Substantive New Normative Provisions on Women and Armed Conflict Concurrently Adopted by the United Nations Security Council and the CEDAW Committee

Introduction

October 18th, 2013 heralded significant normative advancements for what is now referred to as the international “women, peace and security (WPS) agenda.” In Geneva, in its 56th Session, the Committee on the Elimination of Discrimination Against Women (the Committee), adopted a new General Recommendation providing specific guidance on the application of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to conflict and post-conflict contexts, while the Security Council, in its annual debate on WPS in New York, adopted Resolution 2122, focused on women’s participation and leadership. Both instruments significantly strengthen international norms aimed at promoting and protecting women’s rights related to situations of conflict, with the potential to significantly influence the actions of states and international organizations in their practice of the maintenance of international peace and security.

This Insight will provide an overview of the substantive provisions set out by these new developments, and comment on their contribution to strengthening women’s rights in efforts to prevent, manage and resolve armed conflicts.

Background

The advancements in the human rights agenda of the 1990s offered the initial entry points for issues of women’s rights related to situations of armed conflict to gain normative traction. The Vienna Declaration (1993)[1] and the Beijing Platform for Action (1995, BPFA)[2] both articulate concerns about violations experienced by women in situations of conflict, with the BPFA setting out a framework of related strategic actions.[3] Concurrently, events in the former Yugoslavia and Rwanda prompted the first international criminal convictions for sexualized violence as a war crime, a crime against humanity, and in the case of Rwanda, as a component of genocide.

Building on these events, an intensified lobby by transnational women’s networks led to the adoption of Resolution 1325 in 2000, which established for the first time normative standards agreed by the world’s primary security body on women’s right to participate in, and have their specific interests addressed in all matters relating to international peace and security. As the issue of sexualized violence in armed conflict gained traction during the first decade of the new millennium, the Security Council incrementally adopted a series of subsequent WPS resolutions primarily focused on this issue,[4] as well as a resolution aimed at furthering implementation of Resolution 1325.[5] The Security Council has become the primary norm-producing site on issues of women and armed conflict, with a total of six resolutions adopted under its WPS agenda item by June 2013.

A substantive synergy has been emerging between the WPS agenda and international human rights frameworks through recent steps taken by the CEDAW Committee. In 2011, the Committee produced a concept note and undertook consultations with constituencies globally to inform the development of a General Recommendation on the protection of women’s rights in conflict and post-conflict contexts.[6] Noteworthy is that the Committee had already begun drawing the Security Council resolutions into its consideration of States Parties reports prior to this initiative. As early as 2008 for example, the Committee called for the full implementation of Resolution 1325 by the United Kingdom in its territory of Northern Ireland,[7] and continues to reference the resolutions in responding to State Party reports.[8]

The work of both the Security Council and the CEDAW Committee culminated in the adoption on October 18th of new normative provisions that situate the thematic issue of women and armed conflict under both the UN’s human rights framework, as well as under its mandate on international peace and security.

Resolution 2122 Adopted by the UN Security Council

During its now annual open debate on WPS, and under the Presidency of Azerbaijan, the Security Council unanimously adopted Resolution 2122, which is already being referred to as the resolution on women’s leadership. While Resolution 1325 (2000) and Resolution 1889 (2009) focus on women’s agency and participation, Resolution 2122 offers the strongest language in this respect so far. This resolution articulates the Council’s intention to “focus more attention on women’s leadership and participation in conflict resolution and peace-building,” and specifically nominates concepts of gender equality as integral to sustainable peace, a far more strengthened reference to the equality aspects of this agenda than seen before. The resolution also provides for strengthened implementation of the WPS resolutions in the Council’s broader thematic areas of work, including references to areas such as promotion of the rule of law and threats to peace and security by terrorist acts (offering a new and significant opportunity for the application of the WPS agenda to this critical aspect of the Council’s work). There has been critique of the Council’s consecutive adoption of resolutions that are focused on protecting women as vulnerable victims of sexualized violence as a tactic of conflict. By requesting UN peacekeeping mission leadership to assess “human rights violations and abuses” and “security threats” affecting women, Resolution 2122 creates space for a broader range of conflict-related gender-based harms to be recognized, documented and addressed. Important going forward will be interpretation of this provision by UN missions, and whether specific efforts are made to document and address the broader range of gender-based rights violations and insecurities that women face alongside, as part of, and distinct from strategic sexualized violence.

