NATO Gender Mainstreaming and the Feminist Critique of the Law of Armed Conflict

UNSCR 1325, Women, Peace and Security, recognizes the important role that women play in preventing and resolving armed conflict, and the gender-differentiated impacts of armed conflict upon women and girls. Many states have created action plans geared in part to reducing armed conflict’s impacts upon women and to increase the participation of women in the decision-making processes attendant to preventing and resolving armed conflict. International organizations such as the EU and NATO have begun the work of incorporating UNSCR 1325 into their respective military organizations in a process called “gender mainstreaming,” primarily through the work of new gender advisors assigned to different commands. The trajectory of these efforts, however, is compromised by a fundamental flaw in the international legal system: The Law of Armed Conflict, or LOAC, the lex specialis that applies in times of war and largely displaces domestic and human rights law, discriminates against women. This discrimination is not facially obvious. LOAC itself explicitly states that there will be no discrimination on the basis of gender, and it includes provisions which provide women certain protections unavailable to men, such as pregnant women in internment camps being provided the nutrition required by their condition. These provisions, however, are not based on women being treated as equals who have different health and safety requirements. Instead, they are based upon a perception of women being a weaker class of armed conflict victim, whose special protections are in turn based on their relationships to others and their reproductive status. The perspective from which the situation of victims of armed conflict is viewed is that of men – a civilian is a civilian, but the default victim is a man. This has fundamental but subtle impacts upon the way in which military organizations write doctrine dealing with LOAC, how they train and plan to ensure compliance with it during operations, and how battlespace is viewed by military organizations conducting operations and analyzing the effects of those actions as they confront their adversaries. This feminist critique of LOAC is often ignored by the majority of feminist legal theorists and activists, and it enjoys little traction among international organizations or international law scholars and writers in general. Accordingly, there is no real appetite among those whom ordinarily would be expected to advocate for changes in LOAC to address these issues. Although fundamentally changing the law itself is not a realistic option at this point, the feminist critique of LOAC provides an important basis to both examine current gender mainstreaming efforts in the military and upon which to pragmatically reset the discussion of armed conflict’s impact upon women in battlespace, and what this means in terms of operational success. This paper proposes methods to bridge the current differences in gender ideology to enable this sort of discussion to occur, and provides tangible examples of measures feminist LOAC critics on the one hand and military trainers, planners and operators on the other could work together to create which would effect greater protection of women and girls during armed conflict.