Gender and armed conflict: Queering trends in policy and practice

There are a range of evolving (and stagnating) legal frameworksFootnote ¹⁵ that address the question of gender and women's rights in conflict contexts.Footnote ¹⁶ A critical feminist lens on IHL policy and practice would require a reflection on the historical context of this norm formation as well as accompanying trends. When looking at the human security of women (and other marginalized groups), IHL frameworks paint a more limited picture. While the authors and custodians of IHL do not claim a feminist trajectory in IHL promotion, dissemination or implementation, the way IHL interacts with human rights, refugee law and other frameworks can have valuable dividends for transitional justice, recovery and longer-term development agendas. In order to expand on the role that IHL compliance plays in promoting or unintentionally demoting gender justice agendas in humanitarian contexts, it is important to recognize the role that governments have played in the theatre of war, by using IHL to “code” women as civiliansFootnote ¹⁷ and through other (perhaps unintentional or intentional) ways in which legal frameworks perpetuate traditional and often regressive gender norms and roles in times of armed conflict. This interplay between legal frameworks in times of conflict bleeds into post-conflict transitions and often (re-)enforces certain norms in peacetime. In recent decades, building on the work of gender scholars and feminist critiques of IHL, the International Committee of the Red Cross (ICRC) and others have worked to unpack the gendered dimensions of conflict and the implications for IHL (in particular the principles of distinction, proportionality and precaution, as well as an increasing number of cross-cutting issues).Footnote ¹⁸ Building on the efforts of gender-responsive operational agencies, feminist scholars have queried the principles underpinning aid frameworks – including in law.

Across international law, research and practice, there have been a wide range of attempts to define gender. This article takes a queering approach borrowed from feminist theory, working to highlight definitional challenges for institutions and how those contribute (directly or indirectly) to shaping social and legal norms in the humanitarian sector. A common element in the range of definitions of “gender” is the distinction drawn between sex (biological and physical characteristics) and differences based on social assumptions around values and what are perceived as “masculine” and “feminine” behaviours (social constructs).Footnote ¹⁹ Many institutions and frameworks continue to broadly define “gender” as an “identification of masculinity with characteristics of strength and militarism and of femininity with vulnerability, nurturing and peace”.Footnote ²⁰ The traditional data bias toward quantitative rather than qualitative assessments in the humanitarian sector further complicates attempts to move away from binaries and hierarchies in gender norms and towards a recognition of gender, sex and sexuality as multifaceted, fluid and non-determinative of social hierarchy – a phenomenon that is more common in human history than what is often presented as the norm in the rules-based order of the present day.Footnote ²¹ While accepting the differences between sex and gender, and the various, non-monolithic identities people may associate with both, there is no doubt that the long history of development, practice and dissemination of IHL – as well as the policies and practices of operational agencies in how principled humanitarian programmes are designed and delivered – plays a role in shaping and reshaping social norms.

Many operational aid agencies delivering assistance in contexts where structural inequalities are exacerbated by armed conflicts have been developing a more fluid approach to gender in conflict. Some agencies are taking on the controversies around addressing inequalities as drivers of armed conflicts (which some governments perceive as “political”) by exploring the nexus of (social) gender norms and organized violence, including masculinities and femininities in conflict contexts through conflict sensitivity tools,Footnote ²² while others have pioneered ways to gender needs assessments in humanitarian contexts.Footnote ²³ Institutional responses to gender issues in situations of humanitarian crisis display a wide range of approaches to the question of gender, from being gender-blind (assuming that gender is not an issue in the context) to being gender-sensitive (identifying gender dynamics and using them to inform institutional responses) to being gender-transformative (not only identifying and trying to respond to gendered power dynamics, but also working to transform those dynamics in order to be more equitable).Footnote ²⁴ Amidst a global backlash against women's rights, there are sadly many recent examples of humanitarian organizations with women's rights mandates – from UgandaFootnote ²⁵ to IraqFootnote ²⁶ – that have been accused of “political” interference due to their feminist approaches to the inclusion agenda. Humanitarian organizations looking to build on sector best practice in feminist ways, by addressing underlying drivers of injustice and inequality, can easily find themselves accused of undermining State-sanctioned social and cultural norms and thus allegedly breaching the principles of impartiality and neutrality.

