Introduction
When one is asked to picture a combatant driving a tank or a member of an armed group fighting from the bush, one is most likely to picture a man. When asked to imagine a civilian, one is most likely to imagine a woman. Those “pictures in our heads”Footnote 1 are stereotypes, and these particular examples are gender stereotypes.
While stereotypes in general are a part of our daily lives, in which they perform a role of making the complex world more manageable,Footnote 2 they can also be profoundly harmful, as they can distort reality and reinforce prejudice. Gender stereotypes, in particular, are at the root of “many forms of exclusion, oppression, and violence against women”.Footnote 3 As will be shown in this article, in the context of armed conflict, gender stereotypes can even influence decisions with lethal consequences. Despite this, the challenges posed by gender stereotyping in the application of international humanitarian law (IHL) and the ways of addressing them remain under-explored in legal scholarship.Footnote 4
This stands in stark contrast to the approach to gender stereotyping under international human rights law (IHRL), where gender stereotyping is increasingly recognized as a human rights concernFootnote 5 and, in some cases, a human rights violation,Footnote 6 and has become one of the issues of focus for the Office of the United Nations High Commissioner for Human Rights (UN Human Rights).Footnote 7 In this regard, Article 5(a) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is considered to be the leading provision addressing the problem of gender stereotyping.Footnote 8 The fact that IHRL does not cease to apply in times of armed conflictFootnote 9 raises the question of whether IHRL obligations relating to gender stereotyping, particularly those under Article 5(a) of the CEDAW, extend to the context of armed conflicts and, if so, what practical value these obligations add in these settings. The present article seeks to provide answers to these questions. In doing so, it pursues an interpretative inquiry into the implications of the continued applicability of obligations of StatesFootnote 10 under Article 5 of the CEDAW during armed conflicts for the interpretation of the IHL rules on the conduct of hostilities. The article explores how these obligations interact – an issue that has thus far received very limited attention in scholarship and reflection in State practice – and advances a coherent way of reading them together.
The decision to focus specifically on the rules of IHL on the conduct of hostilities in this article is premised on several considerations. First, such a focus seeks to advance the gender discourse in IHL beyond the treatment of individuals in the power of the parties to an armed conflict. Second, as will be discussed below, the application of IHL rules in the targeting process provides particularly fertile ground for gender stereotyping. Finally, the chosen context allows the article to demonstrate how the harmful effects of gender stereotyping often remain unrecognized and misunderstood. In particular, the article challenges the common assumption that gender stereotyping in the targeting process is only harmful to men; on the contrary, it argues that gender stereotyping in the targeting process causes harm, including lethal, not only to men but also to women, due to the interrelation between the IHL principles of distinction and proportionality.
Following the present introduction, the article is structured in six substantive sections. The first section clarifies the meaning of gender stereotypes and gender stereotyping and answers the question of whether gender stereotypes can be modified at all. The second section examines the content and scope of Article 5(a) of the CEDAW, tracing its evolution over time. The third section seeks to determine the relevance of the CEDAW in armed conflicts in general. The fourth section explains why the targeting process is particularly fertile ground for gender stereotyping. The fifth section refutes the common misconception that gender stereotyping in the targeting process is only harmful for men; rather, it argues that such stereotyping can lethally harm both men and women. Finally, the sixth section discusses the practical relevance of Article 5(a) obligations in addressing gender stereotyping in the targeting process, followed by some concluding remarks.
What are gender stereotypes?
According to the most widely cited definition, a gender stereotype is “a generalised view or preconception about attributes or characteristics that are or ought to be possessed by, or the roles that are or should be performed by, women and men”.Footnote 11 The practice of gender stereotyping thus involves the use of such stereotypes “in forming an impression of an individual man or woman”.Footnote 12 In practice, gender stereotypes operate by attributing certain characteristics and roles to individuals solely on the basis of their membership of a particular sex or gender group, ignoring or diminishing their individual characteristics or actions they perform.Footnote 13 Put simply, gender stereotypes “freeze gender identities and gender roles”.Footnote 14 However, despite the fact that stereotypes are pervasive,Footnote 15 they are controllable and their influence on decision-making can be minimized or eliminated, as suggested by numerous studies.Footnote 16
In the context of the application of IHL rules governing the conduct of hostilities, the practice of gender stereotyping may manifest in the automatic association of men with combat roles and women with civilian status, and the use of these assumptions, whether intentionally or unintentionally, in determining who is a lawful target under IHL. Contrary to this, IHL requires that targeting decisions are based on objective criteria related to the status, functions and actions of individuals in an armed conflict,Footnote 17 rather than on generalized assumptions based on gender. It can nevertheless be argued that gender can, under certain circumstances, be one of the factors relevant to the determination of who may be targeted in an armed conflict. In fact, the International Criminal Tribunal for the former Yugoslavia (ICTY) has held that sexFootnote 18 and genderFootnote 19 may be relevant factors in assessing whether a person is protected from direct attack. However, this position is difficult to reconcile with empirical evidence showing that even armed groups which publicly espouse very rigid gender ideologies recruit women for various combat and combat-support roles.Footnote 20 Accordingly, gender cannot serve as a reliable indicator of an individual’s status or function in the conduct of hostilities.