Perhaps of most significance is the articulation in Resolution 2122 of the Security Council’s support for reproductive rights of women in conflict-affected contexts. While this issue is referred to in the preambular section of the resolution, its inclusion nonetheless expresses the Council’s acknowledgement of “the need for access to the full range of sexual and reproductive health services, including regarding pregnancies resulting from rape, without discrimination.”[9] This responds to the UN Secretary-General’s recommendation in his 2013 report on women and peace and security to the Security Council, that termination services should be made available in such contexts in line with national law.[10] The provision on reproductive health in Resolution 2122 did jar with a number of UN member states, however. Guatemala, for example, a member of the Council, expressly noted in its statement to the open debate that because the resolution itself did not include language specifically contextualizing this provision in line with national legislation, they were prevented from cosponsoring it. On the other hand, countries such as Switzerland underlined the importance of ensuring access to abortion services for women and girls in contexts of armed conflict.

General Recommendation 30 Adopted by CEDAW

The stated aim of General Recommendation No. 30 on women in conflict prevention, conflict and post-conflict situations[11] is to underline States Parties’ obligations under CEDAW related to situations of conflict, and to overcome gaps in States Parties’ reporting on the same. Significantly, the General Recommendation stipulates the application of CEDAW not only to situations of conflict classified under international humanitarian law, but also to “other situations of concern” and lists examples of these such as “war against terrorism,” “internal disturbances,” and “political strife.”[12]

The General Recommendation includes a specific section referencing the Security Council WPS agenda. It notes that “all the areas of concern addressed in [the WPS] resolutions find expression in the substantive provisions of the Convention,” [and] “reiterates the need for a concerted and integrated approach that places the implementation of the Security Council agenda on women, peace and security into the broader framework of the implementation of the Convention and its Optional Protocol.”[13] Recommendations are made that States Parties report on the implementation of the WPS agenda through the CEDAW reporting procedure, with a list of ways that States Parties can advance their commitments.

The Potential for Synergies Between Security Council and Human Rights Normative Provisions

A perceived weakness of the series of WPS resolutions is their lack of enforceability under the Security Council’s working methods. Specific measures are being developed at international levels to redress this gap.[14] General Recommendation 30 may also be considered to hold significance for not only strengthening the application of CEDAW to conflict-affected contexts, but also strengthening accountability of states on implementation of the WPS resolutions.

In General Recommendation 30, the CEDAW reporting procedure is presented as a way to “consolidate the Convention and Council’s agenda.”[15] Specific measures are proposed to states to advance implementation of the resolutions, with the recommendation that states ensure “a model of substantive equality [that] takes into account the impact of conflict and post-conflict contexts on all rights enshrined in the Convention.”[16] The General Recommendation situates the Security Council resolutions in a wider context of equality and non-discrimination found in international human rights law, and posits that CEDAW can lend the enforcement of international law to the provisions set out in the resolutions.[17]

Conclusion

Resolution 2122 augments the potential for the substantive equality provisions of the WPS agenda to be taken forward, while General Recommendation 30 strengthens enforcement of the equality and non-discrimination norms of CEDAW to conflict and post-conflict contexts. Both developments also offer potential for a progressive move towards holding States Parties to account on their implementation of both CEDAW as well as the WPS resolutions in situations of conflict, post-conflict, and beyond. Going forward, it will be interesting to see how the General Recommendation is utilized by the Committee, and in particular, how it is responded to by states operating on these issues under two differing frameworks. Also of consideration is whether the human rights framework and reporting procedures offered by CEDAW under the General Assembly are seen to come up against or mutually reinforce the distinctive mandate of these issues under the Security Council. How the consolidation between these bodies proposed by the CEDAW Committee is viewed from a political perspective by the Security Council, and in particular by members such as Russia who continuously reiterate the need for the WPS resolutions to be applied only in strict adherence to the mandate and agenda of the Security Council, also remains to be seen.

About the Author: Associate Professor of Practice of International Affairs, Elliott School of International Affairs, The George Washington University. Paper researched and drafted while Hauser Global Fellow, Centre for Human Rights and Global Justice, School of Law, New York University.

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