Queering State-centric approaches and the evolution of alternatives to the status quo

There is a very fine line between the legal and political spheres, and the two are easily blurred in situations of armed conflict. IHL is State-centric and operates within global frameworks and institutions, established in an unequal world order and struggling to be inclusive of the gender justice agenda. Unlike this problem-solving approach,Footnote ²⁷ critical feminist theories look at the structural, fundamental changes that are needed and the ontological assumptions that underpin the status quo. One could argue that IHL grew out of liberal approaches in a realist world, resulting in it being applied in a problem-solving political framework for many decades. In contrast, feminists have attempted to engage IHL frameworks by drawing on critical feminist theory. Queer international relations theory is one such approach. It attempts to shed light on ways in which heteronormative discourses of gender and sexuality (propagating a dichotomy of masculinity and femininity) can reinforce a broad historical tradition of heteronormative identity of the “powerful” State.Footnote ²⁸

In the development of IHL, for example, States have historically limited protections to “some victims” of “some wars”, giving priority to the ability (necessity) of States to conduct military operations (while protecting civilians). IHL “legally conditions” who is entitled to protection.Footnote ²⁹ In line with the political trajectory of the times, under pressure from humanitarian stakeholders, the wars of national liberation and decolonization (self-determination) were regulated later – through Additional Protocol I – in recognition of shifting conflict dynamics and the fact that the range of conflicts covered by IHL has not remained static. Additional Protocol II, devoted to NIACs, was an even more difficult diplomatic exercise, and the threshold for its application remained high. Nevertheless, both protocols were considered progressive at the time, and nearly all their provisions were eventually adopted by consensus.Footnote ³⁰ Institutions like the ICRC have worked to make IHL more effective and relevant in today's contexts through the use of commentariesFootnote ³¹ and an emphasis on customary law.Footnote ³² However, in a global context of backsliding in terms of State-sanctioned rights-based agendas, respect for IHL is also at risk, and a continued reliance on State-centric agendas may require additional institutional investment in multi-stakeholder consultations – especially as political and social dynamics shift and rules-based order is eroded. This could present a critical juncture for promoting the relevance of and respect for IHL, as well as the humanitarian principles more widely. This does not have to mean reopening the Geneva Conventions at a time that is not favourable to humanitarian (and human rights) principles,Footnote ³³ but it could mean that it is important to reduce silos in the wider aid sector and to engage more with feminist critiques of principles and frameworks, drawing more on critical theory approaches in the humanitarian sector.

Since the end of the Cold War and the proliferation of NIACs, critical theories, including those queering the gender and sexuality of international relations, have contributed more and more to the implications of frameworks such as IHL for women and gender justice in the armed conflicts of today. Much has been written to acknowledge the impact of technological advances on weapons and tactics, as well as the effect of counterterrorism and urbanization of warfare as priority areas of change requiring attention in terms of IHL effectiveness. In terms of social change, the traditional roles of men and women have also changed significantly since the Geneva Conventions.Footnote ³⁴ There has been an increase in scholarship around the impacts of armed conflict on gender dynamics, and on women and girls in particular, but also around inclusion more widely. Some leading agencies are making a concerted effort to identify and address gendered implications for the application of IHL. In analyzing the role of gender and the diverse experiences of individuals and groups in armed conflict, the ICRC's work on identifying and addressing gaps in IHL effectiveness through a gendered lens helps operational aid agencies draw on IHL in navigating structural inequalities when delivering humanitarian assistance. Such approaches help to build confidence in the relevance and applicability of IHL, but also help reduce unintended harm when operating in situations of armed conflict (of all classifications). Applying a gender lens to the IHL principle of distinction, for example, helps expose important fault lines around perceptions of gender norms, biases and assumptionsFootnote ³⁵ (i.e., the common assumption that women are more peaceful). As noted by the ICRC, gender biases can affect how the principles of distinction, proportionality and precaution are applied in practice, and further research on gendered harms in conflict is needed to help identify and address trends and patterns across contexts. Building on feminist critiques of IHL principles, many local and international operational agencies have engaged in a wider debate on the applicability of the humanitarian principles (e.g. neutrality and impartiality) in the aid sector.

When viewing the humanitarian principles as key assumptions underpinning the humanitarian sector, the conflict sensitivityFootnote ³⁶ lens draws attention to context and institutional mandates. It is understandable that humanitarian agencies tend to have specific mandates and a range of risk appetites (often based on the agency's track record and programmatic portfolio), and that there are operational limitations to the humanitarian principles of neutrality and impartiality when addressing underlying social dynamics around sex, sexuality, gender and power. While many humanitarian agencies have constructively engaged with expanding feminist scholarship in recent decades, the strong data preference toward quantitative analysis biases the sector toward addressing sex inequality rather than gender inequalities.Footnote ³⁷ Engaging on drivers of conflict, and pre-conflict inequalities (especially when these touch on perceived socio-cultural norms and identities of conflict-affected populations and could trigger a normative power shift in a community), is often perceived to be “political” by aid agencies, and can lead to challenges in negotiating humanitarian access to those most in need. As gender issues are highly intersectional, many agencies perceive some of these issues to be either outside of their mandate or too sensitive to engage with through public spaces. If humanitarian aid delivery is perceived (locally or internationally) to operate according to traditional biases and binaries around the roles of men and women, this can reinforce gender hierarchies, exclude individuals and groups, and cause unintended harm to women's rights and gender justice agendas in conflict-affected contexts (despite humanitarian agencies’ efforts to avoid these scenarios).

