The Law of War and Peace

A Gender Analysis Volume 1

Gina Heathcote, Sara Bertotti, Emily Jones, Sheri A. Labenski

• Publisher: Zed Books
• Year: 2021
• ISBN:
  9781786996718
• Edition: 1
• Topic: Social Sciences
• Subtopic: Gender Studies
• Index: Social Sciences

The Law of War and Peace offers a cutting-edge analysis of the relationship between law, armed conflict, gender and peace. This book, which is the first of two volumes, focuses on the interplay between international law and gendered experiences of armed conflict. It provides an in-depth analysis of the key debates on collective security, unilateral force, the laws governing conflict, terrorism and international criminal law. While much of the current scholarship has centered on the UN Security Council's Resolutions on Women, Peace and Security, this two-volume work seeks to move understandings beyond the framework established by WPS. It does this through providing a critical and intersectional approach to gender and conflict which is mindful of transnational feminist and queer perspectives.

Chapter 1

COLLECTIVE SECURITY

In this chapter we analyse collective security, seeking to adopt a wider outlook than currently exists in most contemporary approaches to gender, law and conflict. We examine how collective security has so far proven impermeable to feminist change, while at the same time incorporating some feminist initiatives through contingent recognition. Examining the UN Security Council’s engagement in Syria, we highlight the thin impact that two decades of women, peace and security work has had on the dominant logics of collective security and the authorization of military force. We question the potential for change via approaches based on the idea of ‘adding’ women to pre-established mechanisms for collective security that, far from being gender-neutral, are of themselves deeply gendered.

To move beyond the women, peace and security agenda and the hypervisibility of conflict-related sexual violence as the primary sites of feminist engagement with international peace and security, we interrogate collective security from the standpoint of feminist approaches that are invested in feminisms as a methodology rather than just shorthand for ‘asking the woman question’.¹ The apparent preoccupation with gender asserted by the Security Council through the women, peace and security agenda is quickly abandoned or displaced when matters are perceived as being more urgent or more important on the Security Council’s agenda. Through demonstrating how the law and politics around collective security have remained resistant to women, peace and security, and even more so to feminist ideas outside of the women, peace and security agenda, we conclude by arguing for the continued necessity of a multi-layered feminist engagement attending to the gendered dimensions of insecurity. A multi-layered feminist engagement requires analysis of the spectrum of insecurity experienced in the everyday as equally as in international affairs.

The chapter commences with an introduction to the collective security system, followed by an account of law and violence and feminist approaches as offering a lens through which to understand the collective security structure. The chapter then turns to the ongoing conflict in Syria to demonstrate the limited impact of the women, peace and security agenda on the decision-making processes of the Security Council and the fraught positioning of feminist approaches. Having implicitly endorsed the work of the Security Council and the legal-political framework underpinning it through feminist engagement with the women, peace and security agenda, we note how it then seems ‘natural’ to call for action from the Council when a ‘crisis’ of insecurity emerges. However, when that action takes the shape of military intervention, this raises questions with respect to the consequences of feminist support for the collective security agenda. At the same time, the years of inaction, or partial action, by the Security Council in relation to the violence in Syria also draws feminist criticism due to the gendered impact of failures of the collective security system.

We contrast the limited interest of the Council in its own women, peace and security agenda in Syria with the approach taken by the CEDAW Committee which – mindful of the continuities with pre-conflict gender insecurity – appears as the UN body undertaking a multifaceted approach by adopting a broader politico-socio-economic understanding of gendered harm in Syria. We illustrate how some feminist accounts have shown the positive potential that CEDAW’s approach can have when ‘travel[ling] to the periphery of rights and empathically engag[ing] with marginal actors’.² Nevertheless, we conclude that international law remains a constrained framework for controlling violence and a potentially dangerous ally of feminist activism because, while it offers opportunities, it also remains inextricably linked to violence.

To shift beyond the inherent limits of law – and of military force – in the conclusion we argue in favour of a focus on the manifestations of social injustices in the everyday during conflict and in peacetime, linked to gender, race and class. We highlight the ongoing heated debates on sexual and reproductive health in the Security Council, and we demonstrate that when reproductive and sexual health are drawn into conversation with collective security new questions regarding the gendered nature of collective security – and of peace – are brought into focus.³ As such, the chapter provides a gender analysis of collective security that examines the relationship between law and violence, to argue in favour of feminist methodologies that shift away from the hyperfocus on the Security Council as the key site of feminist energies.

Collective security at the Security Council

The creation of the UN Security Council with its five permanent members has shaped international understandings of conflict, peace and security since 1945. Security Council resolutions have authorized the use of force,⁴ enacted sanctions,⁵ established international criminal tribunals,⁶ organized peacekeeping operations⁷ and promoted the recognition of women’s experiences in armed conflict and peacetime.⁸ We examine the tribunals in Chapter 5 of this volume and a study of peacekeeping operations appears in Volume Two.

