIII
Original commentary explained that three factors must be taken into account:
weakness,
honour and modesty,
pregnancy and childbirth
all relate to biological differences between men and women
Very similar to: ‘due regard must be paid to [women’s] physical strength, the need to protect their honour and modesty and to the special demands of biological factors such as menstruation, pregnancy and childbirth.’ (ICRC Model Manual on the Law of Armed Conflict for Armed Forces, 1999, para )
YET: within the broader context of Article 12 GCI that refers to respect, protect and care

12. Interpreting Articles 12GCI/GCII and Article 14 GCIII
‘Women shall be treated with all consideration /regard due to their sex’
Interpreting Articles 12GCI/GCII and Article 14 GCIII
Modern concept of gender
‘“gender” shall mean the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men’. (Article 3 (Istanbul) Convention on Preventing and Combating Violence against Women and Domestic Violence, 11 May 2011)
‘Gender refers to the socially constructed characteristics of women and men – such as norms, roles and relationships of and between groups of women and men. It varies from society to society and can be changed. While most people are born either male or female, they are taught appropriate norms and behaviours – including how they should interact with others of the same or opposite sex within households, communities and work places. When individuals or groups do not “fit” established gender norms they often face stigma, discriminatory practices or social exclusion – all of which adversely affect health.’ World Health Organisation

13. Interpreting Articles 12GCI/GCII and Article 14 GCIII
‘Women shall be treated with all consideration /regard due to their sex’
Interpreting Articles 12GCI/GCII and Article 14 GCIII
In this light, ‘consideration/regard due to their sex’ to be understood as referring to
biological (eg menstrual cycle and reproductive function, menopause)
socio-economic (eg power relationships between men and women, cultural and traditional practices); and
psychosocial factors (eg depression, eating disorders)
that may affect and determine women’s status (CEDAW Committee, General Recommendation No 24 on Article 12: Women and Health, 1999, para 12(a), (b) and (c))

14. Articles 12GCI and GCII and Article 14 GCIII
‘Women shall be treated with all consideration /regard due to their sex’
Interpreting Articles 12GCI/GCII and Article 14 GCIII
Articles 12GCI and GCII and Article 14 GCIII
Acknowledged in latest versions of ICRC Commentary:
‘Such needs and risks may be physical or physiological, but they may also stem from social, economic, cultural and political structures in a society.’ (Commentary to GCI, para 1428; Commentary to GCII, para 1473)
‘the distinct set of needs of and particular physical and psychological risks facing women, including those arising from social structures, have to be taken into account in order to comply with the obligation’ (Commentary to GCI, para 1429; Commentary to GCII, para 1474)