Some of the humanitarian principles are particularly contested in the wider human rights and feminist communities. Humanitarian practitioners have cited the humanitarian principles (especially neutrality and impartiality) as inhibitors to more meaningful engagement on gendered norms, roles and power relations.Footnote ³⁸ While neutrality is an important principle for many key humanitarian actors, in contexts where social norms underpinning an armed conflict are extremely harmful to some groups (e.g. women), the principle of neutralityFootnote ³⁹ can be more difficult for principled actors attempting to enjoy the confidence of all stakeholders and avoid controversies of a more political nature.Footnote ⁴⁰ In fact, the fragmentation of the legal regimes governing the situation of the more marginalized groups in conflict has led to some historical collaborations and tensions between humanitarian and human rights actors, keen to push the “boundaries of war” in areas where IHL or other frameworks have not caught up.Footnote ⁴¹

Some humanitarians, for example, point to the neutrality principle as a colonial legacy, often deployed to imply that international humanitarian actors are more neutral than local or national humanitarian stakeholders.Footnote ⁴² As noted above, addressing gender justice in conflict contexts is highly intersectional and non-linear. It is difficult to imagine a local community and its first responders in crisis neatly moving from humanitarian to development and peacebuilding objectives, as well as remaining neutral (or even sustaining perceived neutrality) in contexts of armed violence. As the humanitarian sector engages with the localization agenda, it is difficult to do so without acknowledging colonial legacies and associated inequalities. Many leading humanitarian donors (some key donors are also United Nations (UN) Security Council members) are either former colonial powers or regional hegemons, and some have a long tradition of instrumentalizing aid as “soft power” in their foreign policies.Footnote ⁴³ Discourse around the Responsibility to Protect agenda and humanitarian engagement on the root causes and drivers of conflict have exposed possible divisions between local (national) voices and international, institutional agendas, as well as tensions with the foreign policy objectives of StatesFootnote ⁴⁴ in a globalized but unequal world.

The sector-wide engagement with the issue of neo-colonial legacies, racism and anti-racism has shed further light on the issue.Footnote ⁴⁵ When it comes to racial justice, one could draw some parralels between how the humanitarian sector has approached the politically sensitive issues of racism and colonialism and the ways in which the sector has often approached gender. Some stakeholders in the aid sector focus on mainstreaming gender and race through inclusion, while others take a more transformative approach in seeking ways to be actively anti-racist and feminist and to confront colonial legacies embedded in the aid sector. As with issues of racism and colonial legacies, actors in the sector take wide-ranging approaches, from gender-blind to gender-transformative. Some actors prefer to avoid politically sensitive issues of identity and race, citing neutrality and avoiding challenging colonial legacies (given the overlap of those legacies with the donor landscape and/or conflict actors' own histories). One could also draw parallels with the discourse around “white saviour” mentality and the feminist and wider humanitarian sector critiques of the Western “civilizing” mission, and how international aid agencies risk reinforcing patrimonial colonial legacies through the humanitarian principle of neutrality. There is a vibrant discourse from Myanmar to Ukraine queering the question of whether neutrality, for example, is even morally desirable (let alone feasible) in contexts of armed conflict.Footnote ⁴⁶ Given the strong interconnection between norms and legal frameworks, the humanitarian sector and the institutions within it (especially those operating and collecting evidence in contested spaces of fragile and conflict-affected contexts) are well placed to engage in the evolution of this discourse. As noted above, operational agencies must work to preserve access to those they serve, and are therefore often risk-adverse when engaging on issues of perceived “political” controversy. In order to help transform the humanitarian sector, such agencies are increasingly partnering with other stakeholders, such as educational institutions and media, to help share and develop learning and move toward reforming (and, where possible, transforming) normative frameworks. IHL dissemination is one such space where these dialogues and dissonances emerge, as it grants access to those affected (or potentially affected) by armed conflict in order to help them understand the wider normative frameworks and to challenge the underpinning assumptions and the genealogy of discourse around the humanitarian principles. Rightly or wrongly, in contexts like UkraineFootnote ⁴⁷ and Syria,Footnote ⁴⁸ national humanitarian actors have been challenging the humanitarian principles of neutrality and impartiality, as well as some of the other principles of IHL. Some of them have identified international institutions as the focal point for their debates, encouraging further queering of the underlying assumptions of humanitarian frameworks.