Article 5(a) of the CEDAW: The evolving understanding of its content and scope
Article 5(a) of the CEDAW, which has its origins in Article 3 of the Declaration on the Elimination of Discrimination against Women (DEDAW),Footnote 21 is considered to be the first and most central international law provision in the discourse on gender stereotyping.Footnote 22 The text of the provision requires that
States Parties shall take all appropriate measures:
To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.
The vague formulation of States Parties’ obligations in Article 5(a) initially led to an under-estimation of its scope and potential.Footnote 23 In discussing the article, the early scholarship assumed that it was limited to obliging States Parties to initiate campaigns aimed at challenging gender stereotypes, echoing the scope of Article 3 of the DEDAW.Footnote 24 However, the fact that the provision was intended to have a broader and more radical meaning can already be observed in the analysis of the article’s drafting history. Specifically, the drafting history reveals that the drafters chose not to adopt the proposals, which would have limited the article’s scope to media and education campaigns.Footnote 25 According to Holtmaat, the drafting history shows that the drafters “were convinced of the damaging effects of stereotyped roles of men and women and clearly wanted to instruct the State parties to do ‘something’ about the continuing existence of such stereotypes”;Footnote 26 however, the text of the provision does not immediately reveal what exactly that “something” might be.
The broader potential of Article 5(a) has increasingly been revealed through its interpretation in the concluding observations, general recommendationsFootnote 27 and jurisprudence of the Committee on the Elimination of Discrimination against Women (CEDAW Committee).Footnote 28 The Committee contributed to transforming the understanding of Article 5(a) from a provision with a narrow focus to a “radical provision”Footnote 29 demanding a transformative change.Footnote 30 The following subsections zoom in on the specific ways in which the understanding of the scope and obligations of Article 5(a) has evolved.
The dual role of Article 5(a): Interpretative tool and self-standing norm
The placement of Article 5(a) among the so-called general articles of the CEDAW, which precede the substantive provisions, might suggest that its role is limited to that of an intra-conventional interpretive tool. Indeed, the CEDAW Committee itself has acknowledged that Articles 1 to 5 of the Convention “form the general interpretative framework for all of the Convention’s substantive articles”.Footnote 31 Thus, the Committee often makes connections between the obligations contained in Articles 6 to 16 of the CEDAW and Article 5(a), and reads the obligations contained in those articles through the lens of Article 5(a).Footnote 32
However, Article 5(a) is also widely acknowledged to be a self-standing norm.Footnote 33 This is confirmed by the practice of the CEDAW Committee and its explicit acknowledgement of Article 5(a) as substance-providing.Footnote 34 With regard to its placement in the CEDAW, it has been convincingly argued that this provision is “somewhat of a hybrid, connecting the broad provisions with the more specific ones” and thereby performing both an interpretative and substance-providing role.Footnote 35 Accordingly, the provision is understood to give rise to a substantive obligation of States Parties “to adopt measures to name, identify, challenge, dismantle, and remedy gender stereotypes, and the systems that support them in all societal spheres”.Footnote 36 The following analysis will focus on this self-standing obligation specifically.
Which gender stereotypes are covered by Article 5(a)?
Until very recently, when interpreting Article 5(a), the CEDAW Committee has been particularly concerned with stereotypes that are harmful or wrongful.
Harmful stereotypes have been defined as those constraining “the capacity of a person to cultivate their personal abilities, pursue professional careers, and make choices regarding their lives and life plans”.Footnote 37 For example, a stereotype that women are overly emotional could undermine their credibility in professional settings and potentially hinder their career progression, while not necessarily constituting a direct violation of human rights.
Wrongful stereotypes, in turn, are those that result “in a violation or violations of human rights and fundamental freedoms”.Footnote 38 For instance, a stereotype that men are better suited for leadership positions could play a role in hiring or promotion decisions, thereby not only perpetuating inequality but also violating the right to equal treatment and non-discrimination in the workplace. Importantly, the CEDAW Committee does not limit stereotypes addressed by Article 5(a) to those that affect rights guaranteed by the CEDAW:Footnote 39 it has, on numerous occasions, found gender stereotyping wrongful when it affected the realization of rights guaranteed under other human rights treaties.Footnote 40
While the distinction between harmful and wrongful stereotypes is thin, it appears to hinge on whether the stereotypes cross into the realm of human rights violations or perpetuate inequality in a more general sense. It also indicates that the CEDAW Committee considers there to be stereotypes which could be neither harmful nor wrongful per se.
