Paras Shah: In recent decades, the international community has sought to address the particular harms that women and girls experience in war. International law now punishes sexual violence in armed conflict. And there’s the Women, Peace and Security agenda, which the U.N. Security Council launched in 2000 with Resolution 1325. That requires member States to consider impacts of conflict based on gender and to involve women more in all aspects of conflict prevention, management, and resolution.
Viola Gienger: But while some harms rightly receive coverage and draw condemnation, other forms of violence are overlooked. Around the world – from Ukraine to Sudan to Gaza – violence experienced by pregnant civilians, women giving birth, nursing women, and women struggling to survive in the period after childbirth remains entirely at the sidelines of global political conversations.
Paras: This is the Just Security Podcast. I’m your host, Paras Shah. Co-hosting with me today is Just Security’s Washington Senior Editor, Viola Gienger.
Viola: Joining the show to discuss what experts call “obstetric harms” faced by women and girls in armed conflict and the obligations of combatants in the face of these risks is Fionnuala Ní Aoláin. Fionnuala is the former U.N. Special Rapporteur on Human Rights and Counterterrorism, and a law professor at the University of Minnesota and at Queen’s University School of Law in Belfast, Northern Ireland. We’re honored to have her as an Executive Editor at Just Security.
Paras: Fionnuala, welcome back to the show. We're so glad to have you on today to discuss this really important and often overlooked topic. Just to help us understand the legal landscape here, could you unpack some of the protections that international humanitarian law provides to women and girls during armed conflict?
Fionnuala Ní Aoláin: Yeah, absolutely. I mean, I think it's just a tremendous opportunity to try to widen our aperture, and to understand both the historical as well as the contemporary way in which the law of armed conflict has addressed the protection and rights of women. And it's probably worth saying that historically, women have been sort of quite invisible as a general matter in the law of war.
Certainly true until the outbreak of the First World War, there was very little specific protection included for women in the early law of war, whether Hague regulations, or Geneva Conventions. There's general language and things like the Brussels Conventions that speaks to general protections of persons and human dignity. And you could read women in those things. But it's not a separate — the word woman or the category of woman doesn't really appear very succinctly.
But I think from 1929 onwards, what we see is a very distinct evolution of the protection of women as a specific category under the laws of war. So, for example, in this period, 1929, states adopt something called the Geneva Convention on the treatment of prisoners of war. And so that was really adopted because it was sort of obvious at that point that women were taking part in conflict in a way that they hadn't been in the Great War between 1914 and 1918. And so, as that treaty was being drafted, we saw the third article of that treaty talks about women shall “be treated with all consideration due to their sex,” right? So, we see this protection of POWs start to expand to include women. And it's also Article IV of that treaty, talks about taking account of the difference on the basis of sex between women and men if they're POWs.
Now, after World War II, that sort of sort of projection of women as a class that have to be specially protected actually becomes really much clearer. And so, part of that is because, of course, during the Second World War, a lot of women are harmed, injured, affected by that war in a way that a world war will affect large numbers of women in a unique way. And so, we see, for example, in the Geneva Conventions that were agreed that, in the four Geneva Conventions of 1949, we see women emerge as a very distinct category of protection.
Now, there's two things I'll say about it briefly — maybe we can say more about it — but one is that, in this period, the sexually violated woman isn't very visible at all. These men who are negotiating this treaty don't want to talk about sex and sexual violence. But what they do want to talk about and protect are pregnant and nursing women. And this category of woman appears very distinctly with very specific protections in Geneva Convention III and in Geneva convention IV. So, it's sort of interesting. We see this protection of women's honor and modesty. And we see pregnancy and childbirth as like a focus of state attention in this period.
So that's, that's the roots of it. That's where it starts. It gets augmented in further Geneva Conventions. But all to say that, as we think about this history, we have a very contemporary preoccupation with sexual violence. But historically, that wasn't the place where the law of war sought to protect women.