Feminist research methods and IHL: Limitations and emancipatory potential

Feminist thinkers argue that the ontological order of our world is neither natural nor neutral, and therefore that States and institutions (including humanitarian ones) have grown out of an essentially “patriarchal” world order – “a structural and ideological system that perpetuates the privileging of masculinity”Footnote ⁴⁹ and often erects divisions between the “private” and “public” spheres in order to reduce accountabilityFootnote ⁵⁰ and benefit the status quo, or a return to “traditional values”. The focus of critical feminist discourse is on powerFootnote ⁵¹ and the role that power plays in shaping norms. Such discourse may require more humanitarian organizations to explore informal power and to look beyond the humanitarian statistics in order to address some of the root causes of suffering while delivering life-saving aid.Footnote ⁵²

As societies do not treat men and women equally, some feminist scholars challenge IHL's basis of equality of protection.Footnote ⁵³ Some researchers draw attention to the relatively “impoverished” understanding of IHL in the wider international relations (IR) scholarship, and the consequences of this for keeping IHL relevant in today's shifting politico-military contexts. With a focus on compliance and civilian targeting, the full strength of what IHL has to offer has perhaps been overlooked by IR scholars. The “productive power” of IHL (and its association with social relations and structures) has also perhaps been overlooked by some scholars,Footnote ⁵⁴ to the detriment of both IHL and IR (including critical feminist theories). Essentialized gender roles tend to be sustained by international law and policy.Footnote ⁵⁵ In contexts of violence and armed conflict (from the household and community to the national and international spheres), social norms play pivotal roles in the conduct of hostilities that can resonate for generations, creating stubborn inequalities through the historical memory of armed conflicts. In contexts where extreme (gender) inequalities and discrimination were already prolific, they are likely to be exacerbated during armed conflicts, contributing to factors driving the vulnerabilities of women.Footnote ⁵⁶ The cumulative effect of patriarchal social norms often engrained in policy-making and practice, from laws and regulations to military practice and training, can reinforce misogyny in social norms, where masculine characteristics are assigned to powerful actors while feminine characteristics are seen as weaker and are assigned to weaker actors.Footnote ⁵⁷ Reading into the language and framing of IHL (in its historical context), a gendered framing can be seen: those who are gendered feminine must be protected by those who are gendered masculine (consider, for example, the masculine concepts of “honour” and “special honour” afforded to women in the Geneva Conventions).Footnote ⁵⁸

A queer reading of international law, more generally, draws attention to historical biases toward binaries (of male and female) and to the hierarchies of the sexes as ingrained in policy and law (privileging the male, often denying female agency, and relegating the female to the status of a reproductive tool of State-building to be protected for the sake of national growth and military security) and then spread through imperialism and sustained through colonialism.Footnote ⁵⁹ Queer analyses are highly intersectional and push for holistic approaches to the development, continuous review and application of laws. Queering is seen as a continuous process that helps create improved conditions for law to play a more constructive and emancipatory role in societies within local and national contexts. These approaches reinforce feminist research methodologies, which often encourage humanitarians to advance knowledge-building through qualitative methods rather than just binary, quantitative ones, to be more intersectional when analyzing needs and assessing risks, and to communicate the humanitarian principles in a more conflict- and context-sensitive manner.

While reflexive and emancipatory knowledge-building has a long history across various fields of scholarship, what is unique to feminist research is a commitment to building knowledge from women's lives (lived experiences) and an effort to avoid assuming the State as a given unit of analysis.Footnote ⁶⁰ However, scholars point to some serious limitations of IHL and feminist engagements with it (in large part due to the age and historical nature of IHL's development):

• • While IHL has a strong treaty basis, the stagnant treaty development since 1977 limits the space for feminist influencing.

• • The reliance on customary international law to develop IHL tends to privilege State practice, irrespective of the global exclusion of women from leadership and decision-making in most States.Footnote ⁶¹

As noted above, in a global context of regression of the rights-based agenda (including backsliding on women's rights), systematic violations of IHL and closing humanitarian and civic spaces, communities are increasingly challenging what they sometimes perceive as State-centric (and often Eurocentric) approaches that effectively sanction and entrench inequalities, exclude and disenfranchise, exacerbating grievances against unfit social contractsFootnote ⁶² and often triggering the need for humanitarian responses.Footnote ⁶³ Queer research methods, with their focus on a constant queering and disruption of assumed norms, as well as feminist challenges to the humanitarian principles and the nature and development of IHL, can help reduce the (perceived or actual) risk of elite capture of State-centric frameworks at a time of democratic backsliding.

While the initial feminist interventions found a “masculine world” of international law, the landscape has been changing and there is an overall increase in the measures governing women's rights in armed conflict.Footnote ⁶⁴ In recent years, the rise of queer IR approaches has produced invaluable insights into the political character of sexual norms and logics. This approach looks closely at the role of sexuality in foreign policy decision-making, rather than merely studying LGBTQI+ groups and adding them to an existing world order. Rather than adding sexuality as just another factor in policy-making, queer approaches investigate how the operations of international power are shaped by sexual norms and logics.Footnote ⁶⁵