However, it appears that the approach of the CEDAW Committee has recently shifted. In particular, in the most recent draft of General Recommendation No. 41 on “Dismantling Gender Stereotypes and the Unequal Power Relations that Sustain Them”, the Committee no longer focuses on wrongful and harmful stereotypes. In fact, this terminology is explicitly absent from the draft; instead, the draft suggests that “[t]he Committee considers that all gender stereotypes contribute to discrimination and therefore constitute a violation of women’s human rights under the Convention”.Footnote 41 It further notes that “[e]ven stereotypes that are perceived as ‘positive’, are in fact harmful to women’s enjoyment of their human rights”.Footnote 42
Recognition of the relational nature of gender stereotypes in Article 5(a)
A distinguishing feature of Article 5(a) of the CEDAW, compared to the rest of the Convention,Footnote 43 is that it not only focuses on women but also addresses stereotypes about men, and requires the modification and elimination of both.Footnote 44 According to Cusack,
[t]he framers of the CEDAW appear to have understood that gender stereotypes are relational in nature … and that stereotypes of women and men therefore need to be examined concurrently. The framers also appear to have understood that wrongful gender stereotyping not only disadvantages women, but also men and society in general and that focusing exclusively on gender stereotypes of women would … leave umbilical parts of the problem of wrongful gender stereotyping unresolved.Footnote 45
Thus, several authors have argued that Article 5(a) can be interpreted as protecting all gendered individuals,Footnote 46 and the CEDAW as “prohibiting all forms of sex/gender/gender identity discrimination, including those experienced by men and other genders”.Footnote 47 The present article does not address the full scope of this broader interpretive claim; instead, it limits its analysis to a binary classification of women and men, as this reflects the dominant framing in the existing discourse on gender stereotyping in the context of the CEDAW. This delimitation of scope is made for reasons of analytical manageability and should not be understood as expressing a position on the interpretive scope of Article 5(a).
Types of obligations under Article 5(a)
As highlighted at the beginning of this section, the obligations set out in Article 5(a) have been developed mainly through the interpretative practice of the CEDAW Committee. While the sixth section will examine the specific obligations most relevant to the focus of this article, it is important at this stage to provide a brief overview of how the obligations under Article 5(a) are generally conceived.
The CEDAW Committee rarely discusses the obligations under Article 5(a) within the tripartite framework of obligations – a conceptual model that categorizes States’ human rights obligations into obligations to respect, protect and fulfil. However, when discussing the obligations under Article 5(a) in general terms, the tripartite framework provides a useful analytical structure.Footnote 48
In general terms, the duty to respect in the context of Article 5(a) of the CEDAW requires all branches and levels of government to refrain from engaging in gender stereotyping across all areas of their activities.Footnote 49 Under the duty to protect, States are obliged to implement comprehensive measures to prevent gender stereotyping by private actors.Footnote 50 In the past, the CEDAW Committee has primarily focused on stereotyping in the media and education, recommending the adoption of legislative measures or the promotion of voluntary cooperation in this area.Footnote 51 However, it has been gradually expanding the scope to a larger number of non-State actors, including families, businesses, corporations, media, religious and educational institutions, workplaces, artificial intelligence and the digital space, and social media outlets, requiring that States “oversee and regulate the activities of these non-state actors and require them to create effective self-regulatory mechanisms aimed at the elimination of gender stereotypes through their services and platforms”.Footnote 52 Lastly, the duty to fulfil, within the framework of Article 5(a), entails that States Parties “adopt measures to name, identify, challenge, dismantle, and remedy gender stereotypes, and the systems that support them in all societal spheres”.Footnote 53
The sub-obligations, which are cross-cutting across all dimensions, include the obligation to examine laws, policies and practices to determine whether they give rise to any forms of gender stereotyping or fail to effectively protect individuals from gender stereotyping by private actors, and to take appropriate measures to address such situations. Furthermore, States are also required to establish mechanisms allowing for the investigation of allegations of gender stereotyping and to provide effective remedies to those harmed by such gender stereotyping.Footnote 54
The relevance of CEDAW obligations in armed conflicts in general
There is a general consensus that IHRL, as a body of law, does not cease to apply during armed conflicts, meaning that it applies complementarily with IHL.Footnote 55 However, the relevance of any particular IHRL treaty in armed conflict situations varies, and depends on a number of circumstances.Footnote 56 The present article adopts the methodology proposed by Mačák in the context of assessing the relevance of IHRL treaties in interpreting Geneva Convention IV; while the context of the present discussion is broader, Mačák’s methodology is equally relevant and workable in the present context.Footnote 57