Viola: That's really interesting. So, one of the things that I think might not be readily understood, although you do touch on it a little bit there, is the rationale for focusing now, specifically on women in maternity or obstetric situations in conflict, versus the general gender specific harms to women and girls overall in conflict zones. I gather you're not talking about that there has been an overcorrection, necessarily, but that we now need to consider all of those particular harms. Is that what you mean?
Fionnuala: So to be on this question, I would say a couple of things. I would say the first challenge is, we have these really well-established treaty and customary law standards that are old, historic, well laid out. They're not unproblematic. It's not unproblematic to talk about honor and maternity. And we can talk more about that. But I would say that at the current moment, states have both strategically and politically chosen not to centralize those protections in their conduct of hostilities. That is to say that those rules are there. They're well understood by militaries. They're not complicated. But in practice, states are not observing them.
The second pattern I would observe is that for good reason, because the Geneva Conventions of 1949 and the law that followed really didn't include sexual violence, right — it left it out, rape is not a grave breach of the Geneva Conventions — women's transnational activism for many, many decades has focused on making sexual violence in war part of the mainstream discussion of what happens to women in war. And I agree, and have been part of that transnational activism. But I would say that is where we've overcorrected. Where we stand now is that often the only visible harm that we see to women in war is sexual, penetrative, sexual violence, often very specific kinds of violence, specifically rape.
And what we don't see or have elevated is the broad range of gender based harms that women and men both experience in war, but also that this focus on maternity, on protection of young children, protection of pregnant and nursing mothers, that this is just not visible or highlighted in the practice of states. And that actually, we need a fundamental rebalancing, which is both to elevate and centralize these harms, and in state practice, but also to actually overcorrect for the problematics we've seen in the over emphasis, and in some sense, the commodification, of sexual, penetrative, sexual violence in armed conflict by different protagonists and actors. And the over emphasis on that has not served women well, and that it has had some serious and unexpected downstream consequences.
Viola: And those downstream consequences are that the other kinds of harms are more often ignored, because so much of the emphasis is on rape, for example?
Fionnuala: Yes. So, I'd say there's a couple of unexpected downstream consequences. One is that the focus on penetrative sexual violence has kind of eclipsed, it's colored out every other kind of harm. And it has also had two other consequences. One is that perhaps almost counterintuitively, the focus on rape, in my view, has actually resurfaced what we might call honor tropes, or chastity tropes, in the way people talk about sexual violence. Because what I see and what many I think other practitioners see, is that the description of often rape as the “worst” form of harm. And of course, that's true for some women, rape will be the very worst harm that they will experience but for other women, what will be more devastating will be the loss or death of a child, the destruction or disappearance of family property and home, or forced expulsion — meaning that rape has come to dominate the way we think about harm to women in ways that essentializes women's experiences of harm. And that again, I think, is very complex, because it relates to why would that be so it would be, because we think of rape as a particular kind of harm that can actually function to highlight tropes, like honor and chastity and purity in ways that may not be intended, but actually the continued centering of rape does that work.
And I think the third thing we've seen that's been really, I think, problematic, is that because of the centralization of rape as a kind of a weapon of war, or rape as the worst harm, we tend to see protagonists using and shaping the conflict itself around gendered tropes, like rape, or the use of rape as a weapon to, for example, encourage people to leave, or using it in a way to characterize the nature of the conflict and the protagonists involved. And I think that does a disservice to victims of rape and gender based violence. But that also, it does, what I continue to stress is, this evacuation of the totality of harms that women and men experience in conflict it. It sort of hollows out the complexity of harm in a conflict space.
Viola: Thanks so much for unpacking that for us. You pointed out recently in an article for Just Security that the international community has paid far less attention to obstetric violence, as you've just outlined here. What are some of the violations in that area specifically that we're seeing in conflicts such as Gaza, but also in Sudan, Ukraine and elsewhere? What form does that violence take?
