WOMEN IN THE CROSSHAIRS: EXPANDING THE RESPONSIBILITY TO PROTECT TO HALT EXTREME GENDER-BASED VIOLENCE.

• Author: Bailey, Christopher M.

1. INTRODUCTION II. THE GENDER GAP UNDER THE RESPONSIBILITY TO PROTECT (R2P) A. International Legal Basis for R2P Generally B. Crimes Subject to R2P III. WOMEN, PEACE AND SECURITY AGENDA: RECOGNITION WITHOUT AUTHORITY TO ACT IV. MODEL SECURITY COUNCIL RESOLUTION ON THE RESPONSIBILITY TO PROTECT ON BASIS OF GENDER A. Model Security Council Resolution B. Applying the Model Resolution to Organizations like ISIS, Boko Haram, & Sudanese People's Liberation Army V. CONCLUSION I. INTRODUCTION

   The world of most Yazidi women living in the Sinjar region of Northern Iraq changed forever the morning of August 3, 2014. (1) In those early hours, hundreds of Islamic State of Iraq and Al-Sham (ISIS) fighters flooded the Sinjar region, rounding up men, women, and children of the Yazidi sect. (2) The Kurdish Regional Government forces, the only security present, quickly withdrew due to ISIS' superior firepower and the speed of their military maneuvers. (3) ISIS fighters, without any meaningful opposition, flooded northern Iraq and over a four-day window proceeded to terrorize anyone in their path. (4) Although the Yazidis faced the brunt of the targeting, both Sunni Muslims and Christians faced severe restrictions and abuse by ISIS as well. (5) As ISIS entered Yazidi areas, they began to systematically separate all males over the age of twelve from all females and small children. (6) ISIS then executed all males over twelve who did not immediately convert to Islam. (7) The execution of the males facilitated the targeting of females for sexual abuse. (8) The women, including girls as young as nine, were identified, cataloged, and then taken into northern Syria to be sold as brides and sex slaves across the growing ISIS territory. (9)

   In the weeks following the August 3rd assault, ISIS' actions were met with global condemnation. (10) The international community sought ways to support Kurdish Security Forces, contemplated airstrikes, and widely argued ISIS' assault constituted genocide against the Yazidi ethnic group. (11) What was not mentioned was the brazen and horrific treatment of women on the basis of gender. (12) Sadly, women and children are regularly the targets of sexual abuse as a tactic or means of war. (13) The conflicts in Bosnia, Rwanda, or the Congo, however, are comparatively different than the conflicts in areas impacted by ISIS. ISIS did not explicitly target women solely on ethnicity or religious affiliation. Instead, ISIS' first discriminating factor for attacks on women was gender. (14) It did not matter whether victims were Christians, Yazidis, Shia Muslims, or Sunni Muslims. ISIS forced women from all groups to be sold as sex slaves or in the case of non-Muslim women, convert to Islam and be forcibly married to ISIS fighters. (15) These women, targeted largely based on their gender, were systematically attacked and enslaved on a level not seen before in modern times.

   It might be easy to state that ISIS and its tactics are uniquely horrific in modern times, however, ISIS and the widespread enslavement of women across Iraq and Northern Syria is just one example of a new dangerous form of extreme gender-based violence (EGBV). Nearly four months before ISIS' brazen attack in Northern Iraq, the Islamist group Boko Haram kidnapped approximately 276 girls from a boarding school in Northeastern Nigeria. (16) In the dead of night, Boko Haram launched an assault on the Government Girls Boarding School in Chibok, Nigeria. (17) After a brief gun battle with government forces, Boko Haram escaped with the students of the boarding school and to this day approximately 219 are still missing and believed to be held by Boko Haram. (18) It is widely believed these girls, and dozens of others kidnapped throughout Northern Nigeria, have been forced into sex slavery, forced marriages, and even used as suicide bombers regardless of their religion or ethnicity. (19) This problem is not just limited to radical Islamist groups like Boko Haram and ISIS.

   In July 2016, after ongoing battles between Sudan People's Liberation Army (SPLA) forces loyal to President Salva Kiir and South Sudanese opposition forces loyal to Riek Machar, SPLA forces stormed a UN compound and nearby hotel popular for foreign aid workers, killed several refugees, and attacked and raped several female foreign aid workers. (20) This attack on the UN compound is only the latest and most brazen case of rape and targeting of women based on gender. Again, in these cases, the women targeted were not primarily targeted based on ethnicity or religion, but instead were victims of targeted abuses against women.