First, the relevance of a particular IHRL treaty depends on whether that treaty is generally applicable in armed conflicts alongside IHL. In order to determine this, it is necessary to analyze whether an IHRL treaty contains provisions that expressly exclude its application in situations of armed conflict, or similar provisions having the same effect.Footnote 58 The CEDAW does not contain provisions that specifically clarify its relevance in armed conflict settings, and does not contain provisions explicitly focusing on the needs of women in armed conflicts. However, the CEDAW Committee has clearly affirmed the full application of the Convention in armed conflict situations in its General Recommendations,Footnote 59 stating that the CEDAW and IHL “apply concurrently and their different protections are complementary”.Footnote 60 The CEDAW Committee’s practice of continuing to monitor the compliance of States Parties in armed conflicts confirms this.Footnote 61 Moreover, the CEDAW does not allow for derogations, which confirms that all of its provisions continue to apply in all circumstances.Footnote 62
Secondly, the relevance of any particular IHRL treaty in armed conflict situations depends on the geographical scope of application of the treaty in question. It is uncontroversial that, at a minimum, an IHRL treaty co-applies with IHL in the State Party’s own territory, but the question of whether and to what extent a given treaty applies extraterritorially is usually more complex and varies from treaty to treaty. While the CEDAW does not contain the jurisdictional clause, the CEDAW Committee clarified in its General Recommendation No. 30 that
the obligations of States parties also apply extraterritorially to persons within their effective control, even if not situated within their territory, and that States parties are responsible for all their actions affecting human rights, regardless of whether the affected persons are in their territory.Footnote 63
The Committee went on to clarify in detail that the CEDAW applies to an all-encompassing range of conflict and post-conflict situations, including, for the present purposes, “to lawful or unlawful military actions in another State”.Footnote 64
All of this suggests that all CEDAW provisions, including Article 5(a), continue to apply to all types of situations arising in armed conflicts. However, given the focus of this article on the conduct of hostilities, one possible objection merits a discussion here. A possible objection in this context could be based on the case law of the European Court of Human Rights (ECtHR) concerning alleged violations that occurred during the period of active hostilities in an armed conflict, which the ECtHR famously described as a “context of chaos”.Footnote 65 The ECtHR held that the “context of chaos” represents an exceptional situation in which it may be impossible to establish control for the purposes of extraterritorialFootnote 66 and even territorialFootnote 67 jurisdiction as defined in Article 1 of the European Convention on Human Rights (ECHR). It has been argued that these judgments of the ECtHR are a form of the “twenty-first century separatism” between IHRL and IHL,Footnote 68 where the ECtHR stops short of saying that the ECHR does not apply in armed conflicts, but instead says that it is unable to ascertain who is responsible for ensuring the rights in question, effectively creating a protection vacuum.Footnote 69 Although these judgments concern the ECHR and its jurisdiction clause and are not necessarily relevant in the context of other IHRL treaties or representative of IHRL more broadly, they may nevertheless serve as an argumentative tool for those sceptical about the (full) co-applicability of IHL and IHRL in armed conflicts in general and the conduct of hostilities in particular. In the context of the issue of gender stereotyping in armed conflicts, such judgments may serve as a legally sophisticated pretext for a tendency to downplay and marginalize gender issues in armed conflicts, especially when it comes to their application in active combat. It is therefore important to pre-emptively address this possible argument.
In response, it should first be noted that the judgments of the ECtHR on the basis of which such an argument could be raised received overwhelming criticism, specifically on the jurisdictional point.Footnote 70 Whilst the authors raising the criticism of the judgments were cognizant of the challenges that the Court faced, they ultimately did not consider that the jurisdictional sacrifices it made were the best way to deal with those challenges.Footnote 71 Second, the ECtHR did not follow the same approach in its more recent judgment in Ukraine and the Netherlands v. Russia.Footnote 72 While the Court avoided explicitly overruling its previous approach,Footnote 73 the judgment has been widely understood as responding to the criticism of its earlier rulings and as being a deliberate move away from the restrictive “context of chaos” approach to establishing jurisdiction in the conduct of hostilities.Footnote 74 Furthermore, the ECtHR’s “context of chaos” approach also contradicts the views of other regional and international human rights treaty bodies.Footnote 75 Moreover, in these cases, the ECtHR discussed jurisdictional issues from the perspective of jurisdictional models based on control over territory (a spatial model)Footnote 76 and over a person (a personal model).Footnote 77 In contrast, the wording of General Recommendation No. 30 and the examples that the CEDAW Committee provides suggest that the CEDAW applies not only in situations where a State has effective control over territoryFootnote 78 or a person, but also in situations where the State’s actions “affect human rights” (an “impact” model, sometimes also referred to as the “control over rights” model).Footnote 79 This suggests that jurisdiction under the CEDAW is conceived broadly.