Fionnuala: Yeah, I mean, I think there are numerous dimensions, as my recent Just Security article talks about. One is, just, I would say that the lack of attention to the effects of war, and the production of these harms, is that in a fundamental sense, it sort of, it engages us with discrimination. That is to say, that actually, when we fail to pay attention to the fact that the logical consequences of certain kinds of targeting, or the use of certain kinds of weapons, or practices of displacement, that the logical consequence of those things are going to be increased maternal mortality, increased stillbirth, increased maternal obstetric emergency, the early birth of young children or mothers dying, or having severe, complex problems when they give birth. That really to me speaks to the failure to take into account those harms as the methods and means of warfare, are being tested out and played out in these conflicts, because I start with the presumption that when we calculate what is civilian harm, when a commander has to calculate what is the likely consequences of the particular use of a weapon or strategy of war, that if we just simply think in terms of, like, deaths, which is of course the classic test we have in most wars — first of all, we don't count those maternal deaths, or childbirths and potential deaths, in the calculation of what is civilian harm. They're actually almost invisible in the calculation.
But more than that, the idea of what is a proportional use of force, what is a use of force that won't cause unnecessary suffering under the law of war, the idea of what is necessary to achieve your military ends, is entirely devoid of this kind of calculation of this kind of fundamental gendered harm. And if we take, for example, the statistic we have in Gaza, that 180 women a day are giving birth — that's the World Health Organization's data point — then we would be thinking military commanders would have an obligation to think about what the choice of their method and means of warfare. If we were thinking in a gendered way about these harms, we would be calculating in the cost of that into the way we think about methods and means.
And I think we would all acknowledge that this is not in any methods and means handbook. Nobody thinks about it, it's not relevant. The idea that we would do a calculation of civilian harm that would fundamentally engage with the with the harms that we know women will experience in war would, I think, fundamentally reshape the way we think about the very concept of civilian harm in the context of ongoing hostilities, including in Gaza.
Viola: So just one more follow up on that. Is part of the issue here that the language has become so sanitized, you know, what you used to refer to, and still do to a certain extent, collateral damage? It's just jargon, that that seems to sort of flattened out the effects, and now it's civilian harm and civilian casualties. But even that has sort of attained this kind of flat meaning, because it's referred to so often, but we don't feel the human tangential cost as much. Is that part of the issue?
Fionnuala: I think two things are true. Yes, I do think, I mean, on the one hand, we might say the language of civilian harm has become more mainstream. And I think there's, whether it's through New York Times reporting, or Just Security writing — the mainstream of understanding that, actually, the harm that happens to civilians in conflict matters. It matters to our conduct of hostilities. It matters to whether or not we can “declare” victory at the end of a conflict. And we're getting increasingly sophisticated about how we talk about civilian harm, including, for example, concepts like cumulative civilian harm, meaning, it's not enough to measure what happens to a person once in a conflict.
We're getting sharper at understanding that if you live in a conflict zone like Gaza, and you've been displaced three times, and you've lost X number of family members over a six-month period, the harm isn't singular, it's cumulative. It's harm upon harm. And so, there's kind of an ultimate X that you reach when you understand that actually, the cumulative civilian harm on any one civilian is more than the sum of any particular harm that she has experienced at any point.
So, I would say, Viola, that I think this language of civilian harm isn't entirely flat, because it's actually done something to the way we talk about civilians. But what I would say is that neutral language of civilian harms really lacks a gendered dimension. So, we've got good at talking about civilians in general. What we're not very good at is disaggregating how particular groups of civilians are more particularly vulnerable to certain kinds of harm during armed conflict. And more than that, with my focus on female bodies, and the reality that women, because of their childbearing and social and home responsibilities and cultural contexts in which women live in many of the most acute armed conflicts we see around the globe, that women are particularly vulnerable to certain kinds of both singular harm and cumulative harm, and that we fail to account for that vulnerability when the “methods and means of warfare” are being rolled out, or even when we measure what is a civilian harm.
