How the Systemic Discrimination against Women in Weapons Classification and Enforcement is a Serious Violation of Humanitarian Law

INTRODUCTION

The central purpose of international humanitarian law (IHL) is to alleviate the suffering caused by
war to the greatest extent possible. To do this, IHL requires states to ensure the protection of
civilian populations and, regulates the means of warfare, including prohibiting the use of certain
weapons.

i The International Court of Justice (ICJ) describes IHL's regulation of weapons as
“intransgressible principles of international law”, to be observed by all States.

ii Yet, women do not enjoy the equal protection of these intransgressible laws on weapons.
The major weapon used against women and girls in today's armed conflicts is rape. However,
rape is not categorized by states as a “real” weapon, one that must be evaluated under the
“intransgressible” principles of the laws of weaponry. Thus, unlike other weapons unlawful to use
in armed conflict, such as starvation, herbicides, and chemical weapons, rape has never been
declared to be an illegal weapon or means of warfare.

iii Consequently, rape victims, who are
disproportionately women, are denied the full panoply of remedies for their injuries, including
sanctions on the violator state, available to other victims of unlawful weapons. Further, the
failure to classify rape as an illegal weapon of warfare is a dangerous lapse in global security.

The failure to classify rape as a weapon is an affirmative act by states that constitutes a serious
violation of IHL.

Weapons classification is not the only discrimination against women under IHL. The use of
biological weapons is unlawful in all circumstances. Yet, no state has been held accountable, nor
any commander prosecuted, for the ongoing, systematic, and deliberate transmission of HIV via
rape of women in armed conflict.

The deliberate transmission of HIV by any means in armed conflict is the unlawful use of a biological
weapon and violators must be held accountable. The failure to enforce illegal biological weapons
use when the victims are female is a shocking breach of the non-discrimination principle
grounding IHL, and one which has created dangerous lapses in global security.
This Q and A addresses both discriminatory breaches of the laws of weaponry; the failure to
classify rape as a weapon and the failure to prosecute deliberate HIV transmission as the use of
an unlawful weapon

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