Finally, while the absolute majority of IHL rules apply in armed conflicts, IHL also contains a number of obligations applicable in peacetime. Peacetime obligations under IHL are specifically meant to ensure that the rules of IHL are actually working in the “context of chaos” of an armed conflict.Footnote 80 Such obligations include,Footnote 81 inter alia, an obligation to disseminate IHL as widely as possible and integrate IHL into the training of armed forces,Footnote 82 an obligation to have legal advisers properly trained in IHL available,Footnote 83 and an obligation to review new weapons for compliance with IHL.Footnote 84 As will be explained in more detail below, the obligations under Article 5(a) of the CEDAW are particularly relevant in the context of such peacetime IHL obligations.Footnote 85 The co-application of the IHL peacetime obligations and Article 5(a) lays a foundation for the practical feasibility of implementing obligations under Article 5(a) even in the “context of chaos” caused by armed conflicts.
The application of IHL rules on the conduct of hostilities in the targeting process: Fertile ground for stereotyping
The term “conduct of hostilities” is not defined under international law, but it is generally understood to refer to armed confrontations between the parties to an armed conflict.Footnote 86 The IHL rules on the conduct of hostilities protect civilians from the effects of such confrontations by limiting such effects to those which are necessary to achieve the aim of military degradation of the enemy.Footnote 87 Such rules are applied in the targeting process, which has been described as “[t]he activity of planning the use of armed force, even when used in defence, together with the actual launch of an attack”.Footnote 88
The key rules of IHL on the conduct of hostilities can be summarized, in the most general terms, as requiring that any attack must be directed at a lawful target (principle of distinction), comply with the proportionality rule, be carried out with all feasible precautions to minimize harm to civilians and civilian objects, and use lawful means and methods of warfare.Footnote 89 These rules are largely contained in Additional Protocol I (AP I), but are also binding on non-parties by virtue of customary law.Footnote 90 This article argues that the application of these rules in the targeting process is particularly susceptible to the influence of stereotypes, including, and especially, gender stereotypes, for three main reasons that are discussed below.
Rules calling for qualitative judgements increase the likelihood of stereotyping
Studies on the psychology of stereotyping demonstrate that stereotyping is more likely to occur when individuals have to make qualitative judgements in circumstances in which the data is “open to multiple interpretations”.Footnote 91 Decisions that involve “counting” – quantitative ones – are relatively immune to stereotyping, as they rely on clear, measurable data points;Footnote 92 in contrast, qualitative judgements calling for an assessment of excessiveness, extent or feasibility are more susceptible to the influence of stereotypes.Footnote 93
The key targeting rules each require qualitative, context-dependent assessments in their application. The examples particularly relevant for the purpose of the present article are the IHL principles of distinction and proportionality.Footnote 94 Specifically, in applying the principle of distinction, a decision-maker has to rely on context-dependent and often ambiguous indicators to determine whether a person can be targeted based on their status, function or actions. This creates space for the influence of subjective gendered assumptions about individuals’ roles and behaviour in targeting assessment.Footnote 95
The principle of proportionality likewise involves multiple evaluative steps, each requiring qualitative assessment. The principle of proportionality prohibits attacks that “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.Footnote 96 The proportionality analysis cannot be reduced to a simple counting exercise and an arithmetic comparison; while quantitative elements, such as the number of civilians and civilian objects in the area, are relevant to the proportionality assessment, the proportionality analysis ultimately requires a qualitative judgement. In particular, decision-makers must evaluate the expected damage and the anticipated military advantage, determine that such military advantage is direct and concrete, and assess these factors in relation to each other in a given operational context. Therefore, the application of the principle of proportionality is fundamentally qualitative and open for interpretative discretion,Footnote 97 making it susceptible to stereotyping.
It may be argued, however, that interpretive discretion in the application of the principle of proportionality is constrained by the “reasonable military commander” standard. While the standard cannot be found in the text of the IHL treaties, it has been developed in the international criminal law context by the ICTYFootnote 98 as a benchmark against which the proportionality assessment has to be made or judged.Footnote 99 However, even if one accepts that the standard has normative value and specifically in the context of IHL, rather than being confined to international criminal law where it was developed, it remains questionable whether it can function as an objective element in the proportionality assessment.Footnote 100 Specifically, it has been argued that the application of the standard merely substitutes one subjective notion (“excessive”) with another (“reasonable”), ultimately leaving a broad margin of discretion to military commanders.Footnote 101 Nevertheless, it has been suggested that the standard may be objectified through, inter alia, legal education, training and military exercises, and targeting procedures and processes.Footnote 102 However, these measures can serve as safeguards against cognitive biases, including gender stereotypes, only if they are designed to account for the influence of such biases on targeting decisions.