So, if we only measure civilian harm in terms of death, we're just going to miss an entire complex, cumulative, and extraordinarily damning sort of reality of harm. But I would also say that, even when we measure death, we're not measuring the deaths that are resulting from the specific kinds of harms that women will experience in these conflicts. Particularly maternal, obstetric, birthing, and postpartum deaths don't even figure in the conversation we're having globally about civilian harm. And so, I think we need a double tweak. We need to both particularize what we mean by civilian harm, but we also need to actually make that harm segregated and specify the kinds of particular gendered harms that women will experience in a protracted conflict like Gaza, which is both about elevating and exposing sexual harm. And there's evidence, of course, we know that there was extreme sexual violence at one part of this conflict at one point, but there are other sexual harms that women are experiencing. But that's not enough. It's not enough to talk about that. We have to talk about the other broad spectrum of maternal, obstetric, reproductive harms that are essential to understanding how women experience conflict.
Paras: And when we talk about that double tweak, what are concrete steps that states and their legal advisors can take when considering this problem? What can they do?
Fionnuala: So, it's a really good question, Paras. One of the last things I did as Special Rapporteur way back in October was with Margaret Satterthwaite, the Special Rapporteur on judges and lawyers. We issued a statement to legal advisors in the Gaza-Israeli context. And we said specifically to them, “You legal advisors have specific legal obligations under the laws of war. The advice that you give on your methods and means of warfare matters. And you are also responsible for consequences that follow from advice that you give that is non-compliant.”
So, one place I would start is with legal advisors, because it requires them to actually take account of these fundamental provisions of the Geneva Conventions like Geneva Convention I and II, Article 12, Geneva Convention III, Article 14, that requires specific consideration on the basis of sex to the decisions that are made, and the particular, really specific obligations under Geneva Convention III, Article 16, and Geneva Convention IV, Article 27. For me, I start with saying, “Legal advisors, that should be sitting in front of you as you decide the advice that you give to your military on what obligations you have.” That's the first thing I would do.
I think the second thing I would do, and I see it on the Security Council, and certainly, it's an issue that I think is really missing in action on the Security Council, is that since 2001, we've seen a series of resolutions on sexual violence in armed conflict. And just this week, we had yet another big debate on the Security Council about sexual violence in armed conflict. And the Security Council's aperture is narrowly focused on sexual violence and armed conflict, and nothing else. And so, my second piece of advice is, we need the Security Council to widen its aperture, to extend its scope of protection to these other classes of women who are extremely vulnerable in armed conflict. So, that's really the second place — widen the aperture at the Security Council.
And the third place, I would say, is that we also need civil society and women's transnational activists and human rights activists, frankly, not to move away or say sexual violence in armed conflict is not important. I would continue to insist that's important. But we have to give equal and consistent attention to the whole range of other roles and experiences that women have, whether it's in the DRC, or it's in Gaza, or it's in Syria. Women will always give birth, whether it is in a conflict or not. Women will always have young children, and women are in need of reproductive care, no matter whether there's a conflict or not. So, we need this broader array of actors who've been advocating around sexual violence also to widen their aperture and treat holistically the vulnerability of women and girls in armed conflict, which, frankly, they just don't do right now.
Paras: And another potential site of advocacy or change here might also be the Women, Peace and Security Agenda, which goes beyond just the Security Council. And there are other states that are purported champions of the agenda, including the United States, Germany, Canada, United Kingdom, the UAE. What can they do? What else can be done within the Women, Peace and Security Agenda broadly?
Fionnuala: So, I have to say, like, one of the things — and I've been a regular contributor to Just Security on this particular topic — is that I think this agenda is both in crisis of legitimacy, but also in a crisis of relevance for a couple of reasons. The first is that the states who champion either what we might call, at least rhetorically, feminist foreign policies, or say that they're committed to the Women, Peace and Security Agenda broadly, are highly performative on particular days on the Security Council. They make great speeches. But if we turn to what they actually do, it's really clear that the mainstreaming of the Women, Peace and Security Agenda broadly means nothing in the conflicts that we're talking about.