Chapter I of the UN Charter enshrines the purposes and principles of the United Nations. Within Chapter I, Article 2 states the principles according to which the member states of the UN agree to behave in the pursuit of the purposes of the organization, the first purpose being the maintenance of international peace and security. Article 2(3) states that all UN member states ‘shall settle their international disputes by peaceful means’ and Article 2(4) prohibits the use of force in international relations.⁹ The prohibition on the use of force is regarded as a principle of customary international law and has also been interpreted as having jus cogens status.¹⁰ Article 2(4) was a considerable improvement when compared to the Covenant of the League of Nations which did not prohibit the use of force. Nevertheless, two key exceptions are provided for in the UN Charter to the prohibition on the use of force stated in Article 2(4). These are: the actions authorized by the UN Security Council referred to as ‘collective security’ (Chapter VII of the UN Charter), and the right to self-defence (Article 51).

Article 2(3) and Chapter VI of the Charter provide the legal bases for the pacific settlement of disputes likely to endanger peace. It is generally understood that resolutions adopted by the Security Council under this section of the Charter are non-legally binding. However, the ICJ Namibia Advisory Opinion suggests that the distinguishing factor for ascertaining binding force is when a resolution (or a part of it) constitutes a Security Council ‘decision’ as per the meaning of Article 25 of the Charter.¹¹ It is important to note here that the measures mandated for by Article 2(3) and Chapter VI are comparatively less developed in the Security Council’s practice than those regarding collective security.

Chapter VII of the UN Charter contains the provisions that compose the system of collective security. Article 39 sets the threshold for collective security actions; it confers on the Security Council the power to ‘determine the existence of any threat to the peace, breach of the peace, or act of aggression’.¹² This determination is crucial as it sets up the possibility for the Security Council to make recommendations or to decide on measures short of force under Article 41.¹³ Or, if Article 41 measures are deemed inappropriate the Security Council can decide on measures involving the use of force under Article 42 in order to ‘maintain or restore international peace and security’.¹⁴

Once a determination under Article 39 has been made the Security Council can adopt non-forcible measures according to Article 41. These have often taken the shape of economic sanctions and arms embargoes, but have also been used in the aftermath of conflict to establish the ICTY and ICTR.¹⁵ Article 42 instead allows the Security Council to respond to an Article 39 determination through ‘such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security’.¹⁶ At the time of drafting the UN Charter, measures under Article 42 were intended to be carried out by forces under the standing command of the UN. However, given that a UN force was never constituted in practice, Article 42 is given substance through Security Council authorizations of force directed at coalitions of states willing to intervene militarily. Any use of force which occurs outside the parameters of Chapter VII (which incorporates Article 51 self-defence) constitutes a unilateral action and is in violation of the Charter.¹⁷ Importantly, the UN Charter does not define criteria to identify what constitutes a ‘threat to the peace’ within the meaning of Article 39. This has led to what constitutes a threat to international peace and security becoming defined through the Security Council’s discretionary and often selective practice.¹⁸ In fact, for a determination in accordance with Article 39 to take place, all five permanent members of the Security Council must not disagree.¹⁹ As the lack of adequate attention in response to the conflict in Syria illustrates, the Security Council has a history of selective focus on particular conflict situations resulting in comparable contexts escaping attention due to alliances with powerful actors.

While the veto power of the permanent members of the Security Council has been used to block action, a gradual expansion of the circumstances of application of Article 39 for what concerns the existence of threats to peace has been observed.²⁰ In particular, the Security Council has increasingly deployed this category with regard to internal situations – traditionally considered within the remit of the territorial state – for their consequences at the international level.²¹ Early instances of expansion were coupled with language highlighting the exceptional nature of Security Council intervention into internal conflicts; however by 2011, with the authorization of military force in Libya the Security Council had removed such qualifying language.²² While not directly referring to the ‘threat to peace’ category, women, peace and security resolutions 1820, 1888, 1960 and 2106 can be seen as part of this expansive tendency given that they connect widespread and systematic conflict-related sexual violence against civilians to international peace and security.²³ The expanding of the category ‘threat to the peace’ – underpinned by the ever-present spectre of last-resort forcible measures in the background – has been the Security Council’s way to assume a ...

Table of contents

• Cover
• Halftitle Page
• Title Page
• Contents 
• Author Biographies
• Table of Cases
• Abbreviations
• Introduction
• Chapter 1 Collective Security
• Chapter 2 Unilateral Force
• Chapter 3 Countering Terrorism
• Chapter 4 International Humanitarian Law of Armed Conflict
• Chapter 5 International Criminal Law
• Bibliography
• Index
• Imprint