The Law on the Use of Force

A Feminist Analysis

Gina Heathcote

• Publisher: Routledge
• Year: 2013
• Topic: Law
• eBook ISBN:
  9781136628009
• Subtopic: International Law
• Index: Law

The book presents the international laws on the use of force whilst demonstrating the unique insight a feminist analysis offers this central area of international law. The book highlights key conceptual barriers to the enhanced application of the law of the use of force, and develops international feminist method through rigorous engagement with the key writers in the field

The book looks at the key aspects of the UN Charter relevant to the use of force – Article 2(4), Article 51 and Chapter VII powers – as well as engaging with contemporary debates on the possibility of justified force to meet self-determination or humanitarian goals. The text also discusses the arguments in favour of the use of pre-emptive force and reflects on the role feminist legal theories can play in exposing the inconsistencies of contemporary arguments for justified force under the banner of the war on terror. Throughout the text state practice and institutional documentation are analysed, alongside key instances of the use of force.

The book makes a genuine, urgently needed contribution to a central area of international law, demonstrating the capacity of feminist legal theories to enlarge our understanding of key international legal dilemmas.

1 Feminist Legal Approaches and International Law on The Use of force

International rules on the use of force are contained in the UN Charter and customary international law. The central provision on the use of force contained in the UN Charter is Article 2(4) which prohibits the threat or use of force by states. The prohibition is supplemented by a collective security structure that envisages the pacific settlement of disputes by states and regional organizations, detailed in chapters VI and VIII of the Charter, and the use of non-forcible and forcible measures authorised by the Security Council, under chapter VII of the Charter.¹ The UN Charter also retains the right of states to use force in self-defence under Article 51. All these provisions function and develop in tandem with customary international law on the use of force.² This book uses feminist methods to assess customary international law and UN Charter provisions on the use of force.

Since the year 2000 the United Nations has initiated a host of reforms to protect women during conflict,³ as well as inserting standard form paragraphs in many conflict specific resolutions alerting states and UN personnel to the existence of sexual violence during armed conflict⁴ while instituting a policy of zero-tolerance for sexual misconduct by peacekeepers.⁵ The UN Secretary-General has had a Special Advisor on Gender Issues and the Advancement of Women since 1997 and in 2010 the UN General Assembly created ‘UN Women’ an umbrella institution to co-ordinate the increasing number of gender-based initiatives and departments within the United Nations.⁶ The 1990s focus on gender mainstreaming in international institutions has consequently developed into a plethora of projects across the UN, over a host of issues, to challenge gender-based violence and discrimination, including in situations of armed conflict.

Within the Security Council, initiatives include the following: gender training for UN forces and peacekeeping operations,⁷ clear disciplinary procedures for UN personnel found to violate the Code of Practice on sexual behavior of personnel, Gender Affairs Units in many post-conflict communities, the condemnation of systematic and widespread sexual violence during conflict, the call for sanctions against perpetrators of sexual exploitation and abuse and the call for increased participation of women in post-conflict re-construction and decision-making. Despite clear limitations within this aspect of the UN Security Council’s work, notably the interchange of the word ‘women’ with ‘gender’, the failure to challenge the links between the construction of masculinity as a social norm that implicitly condones violence and the continuance of the ‘war system’ within this model, these developments, on paper, appear to demonstrate what can be regarded as feminist inspired developments within the institutional setting of the United Nations.

Even with these impressive developments, and while a host of academic journals, university departments and NGOs prepared to mark ‘ten years of Security Council Resolution 1325 on women, peace and security,’⁸ mid-2010 saw reports of systematic sexual violence in the village of Luvungi, in the Democratic Republic of Congo (DRC). The reports were a chilling reminder of the gap between words and action. The UN Assistant Secretary-General for Peacekeeping, Mr Atul Khare, reported to the Security Council that 242 cases of civilians requiring treatment for rape had been recorded in Luvungi by medical personnel with an additional 260 cases reported from neighboring towns. The sexual violence was believed to be the consequence of attacks by armed rebels between 30 July 2010 and 2 August 2010. UN Peacekeepers stationed nearby were recorded as unaware of the violence, having withdrawn patrols of the villages prior to the attacks taking place. Ostensibly, under Security Council Resolutions 1820 and 1888, the Security Council had announced its readiness to act and ‘to address widespread or systematic sexual violence’.⁹ Not until a month after the attacks did UN peacekeepers in the region demonstrate a commitment to increased patrols and visibility. In October 2010, UN peacekeepers had arrested the commander of the Mai Mai Chaka rebel group involved in the attacks, and the UN Special Representative on Sexual Violence in Conflict urged the Security Council to support processes to ensure the end of impunity for perpetrators of sexual violence during armed conflict.¹⁰ By February 2011, and despite a new Security Council resolution on women, peace and security in December 2010, no Security Council response to this specific series of systematic sexual attacks had taken place.