To give one example, the current discussions concerning for example, ceasefire, end of hostilities, exchange of hostages — which is critically overdue in Gaza. One of the central planks of the Women, Peace and Security Agenda is that women participate in all parts of the discussion related to the ending sequences of conflict. Have any of us seen any senior women in Doha these days? Did we see a single woman in Doha when we were talking to the Taliban before the fall of the government? Of course, we didn't. The reality is that states talk the talk, but they don't walk the walk.
The second big problem we have, illustrated by, I suppose, the tragedy of the extreme acts of violence on October 7, was, I think, the commodification of sexual violence by particular states, including the United States, and where they — “gaslit” is the word I've used in a Just Security posting — where UN Women was essentially told they had to perform condemnation for this particular conflict in a very specific way, but if we heard the United States or Israel or any other state ask UN Women to condemn any other act of extreme sexual violence that occurred since October 7? And let me tell you, as we all know, there's been many of them, including in Sudan, ongoing in Nigeria. We couldn't let name a list.
And so, the point of that is, that we've seen this sort of political appropriation of penetrative sexual violence for some women, but not for others. And you know what, everybody spots a double standard when they see it. And again, that speaks to the obligation of the states who say they're champions, to actually be champions for all women equally, but not for some women some of the time. And that's really what we're seeing now.
And I think the third really big challenge is that the WPS agenda has become an agenda primarily focused on penetrative sexual violence. And don't get me wrong, I absolutely would say this is something we have to address and conflict. But unless we address the conditions that produce conflict in the first place, including the social and economic conditions that make women more vulnerable to sexual violence, we're not going to address the proliferation of sexual violence in armed conflict. So, these three things seem to me to be hugely important — reorienting the WPS agenda, states have to stop commodifying sexual violence, and states have to stand up for all women equally, and widen their aperture of harm.
Viola: Thank you very much. That's very powerful, Fionnuala. Really appreciate unpacking those ideas for it. Is there anything else along these lines that we haven't talked about that you'd like to add?
Fionnuala: You know, what may be a good question to think about, why it’s been so difficult to address maternity and reproductive rights in the context of armed conflict. And I would say, two things are true. One is that we know that in many countries, women's reproductive rights are under assault, including our own. And so, I think one of the challenges is that, it's very hard to sort of address reproductive rights in armed conflict when day to day reproductive rights are under assault in many countries in the world. But I think the two are connected, meaning, the inability to defend reproductive rights in normal times is making it even harder to make the case to protect them in times of extremity, which makes the case for protecting reproductive rights at home all the more important.
I think related to that, one of the things that has really made it difficult for many feminists to get behind an agenda that prioritizes maternity and reproductive rights, is that it seems to sort of re-essentialize women as mothers, right? If we start talking about mothers and conflict and mothers with babies and nursing mothers and pregnant mothers, it's like we're reducing women to motherhood. And I think there's been discomfort with that in many feminist spaces. But I would just say we have to resist that discomfort. Women live their lives in many, many parts of the globe through family, through maternity, and through the lived experience of inhabiting a female reproductive body.
And so, if we don't protect women where they are found, where they actually experience their lived lives and their really most significant harms, we're also guilty, I think, of ignoring the place where women need us most. And so, I think there's a sort of a call in there to feminists to get over their discomfort with maternity, and to accept the fundamental role that it plays for many women in many parts of the world.
Viola: Thank you very much, Fionnuala. I mean, that was a really important point that, as you've so clearly outlined, we don't think about enough, don't talk about enough. So, we're really glad to have someone who can articulate that as strongly and as clearly as you can. Thank you so much.
Fionnuala: Thanks.
Paras: Fionnuala, to echo Viola, thank you again for joining the show. We always appreciate your insights and your analysis on Just Security.
This episode was co-hosted and produced by me, Paras Shah, and Viola Gienger with help from Clara Apt. Our theme song is “The Parade” by Hey Pluto.
Special thanks to Fionnuala Ní Aoláin. You can read all of Just Security’s coverage of gender, international humanitarian law, and the war in Gaza, including Fionnuala’s analysis, on our website. If you enjoyed this episode, please give us a five-star rating on Apple Podcasts or wherever you listen.