   These incidents and the increasingly blatant targeting of women require a shift in how States, both those engaged in hostilities and the rest of the international community fight to stop such atrocities that constitute EGBV. The best legal tool available, though seldom used, is the concept of responsibility to protect (R2P). (21) R2P, at its most general, legally obligates States to stop extreme violations of human rights within its territory. (22) If a State is unable or unwilling to stop such violations, R2P provides the international community with the right and obligation to interfere, including using armed force, to stop the violations. (23) Under UN Security Council Resolution 1674, this concept may be used to protect populations from "genocide, war crimes, ethnic cleansing and crimes against humanity." (24)

   Largely in response to the conflicts in Bosnia and Rwanda, rape and sexual assault as a tactic of war has often been cited and treated as a "crime against humanity." (25) The central issue, and the focus of this article, is that although there is wide consensus that rape and sexual assault are crimes under international humanitarian law (IHL), there is minimal international legal recognition that the use of rape and sexual assault, including forced marriage, outside of an ethnic basis, triggers the international community's responsibility to protect. (26) Women and children, in particular female children, disproportionately suffer during armed conflict, both directly through targeting but additionally through the second and third order effects of conflict (lack of medicine or food and forced migration). (27) This disproportionate suffering warrants a more tailored approach by the international community to help slow and stop these gender-based atrocities.

   The current international legal framework does not sufficiently protect women who are victim of methodical violence and mistreatment during armed conflict. (28) To best tackle the abuses perpetrated by groups like ISIS and Boko Haram, it is important to understand the current legal environment to assess what gaps exist. First, R2P's most controversial component, the international community's obligation to use force to stop a predetermined list of extreme crimes, when applied "gender neutral" leaves women and children generally more vulnerable to becoming victims of these crimes. Next, to best overcome the protection gap the UN Security Council should issue a new resolution, building off UN Security Council Resolutions 1674 and 1888, explicitly recognizing gender as a protected class akin to ethnicity, nationality, or religion. This new resolution will trigger a responsibility to protect by the host State, and if they are unable or unwilling to stop such violence, authorize the international community to intervene militarily in cases involving EGBV. With an expanded and robust UN Security Council Resolution recognizing gender within the R2P context through the UN Security Council, regional intergovernmental organizations like the African Union, Organization of American States, and the Arab League, can initiate regional monitoring missions to assess ongoing conflicts in their regions to determine if any involve EGBV rising to a level like crimes against humanity or genocide. Finally, with a solid framework at both the international and regional levels recognizing a R2P because of gender, States will be better equipped to pressure offending States to take the necessary actions to protect vulnerable populations or face the risk of legitimate armed force.

2. THE GENDER GAP UNDER THE RESPONSIBILITY TO PROTECT (R2P)

   1. International Legal Basis for R2P Generally

      Since the inception of R2P as a policy response to grave human rights violations at the International Commission on Intervention and State Sovereignty (ICISS) in 2001, the founding principles have been applied with a gender-neutral lens. (29) Spearheaded through the 2000s by then-Secretary General Kofi Annan, the UN pushed for the development of a R2P as an international norm and recognized the legal obligation of States. (30) R2P typically consists of three main pillars: (1) the protection responsibilities of the State; (2) the responsibility of the international community to assist States in fulfilling their national obligations; and (3) the commitment to timely and decisive collective action consistent with the UN Charter. (31)

      Over the past decade there has been much written generally on R2P, however, practically none of the scholarship has focused on the interaction of gender and R2P or explicitly addressed the gaps in protection for women in the most severe forms of armed conflict. (32) This was the case until 2013, when an ambitious group of scholars and practitioners from the Asia Pacific Centre for the Responsibility to Protect attempted to place the UN's parallel Women, Peace, & Security (WPS) agenda within the R2P framework. (33) While novel in tackling the issues of gender-bias in the R2P and humanitarian law prevention and protection mechanisms, the Asia Pacific Centre's research focused on better incorporating gender into pillars one and two of R2P to better address and identify preconditions within societies that tend to lead to extreme gender-based violence (EGBV). (34) Thus, the central goal was to stop atrocities before...