There is a chilling dissonance between the rape of 500 people in a systematic attack by armed groups in a region patrolled by a UN force, authorised to use force to protect civilians, and ten years of Security Council resolutions inclusive of paragraphs stating:

that sexual violence, when used or commissioned as a tactic of war in order to deliberately target civilians or as a part of a widespread or systematic attack against civilian populations, can significantly exacerbate situations of armed conflict and may impede the restoration of international peace and security, affirms in this regard that effective steps to prevent and respond to such acts of sexual violence can significantly contribute to the maintenance of international peace and security, and expresses its readiness, when considering situations on the agenda of the Council, to, where necessary, adopt appropriate steps to address widespread or systematic sexual violence.[emphasis added]¹¹

Both the failure of UN words and the magnitude of harm are haunting. Consequently, every reference to the ‘feminist’ success found in contemporary international institutions, including the UN Security Council, seems to mark the pain of every individual harmed during the ongoing conflict in the DRC. Can words change actions? Can words stop wars, stop violence, stop conflict or rape? These questions underlie the thinking behind this book.

In this book, I examine the words (laws) that attempt to regulate state-led violence that constitutes the international legal definition of armed conflict. The book uses feminist legal methods as a means to analyze the way that international law on the use of force is constructed and understood. The discussion of events in the DRC, above, refers to the violence perpetrated during armed conflict that is generally governed by the international humanitarian law of armed conflict. However, the shift towards recognizing the use of sexual violence as a systematic and widespread ‘weapon’ during armed conflict moves the international legal system on the use of force, the jus ad bellum, towards recognizing sexual violence as a justification for the use of increased force. In fact, the UN’s response to the violence perpetrated in Luvungi and nearby villages was for increased UN military action, even if this was temporally dislocated from the acts themselves. Throughout this book, I argue that institutional and state justifications for the use of military force mirror the gendered model of interpersonal justifications for violence apparent in Western liberal democracies such as the United Kingdom, the United States, Canada and Australia. Consequently, force deployed to ‘save women’ does little to halt sexual violence and other forms of gender-based violence in armed conflict or to halt armed conflict.

I also explore the continuum of harm that women experience during armed conflict and argue that women’s experiences of armed conflict provide strong justification for increased restraint in the use of force, including the use of force on humanitarian grounds.

The endemic sexual violence in the DRC is not the subject of this book, although I was mindful of the violence that continues to be perpetrated in the DRC and elsewhere as I wrote the book. Those who cannot speak in the Security Council due to the conditions they live in, stand as a reminder that UN reform on women, peace and security has not stopped violence. To this end, a furtherance of feminist politics and debates that look at the ways international laws are constructed and justified is a programmed of re-thinking the possibilities of laws, of words and of change: this is the approach of this book.

The book presents claims directed at feminist legal theories and at international law on the use of force. For feminist legal theories, I argue that a re-examination of the foundations of feminist approaches to international law is required. While feminist studies of international law contribute an important critique of the contemporary contours of international law,¹² there remains only limited analysis of the norms regulating force and the question of when force is justified. The book reveals that this absence is reflective of a larger silence from feminist legal theories on the relationship between law and violence. I argue that Arendt’s model of natality as a political framework, which is a focus on creativity through a central focus on birth rather than mortality, is useful to feminist politics seeking to disrupt the law and violence relationship.¹³ This larger claim emerges from recognition that the law and violence relationship is supplemented by social constructions of gender. In exposing the relationship between law, gender and violence, I advocate the necessity of restricting unilateral state justifications for the use of force and for limiting the authorisation of force by the Security Council because justifications for force and the authorisation of force are conceptually tarred by the use of military structures. Alternative means of peace enforcement are consequently devalued and under-utilized within the collective security regime. Feminist action within the security structure must develop a fundamental re-engagement with the very concept of security and potential solutions to security concerns so as to provide answers that do not revolve around the deployment of further force.

The arguments directed at international law recognise recent responses to curb the sexual violence and sexual exploitation and abuse of women during armed conflict.¹⁴ However, I argue that, without recognition of the sexed and gendered bias of the international legal structure itself, recent collective security developments are unable to move beyond the force and counter-force paradigm that assumes that the use of force, when legal, can also be rational and controlled. Furthermore, viewing the use of force through the experiences and narratives of women illustrates how the use of force perpetuates and exacerbates insecurity in women’s lives.

In this chapter, in section two I introduce the project through a discussion of feminist approaches to international law and of the methodology developed: specifically the terms ‘sex’ and ‘gender’, the use of the domestic analogy and the use of the law as narrative technique to explain how they are deployed throughout the text. Section three introduces the international law on the use of force, or jus ad bellum, highlighting the features of the law on the use of force that are interrogated in this work, and outlines the overall structure and conclusions of this book.

Feminist Legal Methods

While situating itself within feminist approaches to international law generally,¹⁵ in this book I have consciously developed three interrelated feminist methods: the use of sex and gender as categories for the interrogation of law, the domestic analogy and the law as narrative technique.

Feminist approaches to international law do not, however, represent a uniform methodological approach. Different strands of feminist legal theories emerge within the international project, and it is from these broader feminist dialogues – found across feminist approaches to international law, feminist legal theories and feminist theories generally – that I have developed the unique approach of this book. In this sense, I am mindful in the text of tensions within and across feminist legal theories (and their intern...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Preface
• Acknowledgements
• Abbreviations
• 1. Feminist legal approaches and international law on the use of force
• 2. Collective security
• 3. Justifying force: self–defence
• 4. Justifying force: self–determination
• 5. Justifying force: humanitarian intervention
• 6. Justifying force in the era of global terrorism
• Bibliography
• Index