ABSTRACT
Largely ignored in international work on gender in military activities and operations but for those parts of it that prohibit sexual and gender-based violence, IHL requires a thorough reassessment in terms of its long-standing male-normative approach to armed conflict, its emphasis on affording protection to women and girls as a function of their weaker constitutions and their socially presumed characteristics of chastity and modesty, and its failure to consider the operational gender factors that are relevant to the kinetic part of kinetic operations, that is, the application of lethal armed force. The legal doctrine of NATO, the UK, the US and Australia are all silent in this regard. For example, for purposes of conducting a proportionality analysis to weigh the relative values of military advantage and civilian casualties and damage to their property, one civilian is no different than another, even though through UNSCR 1325 the international community established that this was not so. Recognition of these issues is not new – Australian feminist authors such as Judith Gardam, Hilary Charlesworth and Michelle Jarvis have literally been writing about them for decades. In sum, IHL quietly both reflects and reinforces the traditional male-normative understandings of the significance of gender in operations despite its stated emphasis on impartiality. Recent attempts by the ICRC to re-contextualise IHL’s explicit provisions that embed gender discrimination within it lack the gravitas of the commentaries on IHL treaty law written closer to the time they were negotiated and by authors involved in the negotiations.