High cognitive load and stress increase the likelihood of stereotyping
Several social psychology studies have found that higher cognitive load, such as when people are processing large amounts of complex information or acting under time pressure, increases the likelihood of relying on cognitive shortcuts, including stereotypes, when processing information and making decisions.Footnote 103 This is because in demanding information-processing contexts in which cognitive resources are limited, stereotypes serve as tools for simplification, allowing a decision-maker to reach a decision based on a series of associations rather than engage in a systematic and careful information analysis.Footnote 104 Another study also found a link between arousal levels and stereotyping;Footnote 105 in particular, it showed that when people performed judgement tasks at a time of day when they were more tired and less focused, they exhibited increased use of stereotypes.Footnote 106
Targeting decisions in armed conflict take place in complex, dynamic and often unpredictable environments. In these circumstances, such decisions often involve assessing large amounts of diverse and sometimes controversial information under time pressure and responding to changes in the operational landscape around the clock. As a result, individuals making targeting decisions often have a high cognitive load and may be physically and psychologically strained, increasing the likelihood that they will rely on stereotypes. Furthermore, while resorting to artificial intelligence (AI) may reduce the cognitive load of a decision-maker, it does not eliminate the risk of stereotyping, as AI systems may replicate and amplify biases embedded in their training data and design.Footnote 107
Gendered environments perpetuate recourse to gender stereotypes
The targeting process is fertile ground for gender stereotyping due to the environment in which targeting decisions take place.Footnote 108 Armed conflicts in general are often characterized as one of the most gendered human endeavours,Footnote 109 and the military as a gendered institution.Footnote 110 Despite historical examples of women’s contribution to combatFootnote 111 and the increasing number of women in combat roles in armiesFootnote 112 and armed groupsFootnote 113 around the world, armed conflicts and the formal and informal military remain largely dominated by men, especially when it comes to decision-making and leadership positions. Therefore, the context of armed conflicts remains deeply shaped by traditional gender roles and assumptions.Footnote 114
Gender stereotypes are particularly widespread and resistant to change in already gendered environments, as they self-reinforce there.Footnote 115 In particular, gendered environments accentuate the visibility of stereotypical behaviours and role divisions, which in turn makes such behaviours and divisions seem natural and inherent rather than subject to questioning. Consequently, the military sphere, which is profoundly shaped by conventional gender norms, represents a prime context in which gender stereotypes are both operationalized and reinforced.
The effects of gender stereotyping in the targeting process
The negative effects of gender stereotyping in the conduct of hostilities, and in particular in the application of its central principle, the principle of distinction, are routinely discussed in terms of the harm that such stereotyping causes to men. Indeed, men are more likely to be over-targeted due to a stereotypical view of men as combatants and fighters, which is built upon another stereotype of men being courageous.Footnote 116 When it comes to women, one may have an impression that gendered application of the principle of distinction is not only harmless for women, who are stereotypically portrayed as “innocent civilians”, but is even beneficial for them, as it spares them in armed conflicts.
Nevertheless, the view according to which women are “spared” as a result of gender stereotyping in armed conflicts is misconceived. First, such a view has been challenged on the basis of arguments highlighting the non-lethal harms that the gendered application of the principle of distinction causes to women: the exclusion of women from disarmament, demobilization and reintegration programmes and peace negotiations,Footnote 117 the perpetuation of stereotypes about women and victimhood,Footnote 118 and the failure to recognize the diverse roles that women play in armed conflicts.Footnote 119 Moreover, the gendered application of the principle of distinction does not, in fact, “shield” women from lethal harm; indeed, gender stereotyping in the targeting process may actually expose women to lethal harmFootnote 120 because of the interrelation between the principle of distinction and the proportionality rule.
To recall, the IHL proportionality rule prohibits attacks that are expected to result in incidental loss of civilian life, injury to civilians or damage to civilian objects if such consequences would be excessive in relation to the anticipated concrete and direct military advantage.Footnote 121 The assessment of what constitutes direct military advantage in proportionality calculations is closely linked to the principle of distinction, insofar as the identification of military targets informs the anticipated military advantage of an attack. Accordingly, the determination of the expected scope of lawful targets in an attack, made in the first analytical step of the targeting analysis, serves as the basis for the proportionality analysis undertaken in the second analytical step thereof. Essentially, the greater the anticipated military advantage from an attack, the greater the degree of tolerable harm may be.