The queer turn in IHL could offer insights into ways to unpack the social norms underpinning the Geneva Conventions, allowing humanitarians to engage with queer theories and the underlying drivers of discrimination around sexuality (and the wide reverberating impacts on the LGBTQI+ community, women, men, girls and boys). This could serve the gender justice agenda more widely, and would help to avoid reducing the LGBTQI+ community to another vulnerable category. The queer turn in IHL could help avoid the “add women and stir”Footnote ⁶⁶ inclusion trap highlighted as an important lesson learned for women's rights movements. Unpacking the influence of sexuality and gender roles on policy-making could support a wider gender justice conversation in the humanitarian sector (i.e., going beyond the duty to protect those most vulnerable to patriarchal social norms). International criminal law and other frameworks, for example, have come a long way to confirm that rape and other forms of sexual violence are war crimes, crimes against humanity and even genocide, and there is recognition among IHL stakeholders that women have been participants in armed conflicts and not just victims of them.Footnote ⁶⁷ Whether as civilians or combatants, however, women are generally more likely to experience violence in conflict and retain a subordinate position in society; even possible transformative gains in social status toward equality during the societal shifts that occur in times of armed conflict can be swiftly rolled back during recovery and reconstruction.Footnote ⁶⁸ UN Security Council resolutions focused on the Women, Peace and Security agenda have contributed significantly to the expansion of potentially transformative approaches to gender in armed conflicts, but these efforts are still unlikely to be sufficient to expand the construction of gender in IHL.Footnote ⁶⁹ A more concerted effort is needed to bring humanitarian, development and peace frameworks together in order to help break the continuum of violence.Footnote ⁷⁰ How the humanitarian sector responds to the changing nature of conflict, including working with narratives and memory, disseminating knowledge and engaging in civic education on the humanitarian principles and IHL, plays an important role in (re-)shaping the nature of the humanitarian system away from binaries that privilege harmful social norms. The ways in which IHL is disseminated, and the humanitarian principles reflected in the documented histories of human suffering, factor into community perceptions of humanitarian institutions and wider trust factors in the shifting humanitarian system.

The changing political landscapes and the nature of war

Principled humanitarian actors tend to be wary of the politicization of humanitarian action – especially when it comes to aid flows.Footnote ⁷¹ However, in an unequal and increasingly globalized, interconnected world, the implementation of the humanitarian principles may require additional tools, approaches and indicators. A feminist reading of humanitarian contexts draws attention to the perceptions of those whose voices may be intentionally or unintentionally muted or silenced, and perceptions of humanitarian principles such as neutrality, as formed by those affected by armed conflict.Footnote ⁷² Lending critical research approaches to the study of IHL can help identify threats to, and opportunities for, this key legal framework. Given that women's rights and gender justice are regulated by a range of regimes and legal frameworks, including IHL, that are sometimes in tension with one another and sometimes overlapping, the proliferation of these norms can be a progressive opportunity but can also create loopholes for States to selectively apply these frameworks (including those with the least accountability for violations).

Due to a range of historical and societal factors, IHL takes the experiences of men (i.e., the historically male-dominated field of armed conflict) as its primary starting point and therefore tends to fail to take account of women as legal subjects and agents in their own right.Footnote ⁷³ Just as the changing nature of warfare (e.g. cyber warfare) requires further legal and regulatory attention,Footnote ⁷⁴ it is possible to imagine that the changing nature of social norms may require additional legal attention as well. Some scholars point out an important temporal element that while the Geneva Conventions and Additional Protocols were adopted prior to concerted feminist entry into international law, the Rome Statue of the International Criminal Court is linked to feminist advocacy efforts.Footnote ⁷⁵ Institutions have defined and redefined conflict in a range of ways, from the Convention on the Elimination of All Forms of Discrimination against Women's broad definition of conflict, which captures situations of low-intensity violence,Footnote ⁷⁶ to the UN Security Council, which resists broad definitions restricting the application of agendas such as Women, Peace and Security to only a number of situations.Footnote ⁷⁷ In terms of IHL specifically, its custodians have noted the dangers of over- and under-classification of conflict (e.g. with regard to how IHL applies to counterterrorism operations), which can lead to similar problems of States choosing what elements of international law apply to which situation of violence.Footnote ⁷⁸ Some argue that international law frameworks are grounded in a Westphalian conception of sovereign nation-States – an essentially European approach to statehood. In the context of the globalized and increasingly non-State nature of warfare (whether that includes non-State armed groups or private security companies), the State's monopoly on the use of force has been reduced and space has been created for “new wars” that can elude existing legal frameworks.Footnote ⁷⁹ While compelling cases for IHL relevance have been made, including when addressing issues of counterterrorism and IHL applicability,Footnote ⁸⁰ in today's globalized, interconnected and hyper-urbanized realities, dominated by NIACs, the binary distinctionsFootnote ⁸¹ which served to uphold IHL (by design) are being eroded.

