Judith Gardam

Protection of Women in Armed Conflict

Women increasingly bear the major burden of armed conflict. In recent years particular attention has been given to the question of violence against women in armed conflict. The significance of these developments is considerable. However the focus on violence—in particular on sexual violence—tends to obscure other important aspects of women’s experience of armed conflict that to date have been largely ignored. The purpose of this comment is to consider a range of ways in which women are affected by armed conflict and to assess the adequacy of international law in protecting them. This issue is in theory on the international agenda. For example the 1995 Beijing Platform for Action calls on “[g]overnments the international community and civil society including non-governmental organisations and the private sector...to take strategic action” in relation to the “[t]he effects of armed or other kinds of conflict on women including those living under foreign occupation.” However the available information is fragmented making “strategic action” difficult to formulate. (excerpt)

Women and the Law of Armed Conflict: Why the Silence?

The aim of this article is to extend the critique of human rights law by feminist scholars to humanitarian law—or the law of armed conflict, as it is more traditionally known. When reflecting generally on the role that international law plays in providing protection for women from the effects of violence the obvious starting point is the regime of human rights. So much of human suffering in todays world occurs, however, in the context of armed conflict where to a large extent human rights are in abeyance and individuals must rely on the protections offered by the law of armed conflict. 1 The debate that has been taking place for some years in the context of human rights as to the extent to which that system takes account of women&s lives needs to extend to the provisions of the law of armed conflict. Although commentators have convincingly demonstrated the limitations of the existing body of human rights law adequately to take account of the reality of women&s experience of the world, 2 the law of armed conflict is even more deficient. Moreover, despite the recent focus on rape in armed conflict as a result of the international outrage at the sexual abuse of women in the armed conflict in the former Yugoslavia, these shortcomings remain largely unaddressed. 3 At first glance this seems somewhat surprising until the special difficulties that flow from certain characteristics of the law of armed conflict are appreciated.

Women, Armed Conflict and International Law

Acknowledgments. Foreword. 1. Women, Armed Conflict and International Law. 2. The Impact of Armed Conflict on Women. 3. International Humanitarian Law, Women and Armed Conflict. 4. A Gender View of the Shaping of IHL. 5. UN Developments Concerning Women and Armed Conflict. 6. International Redress. 7. The Way Forward. A Final Word. Bibliography. Index.

Non-Combatant Immunity as a Norm of International Humanitarian Law

1. Introduction. 2. The Development of Noncombatant Immunity as a Customary Norm. 3. Challenges to the Norm of Noncombatant Immunity in the United Nations Era. 4. The Right of Self-Determination in International Law. 5. Wars of Self-Determination and Just War Theories. 6. Self-Determination and Protocol I. 7. Further Aspects of Protocol I which affect the Norm of Noncombatant Immunity. 8. The Codification of Noncombatant Immunity in Protocol I. 9. The Conventional Regulation of Non-International Armed Conflicts - Protocol II. 10. Noncombatant Immunity as a Customary Norm in International Armed Conflicts. 11. Noncombatant Immunity as a Customary Norm in Non-International Armed Conflicts. Conclusion. Select Bibliography. Index.

The Contribution of the International Court of Justice to International Humanitarian Law

This article considers the contribution of the International Court of Justice (‘ICJ’) to the development of the rules and principles of international humanitarian law (‘IHL’). In recent times, the contribution of the Court to this body of the law has been overshadowed by the work of the two ad hoc international criminal tribunals, the ICTY and the ICTR, established by the Security Council to punish those responsible for serious breaches of IHL. Nevertheless, the ICJ, in both its contentious and advisory jurisdictions, has considered the provisions of IHL on a number of occasions, and in the process has clarified many areas of IHL. This article is concerned with one particular issue: how does the Court perceive the fundamental nature of IHL? The analysis adopts two themes. First, an assessment is made of the part played by the Court in the process of bringing IHL into conformity with the changing emphasis of general international law. In both the Nicaragua case and the Nuclear Weapons Advisory Opinion the Court continued the process of what has been referred to as the “humanization of international law.” Second, the approach of the Court to the vexed issue of the relationship between ius ad bellum and IHL is considered. The conclusion is reached that the approach of the Court to this latter issue has undermined its contribution to infusing the humanitarian ethos into IHL.

