Feminist Multilateralism

By Maftuna Saidova In 2000, the UN Security Council enacted Resolution 1325 (SCR 1325), a legally binding international agreement which promotes the inclusion of gender issues in all UN initiatives such as conflict prevention and peace-building processes.  SCR 1325 is also the accomplishment of NGOs mobilizing to raise the complexities of gender politics to the international level as a precursor to peace and security. In the years since SRC 1325 was enacted, additional resolutions with similar scopes have followed.  The core aims of the resolutions include in-depth analysis of gender based crimes, participation of women in all areas of peace-building, protection of women during and after conflicts, and relief and recovery.  However, there has been no effort made to implement any conflict prevention and peace-building provisions of SCR1325 in any international frameworks, including the Responsibility to Protect (R2P) framework.  Although many scholars have urged for the recognition and implementation of the functional similarities between the SCR 1325 and R2P in diversifying state prevention methods beyond military intervention in mass atrocities, they have not yet been widely adopted. Following the resolutions, many studies carried out by various UN joint organizations have emerged.  These reports have confirmed the need to continue including gendered representation in processes concerning conflict prevention and peace-building; two of the main tenets of the R2P framework, which serves as the guideline for any interventions during armed conflict and crimes against humanity. As a result, R2P framework stands as an ineffective and vague gender neutral framework, which is unsurprising given that the members of the International Commission on Intervention and State Sovereignty (ICISS) did not have extensive knowledge of human rights or of gender issues such as gender inequality when drafting their report. It was found that most of the members of the drafting committee did not have any expertise on gender crimes being used as a weapon of war.  As a result, the report only mentions women three times in total, and never raises the issue of gender based crimes or the unique ways in which women experience conflicts in mass atrocities. Scholars like Ray Murphy and Roisin Burke have argued that the international community needs to proactively recognize that “Victimisation of women risks conceptualising them as solely vulnerable, as lacking agency and the capacity to participate in peace processes and state-building.” In other words, the failure to implement SCR guidelines in crucial international frameworks regarding international security further undermines peace-building and prevention by neglecting the much needed role and expertise of women in conflict areas.  Other studies have shown that institutionalized reduction in gender equality reduces the likelihood of armed conflict. Under the SCR 1325, addressing gender inequality requires tracking changes and issues on the national level to ensure that state institutions are inclusive and open to discussions regarding women’s rights. Such initiatives have the potential pave the way for other minorities who may feel marginalized in a state. In other words, gender inequality policies should be regarded as one of the important safety nets for maintaining peace in a nation. SCR 1325 provides a specific framework to address state induced violence and can therefore serve as a preventative tool for mass atrocities.

“Moving the Women, Peace, and Security Agenda from Paper to Practice” Introduction Fifteen years ago, the UN Security Council undertook addressing and understanding the disproportionate and unique impact of armed conflict on women in its maintenance of international peace and security. To this end, the Council adopted Resolution 1325 (2000), creating the Women, Peace and Security (WPS) agenda. The Council subsequently adopted seven more resolutions as part of this agenda—Resolutions 1820 (2008), 1888 (2009), 1889 (2009), 1960 (2010), 2106 (2013), 2122 (2013), and 2242 (2015)—which together inform the protection and promotion of women’s rights in conflict and post-conflict settings. In recognition of the fifteenth anniversary of Resolution 1325 and its creation of the WPS agenda, in 2013, the Council requested a review of 1325’s implementation, which resulted in the publication of the Global Study in October 2015. The Study identifies gaps, challenges, trends, and priorities to consider in moving forward with the WPS agenda. The Study undertakes an in-depth evaluation of the past fifteen years and highlights major successes in addressing gender issues arising in conflict, including the inclusion of a comprehensive list of gender crimes in the Rome Statute of the International Criminal Court (ICC); the appointment of a Special Representative on Sexual Violence in Conflict; and the adoption of General Recommendation No. 30 on women in conflict prevention, conflict, and post-conflict situations by the Committee on the Elimination of Discrimination against Women (CEDAW Committee). The Global Study also provides essential recommendations for the future of the WPS agenda’s implementation. Furthermore, the Study acknowledges that significant challenges remain to implementing the WPS agenda. Indeed, obstacles persist due to, for example, a lack of prosecutions of sexual violence crimes; a dearth of National Action Plans (NAPs) on women, peace, and security; and the rise of violent extremism, terrorism, and militarism. These challenges are rooted in one unaddressed weakness of the WPS agenda: its failure to explicitly incorporate the mandates of international law. This document will thus focus on how the panoply of women’s rights under international law can be used as a tool to achieve the objectives of the WPS agenda in two areas: (1) humanitarian responses to gender crimes and (2) prosecuting and deterring gender crimes. This document will also highlight the need for the Security Council to mainstream and integrate the WPS agenda into all of its work. Download PDF