Given the historically uneven nature of the genesis of legal frameworks governing the status of women's rights and gender justice in conflicts, some are calling for humanitarians to actively engage in social dynamics in order to be more sensitive to short-term risks but also to the long-term implications of humanitarian action on the conflict and wider human development trajectories of conflict-affected communities. The humanitarian system is increasingly being challenged on issues of gender and the universality (global applicability) of its principles, shedding light on the Eurocentric development of the humanitarian principles, IHL frameworks, humanitarian histories and the wide range of practitioners involved (including those left out of shaping the system). While humanitarian policy and practice has generally recognized gender-specific needs and experiences in times of armed conflict, many institutions still do not fully acknowledge that the timing, typology and conduct of humanitarian responses has an impact on wider issues of gender norms and inclusion (i.e. going beyond the binary picture captured through increased use of tools such as gender desegregated dataFootnote ⁸² and similar progressive approaches in the sector). Many struggle to reconcile the humanitarian system's reliance on quantitative data and “global North” donor base with the pitfalls of relying on binaries and gender hierarchies, and sustained acceptance of the humanitarian principles as universal (given their Western European origins and colonial heritage). Humanitarian action remains deeply gendered, and humanitarian actors do not exist outside of gendered norms and roles.Footnote ⁸³ Whether such actors acknowledge or recognize their respective humanitarian actions as “political” or not, the types of activities conducted, rationales and timings of responses all contribute to shifting social norms (as well as cultural and other dynamics), challenging agencies working to adhere to the principles of neutrality and impartiality.

Impartiality: The aid system and the vulnerability trap for women

Vulnerability is not an easy category to measure and can be highly subjective, requiring reflexivity and conflict sensitivity. In a situation of armed conflict, individual or group vulnerabilities may be affected by the type of threat, the length of exposure and the ability of those affected to cope. If groups are facing discrimination in peacetime, they are more likely to face marginalization and suffering during armed conflict. The reasons why women may be targeted in armed conflicts can vary greatly, from being overlooked in military planning to being deliberately targeted as standard-bearers of cultural identity or symbols of the futureFootnote ⁸⁴ (their reproductive value). The nature of the Geneva Conventions’ references to women's reproductive and mothering roles is highly gendered. Likewise, women are repeatedly placed in the same category as the wounded and sick. The reproductive capacity of women and their placement as natural “caregivers” are given a strong legal endorsement.Footnote ⁸⁵ In a wider context of international law focusing on the particular assumptions and experiences of men as representing all “humans”,Footnote ⁸⁶ the gendered references to women's roles in the Geneva Conventions tend to reinforce the societal norms prevalent at the time of the Conventions’ drafting and often inadvertently carry them forward to today.

The social meaning of sex, as well as the treatment of women and their perceived vulnerabilities in the Geneva Conventions, can be seen through the prism of the three categories outlined in the Commentary to Article 14 of Geneva Convention III (GC III): weakness, honour and modesty, and pregnancy and childbirth. Although Article 14 deals with the treatment of women prisoners of war, it captures the historically gendered concepts of women that emerge throughout the Geneva Conventions.Footnote ⁸⁷ The ICRC's updated 2020 Commentaries on GC III draw attention to a more nuanced reading of the protections offered to women to mean a focus on women's specific needs in situations of armed conflict, and challenge the underpinning gender assumptions around women's agency and non-combatant status implicit through much of the Conventions.Footnote ⁸⁸ A sustained shift toward a more rights-based interpretation of underlying assumptions in IHL, combined with the sector's reflexivity on more ideological issues around gender roles and the “ethics of care” (the ideological assumption that women are different than men, are more peaceful, and have a dedicated role in society to preserve and sustain life – and should be treated and protected as such), could help move away from viewing all women as a homogenous and victimized group in armed conflicts.Footnote ⁸⁹ A sustained learning and multi-stakeholder engagement towards normative and legal shifts could help improve IHL effectiveness and reduce a perception that IHL is unable to move beyond the “male norm”. As queering refers to a continuous process of questioning the normative and challenging assumptions, this and other feminist frameworks can help move legal development forward and reduce some of the sector perceptions of stagnation and irrelevance.

Another historical challenge in IHL (in large part due to the nature of State approaches to sovereignty) is its historical track record in classification. The types of conflicts that IHL has addressed have not remained static over the decades, and NIACs have traditionally been resisted and/or overlooked. Internal (including colonial) conflicts were excluded from IHL until 1949, with powerful States resisting the NIAC classification and application of IHL until today. This has inhibited IHL application and relevance in some of the world's most brutal conflicts, including those where women and other groups exposed to systemic, prolonged discrimination and exclusion have been systematically targeted with impunity. But critically, it has also contributed to the narrative of IHL, wherein scholars of inter-State IHL compliance who use historical datasets uncritically replicate a particular historiography of war and IHL development shaped by defence of State sovereignty and imperial power.Footnote ⁹⁰