Thus, where men are stereotypically associated with combat roles and functions and consequently over-targeted, the anticipated military advantage expected from an attack increases, which may lead to a rise in the threshold of tolerable civilian harm in the proportionality analysis. In many operational contexts, this creates a possibility that women, stereotypically associated with civilians, will be exposed to lethal harm. Therefore, even where the gendered application of the principle of distinction may appear to “spare” women from lethal effects, the subsequent application of the proportionality principle to the inflated anticipated military advantage may nevertheless expose them to such harm.Footnote 122
It must be noted that, while this argument is based on the structural logic of IHL rules, combined with the prevailing empirical observations about the ways in which gender stereotypes operate in armed conflicts, its implications will vary depending on the factual circumstances of each particular situation. The actual lethal harm caused specifically to women would, to a considerable extent, depend on the specific decisions made by individual commanders as well as the particular demographic context in which the operations take place. Moreover, gender stereotyping in the targeting process could also operate in an opposite way: for example, where women fighters are misclassified as civilians, the anticipated military advantage may be assessed as lower, while the expected civilian harm may be assessed as higher. In the proportionality analysis, this could ultimately increase the likelihood that an attack will be suspended or cancelled.
Two points may be inferred from the analysis in this section. First, the view that gender stereotypes in the application of targeting rules spare women from lethal harm is argued to be erroneous, since gender stereotyping in the application of the rules on the conduct of hostilities may cause and increase lethal harm to both men and women. Second, this analysis also illustrates how the negative effects of gender stereotyping are not always immediately apparent and may often go unnoticed without closer scrutiny. This underscores the importance of uncovering and analyzing the effects of gender stereotyping across different contexts.
The practical relevance of obligations under Article 5(a) in armed conflicts
It has been established that gender stereotyping in the application of IHL rules on the conduct of hostilities may cause lethal harm to both men and women, and it has also been established that the CEDAW, and consequently Article 5(a), continues to apply in armed conflict situations. However, what does this mean in practice, and how can Article 5(a) help address gender stereotyping in the targeting process? As one commentator has rightly noted, “[i]t is one thing to assert that human rights law applies during times of armed conflict. It is quite another to demonstrate, with an appropriate degree of precision and clarity, what this means and requires on the ground.”Footnote 123
In practice, the conclusion that an IHRL norm continues to apply in armed conflict means that it can affect the regulation of armed conflict in two ways: through the direct application of the norm in situations of armed conflict, or through the process of informing the interpretation of certain IHL norms.Footnote 124 In the first case, an IHRL norm remains “subject to its own scope of application”Footnote 125 and applies directly to situations of armed conflict without coming into direct contact with IHL norms. In the second case, an IHRL norm informs the interpretation of an IHL rule, thereby becoming integrated into the latter and indirectly applicable to a particular situation in an armed conflict.Footnote 126 It is submitted that the obligations under Article 5(a) of the CEDAW are relevant in the conduct of hostilities in both ways.
As for the direct application of Article 5(a) to armed conflict situations, it has already been established that Article 5(a) requires States to refrain from gender stereotyping in all areas of their activities (respect dimension), to adopt measures to prevent gender stereotyping by non-State actors (protect dimension), and to name, identify, challenge, dismantle and remedy prevailing stereotypes (fulfil dimension). These obligations concern all State organsFootnote 127 in all areas of their action;Footnote 128 obligations under the CEDAW, including Article 5(a), thus extend to the military and its activities.Footnote 129 In the context of the conduct of hostilities in armed conflicts, the core obligations under Article 5(a) translate into a number of specific obligations.
First, Article 5(a) requires the integration of gender analysis – a process of evaluating how laws, policies or practices may affect individuals differently on the basis of gender, including through the operation of gender stereotypes – into military action. While such an obligation cannot be located in the text of Article 5(a) itself, gender analysis represents an implicit step in the practical implementation of States Parties’ obligation under Article 5(a).Footnote 130 This is because, in order to fulfil the obligation to challenge and dismantle gender stereotyping, it is first necessary to name and identify the gender stereotypes as well as to determine the harm they cause in a particular context.Footnote 131 The CEDAW Committee has recommended that in this process, States Parties not only conduct a review of their legislation, but also scrutinize their practice, doctrines and policies more broadly.Footnote 132 Following such a review, the laws, regulations, doctrines and practices that embody or result in all forms of gender stereotyping shall be amended.Footnote 133 In the context of the conduct of hostilities, attention shall be paid to military manuals, rules of engagement, training protocols and any other documents containing rules which regulate the processes of decision-making in the targeting process.
Another particular obligation following from Article 5(a) of the CEDAW is the obligation to include a gender-stereotype-sensitive perspective into military education and training. This obligation, in the first place, requires that States revise and develop “non-stereotypical educational curricula, textbooks and teaching materials”.Footnote 134 For example, training materials that routinely portray men as combatants or fighters are problematic because they contribute to the automatic association of the combat role with men, which, as discussed in the previous section, is in itself harmful to women, but also perpetuates the image of the military and armed conflict as a male endeavour, thus contributing to the further gendering of the military. Additionally, the obligation requires systematic capacity-building through training and education of State agents.Footnote 135 In the conduct of hostilities, such training should be aimed primarily at military lawyers and commanders involved in targeting decisions.