The Draft Convention on Crimes against Humanity offers an opportunity to improve accountability for grave violations of international law; however in its current form, it continues to limit justice for sexual and gender-based violence. The International Law Commission (“ILC”) undertook the task of compiling a Draft Convention on Crimes against Humanity in 2014. In the ILC’s first draft, it replicated the definition of crimes against humanity verbatim from the Rome Statute of the International Criminal Court (“Rome Statute”)[1] for the sake of expediency, sparking unprecedented engagement from gender groups and experts to reform the provisions. As a result, during the final cycle of the ILC drafting process, 20 of the 33 states that submitted comments and a cohort of 23 UN experts called for the removal of an outdated definition of gender that failed to recognize a basis for persecution and limited justice and accountability for such crimes. Removing the gender definition was a crucial step towards recognizing that it is not enough to merely replicate existing language without reckoning with legal developments and the gendered dimensions of mass atrocity crimes. However, the call did not go far enough to address the draft treaty’s inadequacies on sexual and gender-based violence, including restrictive definitions of torture, enslavement, and other sexual and gender-based acts “of comparable gravity” that constitute crimes against humanity. This factsheet will focus on one such crime under the treaty—forced pregnancy. Download Fact Sheet  Lack of a Legal Basis for Differentiation Forced pregnancy is the only prohibited act under the draft treaty that makes an exception for conflicting national legislation. The draft treaty’s criminalization of forced pregnancy, taken directly from the Rome Statute, states: “This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.” This deference is in “stark contrast” to the criminalization of other mass atrocity crimes, where reliance on domestic law is a last resort. The inclusion of the qualification in the Rome Statute was solely the result of political compromise and has no functional or legal basis. Conservative states, led by the Holy See, feared that including forced pregnancy as a crime under the Rome Statute would impact laws and policies denying abortion access. This compromise gives undue authority to ideological and patriarchal concerns about control over women’s bodies rather than addressing the grave violation that it seeks to remedy. The exception also creates a legal inconsistency by simultaneously criminalizing forced pregnancy while creating a caveat for states to ban its equitable remedies, namely abortion access. Legal Developments on Forced Pregnancy and Abortion Services Contrary to the ILC’s assertion that the Rome Statute represents the consensus on crimes against humanity, modern formulations have evolved since its adoption. Several states and international judicial bodies have enacted legislation criminalizing forced pregnancy without reproducing the caveat for national laws. In the decades since the passage of the Rome Statute, abortion access has been deemed a fundamental right and many treaty bodies, UN experts, and courts have called for the decriminalization of abortion as a matter of state obligation. They have found that state restrictions on access to abortion, particularly in cases of rape, incest, and life and health endangerment, constitute violations of the rights to be free from torture, to health, to life, and to non-discrimination. The draft treaty must not codify language that is at odds with human rights standards. Concrete Actions to Promote Gender Justice The last stage of the drafting process of the Draft Convention on Crimes against Humanity demonstrated that gender considerations are essential to bring the treaty in line with modern conceptions of international law. However, using the removal of the definition of gender as a model, more must be done to ensure that gender is mainstreamed throughout the Draft Convention. To ensure that forced pregnancy is properly criminalized as a crime against humanity, states should: Conduct a gender audit of the Draft Convention on Crimes against Humanity to ensure that gender is effectively mainstreamed and that the articles reflect the progressive legal developments on gender since the adoption of the Rome Statute Only recommend the adoption of the Draft Convention with “This definition shall not in any way be interpreted as affecting national laws relating to pregnancy” removed from the definition of forced pregnancy contained in Article 2(2)(f) Enact or amend domestic legislation on crimes against humanity to criminalize forced pregnancy unconditionally Continue to stand up forcefully for abortion care as an equitable remedy to which survivors of forced pregnancy are entitled as a matter of right Download Fact Sheet (with citations)