Some argue that the focus on sexual violence can obscure women's broader experiences in armed conflicts, and that a normative recognition of gender roles can link women directly with victimhood; this undermines women's agency as active participants and fails to consider women's broader experiences in armed conflicts.Footnote ⁹¹ In a historical reading of IHL development, scholars point to provisions to protect women that inextricably link a woman's honour to her sexuality (e.g. Article 27 of Geneva Convention IV, reference to rape applying in international armed conflicts).Footnote ⁹² The UN Security Council has particular relevance as one of the few bodies able to sanction due to violations of IHL; however, in line with the Security Council's mandate, sanctions regimes are primarily invoked when there is a threat to peace and security that meets the (political) threshold needed to reach the Council's agenda. While there has been some progress, the relatively narrow definitions used by the Security Council limit the scope for enforcement of women's rights.Footnote ⁹³

An important example of the need to address wider social dynamics is the issue of protection of men and boys in times of armed conflict (as well as engaging men on gender justice issues in general). There has been a vigorous debate in women's rights and gender justice spaces around the (perceived) vulnerabilities of men and masculinities in armed conflict. A practical example is around humanitarian evacuations: if women are “vulnerable” by virtue of their sex and the gender norms assigned to them in highly unequal societies, then it is easy to overlook the threats and risks to men in situations of a hypermasculine culture (common to armed conflicts and the organizations that operate within them).Footnote ⁹⁴ From the Balkans to the Middle East, there are examples of powerful drivers of vulnerability and risk to males (e.g. risk of conscription into armies systematically violating IHL and other frameworks or risk of being targeted by those armies due to race, sect, age or political affiliation – or even perceived affiliation). Scholars point to the need to focus on gendered assumptions in humanitarian vulnerability assessments that render men and boys vulnerable through gendered norms and institutions. These scholars point to humanitarian evacuations focusing on women and children, grounded in the assumptions that women are much less likely to directly participate in hostilities and that by virtue of their sex and gender, they are more vulnerable to the primary and secondary impacts of armed conflicts. While these assumptions broadly hold, in many contexts men and boys have particular vulnerabilities due to their sex and gender which render them vulnerable to abuse and sex-selective killing.Footnote ⁹⁵ It can be argued that these norms are reflected and reinforced in IHL, where vulnerabilities have been deeply gendered by social norms dating back many decades. Masculinities and their associated vulnerabilities have been too often overlooked in the policy and practice of the humanitarian sector.

Much of the data underpinning humanitarian country response planning is gender-blind.Footnote ⁹⁶ This issue is not exclusive to fragile and conflict-affected contexts or the humanitarian sector – policy-makers across the globe are struggling to address a prolific and prolonged data gap that has resulted in a “default male” (as human) planning model, with serious long-term consequences for urban planning, infrastructure, inclusion and wider social relations.Footnote ⁹⁷ At times of crisis, these data gaps become critical and heavily politicized, and the humanitarian sector is no exception to such social policy challenges. Approaches to inclusion are focused on the symptoms rather than the (perceived) causes of vulnerability. While there are some positive shifts in the wider sector, a traditional (problem-solving) and purely reactive approach to humanitarian work (especially at scale) can prove to be conflict-insensitiveFootnote ⁹⁸ and can lead to community harm (i.e., pursuing inclusion without addressing any of the root causes or drivers of discrimination). In studies focused on the “do no harm” approach of the sector, providing aid without addressing drivers of vulnerability can be harmful or can be seen as such,Footnote ⁹⁹ especially by national community stakeholders who will live with the consequences of these dynamics long after the international humanitarian response has ended.

Provision of needs-based assistance is highly intersectional in nature and can easily be perceived as a “political” act that shifts gendered power from the home (private) to the public sphere. Some practitioners have cited the humanitarian norm of “impartiality” as a reason to reject tailoring responses to the specific needs of women or gender-diverse persons beyond protection concerns.Footnote ¹⁰⁰ Those working to address the colonial heritage of today's global humanitarian architecture point to dynamics of challenging patriarchal and colonial norms and legacies embedded in the history of the humanitarian sector and many of its associated frameworks, institutions and agencies. When applying an intersectional lens, the multiple (and historic) drivers of vulnerability and their nature must also be taken into account.Footnote ¹⁰¹ A queer turn in applying the humanitarian principles and approaches to IHL would see a regular questioning of the assumptions underpinning the sector's approach to the perceived and actual needs (and agency) of those who find themselves in need of humanitarian assistance.

Short-term compromises and long-term consequences: The female front line

After decades of engagement with feminist movements and concerted lobbying efforts, key humanitarian actors are grappling with gender neutrality in humanitarian crises. Humanitarian stakeholders are increasingly recognizing intersectionality in vulnerabilities and how they vary across contexts. At a minimum, major humanitarian stakeholders are recognizing structural inequalitiesFootnote ¹⁰² and attempting to mainstream gender (targeting equality of outcome rather than equality of opportunity).Footnote ¹⁰³ This is an important step toward gender empowerment frameworks, but more will need to be done given the current global context. However, this progress should be taken in the context of two limiting factors:

• • a global trend in regression on key strategic women's rights goals (shifting social norms around gender justice); and

• • a regression of the rule of law and democracy (increasing civic and humanitarian space restrictions).