A Role for Proportionality in the War on Terror

1 See generally, C. Tomuschat (ed.), Kosovo and the International Community: A Legal Assessment (The Hague, Kluwer Law Int’l, 2002). 2 See National Security Strategy of the United States of America, 17 September 2002, available at visited 22 October 2004. The National Security Strategy explicitly claims that international law recognizes the right to use pre-emptive force against an “imminent threat”. Whilst acknowledging that such a right is often conditioned, for example, by “a visible mobilization of armies, navies and air forces preparing to attack”, the Strategy argues that the concept of “imminent threat” must be adapted to the reality of threats from terrorist and rogue States. 3 For example, the US was at pains to assert that its 1998 attacks on a missile training camp in Afghanistan and a pharmaceuticals camp in the Sudan were both necessary and proportionate, see Letter Dated 20th August 1998 from the Permanent Representative of the United States to the United Nations Addressed to the President of the Security Council, UN Doc. S/1998/780 (1998). 4 The relevant correspondence can be found in British and Foreign State Papers, Vol. XXX, pp. 195, 201 (1842). For a full description of the Caroline Incident, see R. Jennings, ‘The Caroline and McLeod Cases’, 32 AJIL (1938) pp. 82, 91. A Role for Proportionality in the War on Terror

Energy and Poverty: A Proposal to Harness International Law to Advance Universal Access to Modern Energy Services

Although the Millennium Development Goals, declared by the General Assembly in the Millennium Declaration in 2000, do not refer specifically to energy, in reality none of the goals can be attained without universal access to modern energy services. Recent reports from the United Nations have drawn attention to the link between energy and poverty, and have shown that the access to modern energy services is essential for lifting peoples out of poverty and fundamentally improving their quality of life on an everyday basis. This article examines the nature and magnitude of the situation in less developed states lacking universal access to modern energy services and considers the current, limited national and international law in this area. The article then argues that it is international law that must play the major role in ensuring that universal access to energy services is realized. It considers what type of international instrument might best serve the purpose of achieving progress in improving modern energy services for those in poverty. Finally, the article provides a draft of such an instrument, together with an explanatory commentary, as a prototype of the steps that could be taken by the international community to achieve progress in this area if there is sufficient political will.

War, Law, Terror, Nothing New for Women

The muted feminist voice in the field of International Humanitarian Law (IHL) that part of International Law that regulates the conduct of armed conflict is discussed. One possible way to protect women from some of the consequences of armed conflict is for the Occupying Power to respond to discriminatory laws that are inconsistent with humane treatment and human rights requirements under international law.

A Human Dimension to the Energy Debate: Access to Modern Energy Services

This article examines the link between the need for universal access to modern energy services and poverty alleviation in developing nations. It first outlines the practical significance of the issue, identifies the factors that appear to have contributed to the lack of progress in this area and then considers the legal strategies that have so far been adopted by states to address this issue. The article makes the case for access to modern energy services to be incorporated within the human rights framework and analyses the potential that such an approach offers as a means of alleviating poverty.

Concluding Remarks: Establishing Common Ground between Feminism and the Military

The symposium on which this collection of chapters is based brought together feminist scholars and activists with representatives of the military of both sexes. It seemed fitting in this concluding chapter to focus on achieving a productive exchange of ideas between these two seemingly disparate sets of viewpoints. Consequently, what follows primarily reflects a conversation between feminism and the military. It inevitably has somewhat of an international humanitarian law focus as both of the authors, one a feminist academic lawyer and the other a former naval legal officer and now an academic, specialise in this particular field.