The second way in which Article 5(a) is relevant in the context of the conduct of hostilities is by informing the interpretation of certain rules of IHL. Specifically, it is particularly relevant to the interpretation of the precautionary principle, which generally requires taking “all feasible precautions … to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects”.Footnote 136 One of the sub-obligations deriving from the precautionary principle is an obligation of target verification. This obligation, contained in Article 57(2)(a)(1) of AP I, requires that those deciding or planning an attack “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects … but are military objectives”.Footnote 137 This rule mandates the attacker to carry out the identification of targets “with great care”,Footnote 138 using all feasible resources to obtain accurate information about the intended target.Footnote 139 Read in light of the obligations under Article 5(a) of the CEDAW, the verification rule would require that the target verification process actively accounts for the possibility of gender stereotyping as one of the factors and ensures that gender stereotyping does not compromise the accuracy of the identification of lawful targets in a specific operation.
However, the obligation contained in Article 57(2)(a)(1) of AP I, as well as the corresponding customary rule,Footnote 140 includes a feasibility qualifier. Although a comprehensive examination of the debates surrounding the feasibility qualifier is beyond the scope of this article,Footnote 141 a brief discussion of its implications for gender stereotyping obligations is warranted: specifically, could one argue that it is not feasible to perform obligations resulting from reading Article 57(2)(a)(i) in light of Article 5(a) of the CEDAW? The first conclusion that can be drawn from the analysis of the feasibility debate is that it cannot be used as a pretext for a blanket exclusion of gender stereotyping considerations from targeting analysis, as the interpretation of the feasibility requirement is “always context dependent”.Footnote 142 Thus, feasibility varies based on the operational environment and the circumstances ruling at the time of the attack, and depends on such factors as “time, terrain, weather, capabilities, available troops and resources, enemy activity and civilian considerations”.Footnote 143 While this list is open-ended, it indicates that assessing the feasibility of particular actions depends primarily on two sets of factors: rapidly changing or unpredictable circumstances and the availability of resources. In this regard, the good-faith implementation of the overarching obligations derived from the direct application of Article 5(a) of the CEDAW in situations of armed conflict, as discussed earlier in this section, would make the implementation of verification obligations interpreted in light of Article 5(a) generally feasible at the operational level. In particular, if gender stereotyping considerations are already integrated into military education and training, and if military doctrines, manuals and targeting guidance incorporate a gender-sensitive perspective, they would already form part of the cognitive and procedural background against which target identification and verification take place, rather than requiring an in-depth consideration during real-time targeting decisions. Similarly, the conduct of gender analysis and the incorporation of its findings into training, planning and doctrinal material – measures which would, as a rule, be implemented predominantly in peacetime – would lay the necessary groundwork for preventing gender stereotyping in rapidly changing operational scenarios.
Conclusion
The present article has argued that gender stereotyping is more likely to occur in the military and may influence targeting decisions. In particular, it has been argued that gender stereotyping is more likely to occur in already gendered settings, which the military inherently is, and that high cognitive load and the need to make qualitative assessments, both features of the targeting process, increase the likelihood of recourse to gender stereotyping. The article has also shown that, contrary to a common misconception, gender stereotyping in the targeting process may not only negatively affect men but also cause non-lethal and lethal harm to women. On a surface level, it may seem that gender stereotyping in the targeting process is likely to result in men being associated with combat roles and will thus put them at risk of being considered a lawful target on the basis of their gender, while women are more likely to be associated with a civilian role that would protect them from attacks. However, the article has shown that the relational construction of the IHL principle of proportionality, which establishes an interdependence between military advantage and the amount of tolerable civilian harm expected from an attack, means that gender stereotyping will often lead to an over-estimation of military advantage and thereby to an increase in the amount of tolerable civilian harm. Thus, even where the gendered application of the principle of distinction may appear to “spare” women from lethal effects, such harm may nonetheless arise through the subsequent application of the proportionality principle to an inflated assessment of anticipated military advantage.
Despite the potentially fatal consequences of gender stereotyping in armed conflicts and the increased likelihood of gender stereotyping occurring in such settings, the deprioritization of gender issues in such contexts, particularly during active hostilities, is commonplace. However, the main argument of this article is that States party to the CEDAW have an obligation to address gender stereotypes in armed conflicts, including when conducting hostilities. In particular, it has been argued that the obligations under Article 5(a) of the CEDAW continue to apply in armed conflicts and extend to all aspects of State Parties’ military action, requiring that States treat gender stereotyping in armed conflicts not as a marginal good practice issue but as a legal obligation to “target gender stereotypes” in their military action.
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