Few global institutions are willing to fully recognize that women's rights and gender justice have stalled,Footnote ¹⁰⁴ and in fragile and conflict-affected contexts where humanitarian responses are in operation, there is a particularly high risk of gender justice backsliding.Footnote ¹⁰⁵ The issue of humanitarian accessFootnote ¹⁰⁶ and civic space is of particular concern to national and international humanitarian efforts alike. The State-centric nature of IHL development assumes that the States contributing to the process are on a general, broadly linear trajectory toward liberal, democratic governance systems or, at a minimum, that they respect a rules-based international world order. There is now more wide recognition among development actors that human development (especially in fragile and conflict-affected contexts)Footnote ¹⁰⁷ is not a linear process,Footnote ¹⁰⁸ and progress along the liberal international order trajectory is not automatic or universal, nor should it be taken for granted. Globally, only around 3% of the world's population live in a context which allows them to organize, participate and communicate with each other freely and without hindrance, and to influence the political, economic and social structures around them.Footnote ¹⁰⁹ The picture around humanitarian access and the enabling environment is equally grimFootnote ¹¹⁰ (particularly for those humanitarians who do not enjoy diplomatic privilege, especially national staff and national organizations operating entirely under the jurisdiction of the conflict-affected State).

This section explores practical implications for national organizations attempting to adhere to principles of neutrality and impartiality designed for international humanitarian responses, grounded in shared principles and in IHL and related frameworks, through a series of examples from conflict-affected contexts, including Afghanistan, Yemen and Ukraine. The short case studies outlined below draw on front-line issues such as humanitarian negotiations,Footnote ¹¹¹ inclusion and mainstreaming efforts, as well as attempts to apply humanitarian frameworks in ways that favour the more transformative agenda of gender justice alongside concurrent humanitarian efforts. These examples have been chosen to illustrate areas where humanitarian concessions around gender justice may have inadvertently compromised long-term development efforts by reinforcing harmful social norms that disproportionately impact national women's rights and/or women-led organizations delivering humanitarian assistance.

Emancipatory dividends from principled humanitarian action

While some view IHL as a limited and potentially stagnating legal framework, others point to the emancipatory potential in how the IHL regimes interact with international human rights law, international criminal law, UN Security Council agendas and principled humanitarian action in practice. Undue expectations are often placed on humanitarian frameworks, including IHL. The needs-based approach to civilians in conflict may limit the scope for women's inclusion and participation in humanitarian decision-making, but its interaction with other rights-based legal frameworks can help expand engagement with a broader set of civil society voices.Footnote ¹⁴⁹ One could argue that IHL development may be lacking in diverse civil society engagement, in part due to external constraints on civil society and civic space more widelyFootnote ¹⁵⁰ and in part due to under-resourcing of civil society efforts (as highlighted by Yemeni civil society organizations). Nevertheless, IHL remains a key legal framework that is systematically applied and invoked in practice on a regular basis by a wide range of national and international, State and non-State stakeholders, and the application of the humanitarian principles in contexts of extreme inequality remains an important source of data and historical narratives. For example, the dissemination of IHL is seen as a compliance and prevention tool, an approach that some argue is under-utilized by States and institutions as an important avenue for civic engagement.Footnote ¹⁵¹

These rich and diverse practices in the humanitarian sector create a space for engagement with a range of legal instruments that address longer-term development challenges, but they also create a space where legal frameworks can draw on one another to reduce unintended harms (driven by patriarchal and/or other discriminatory historical norms) and improve, inter alia, IHL compliance in the long term. In the practice spaces of the humanitarian sector, a lively debate around new ways of working in the humanitarian–development–peace nexus is seeing increased blurring of humanitarian mandates with development and peace objectives. Some organizations see this as an opportunity for gender justice and women's rights objectives to be addressed in humanitarian frameworks.Footnote ¹⁵² This debate goes to the heart of the humanitarian principles of neutrality and impartiality. With militarization on the rise, humanitarian access and civic spaces increasingly restricted, and national humanitarian voices silenced and marginalized by anti-NGO laws and coercion, it is critical to protect the hard-fought operational independence of humanitarian actors. However, humanitarian objections to the triple nexus risk missing the opportunities it offers humanitarians to be more conflict-sensitive and more inclusive,Footnote ¹⁵³ and to potentially bring forward some of the productive elements of IHL development that have been overlooked by other sectors and research fields in the past. In queering the humanitarian principles of impartiality and neutrality, as well as IHL, it is important to recognize their limitations. Looking at these principles and frameworks from the perspective of national organizations working across the humanitarian, development and peacebuilding silos in their respective communities serves as an important stocktake of their limitations and potential intersectional opportunities.