Gender Identity, Gender Based Violence, and the Responsibility to Protect

Tommaso Trillò, The University of Oxford, United Kingdom

Tommaso is currently serving as Junior Researcher at the Budapest Centre for the International Prevention of Genocide and Mass Atrocities. He holds an MSc in Migration Studies from the University of Oxford and a BA in Political Sciences from the John Cabot University.

Over the last few decades, attention to gender issues has consistently grown in virtually all fields, from economics to anthropology, from public policy to humanitarian intervention. Despite expanding popularity, however, “gender” remains a rather marginalized area of study. As a matter of fact, “gender” is often treated as a “something to do on the side” of other initiatives, most of the time depending on the availability of residual funding after “more relevant” issues have been addressed. The mass atrocity prevention community is not immune from this dynamic. Despite a verbal commitment to the mainstreaming of gender issues as key elements of concern, gender-related projects remain relatively underfunded and marginalized.

Arguably, the study of gender and the implementation of gender-related policies and initiatives should be a more prominent priority in the agenda of scholars, policymakers, and practitioners working in the field of the responsibility to Protect (R2P). Attention to gender based violence (GBV) in time of conflict recently exploded, especially after the adoption of UN Security Council Resolution 1325 on Women, Peace, and Security. However, as the title of the resolution explicitly suggests, the focus of GBV has mostly been on forms of violence specifically experienced by women. While the term “gender” should include both biological sexes, the equation of gender issues with women’s issues de fact creates pockets of exclusion from protection of male victims of some very specific forms of GBV. As a matter of fact, these forms of violence are often unreported, understudied, and at times lack recognition as actual violence amounting to torture or persecution.

In light of the above, this essay wishes to be a thought-provoking piece with the following as objectives. Firstly, gender should be recognized by the R2P community as a social category that is as meaningful as race, nationality, and ethnicity. Accordingly, gender should be studied and considered as a key element in the perpetration of violence. Secondly, the equation of “gender” with “women” should be abandoned because it is detrimental to the achievement of full protection needs for specific groups currently neglected, including male victims of GBV. Thirdly, neither of the two biological sexes should enjoy better protection under the framework of “gender”. Rather, both groups should be recognized as having gender-specific protection needs and therefore be the object of specific protection policies and actions. Finally, this paper wishes to argue that the international community already possesses the tools in order to offer full protection to people facing GBV through the Refugee Convention of 1951 and the concept of R2P, despite the relative weaknesses of both instruments. Achievement of protection is thus a matter of efficiency at all levels, and partially depends on change at the discursive level to increase commitment and reduce pockets of exclusion.

Analysis will be carried out as follows. Firstly, I will offer an interpretation of the concept of “gender” that draws on Foucault’s notion of discourse, Gramsci’s notion of hegemony, and Connell’s notion of hegemonic masculinity. Secondly, I will define gender based violence (GBV) in time of conflict and outline its path towards recognition as a matter of international concern. Thirdly, I will outline the opportunities for protection available to the international community under the Refugee Convention and under the R2P. Finally, I will make some recommendations.

Gender as a Social Structure

A short and powerful definition of “gender” has been advanced by Mahler and Pessar (2006), scholars in migration studies, in the context of their effort for the mainstreaming of gender as a legitimate object of study for migration scholarship. In their definition, gender is “the meaning that people give to the biological reality that there are two sexes” (Mahler and Pessar, 2006, p. 29). Gender refers to a social construction resulting from power dynamics between men and women and the effects of these dynamics on identity, social roles, responsibilities, and social status. Drawing from Foucault’s (1972) notion of “discursive formation” (or “discourse”), gender can be understood as a system of ideas, beliefs, utterances, and practices that systematically works to produce and reproduce the idea that two objects (men and women) are inherently different and, accordingly, should occupy different social positions. In Crawley’s words, gender refers to “the social organization of sexual difference” (Crawley, 2001, p. 7).

While Foucault’s notion of discourse is a rather useful theoretical lens to understand gender, Gramsci’s notion of hegemony can be more useful to understand how discourses about gender are produced, reproduced, and reshaped in a process that involves agency by all social actors involved (Fairclough, 1992, p. 56). Foucault tends to over emphasize the extent to which people are influenced by power, leaving little or no room for agency beyond the reproduction of existing structures. Gramsci portrays a much more unstable equilibrium that is highly dependent upon alliances between different groups and the production of consent from subordinate classes. This unstable equilibrium is the ground for constant struggle, where structures are constantly renegotiated (Fairclough, 1992, pp. 56-58).

Gramsci theorises hegemony as the power of a class over society as a whole. This dominance, however, is never fully achieved, and can only be maintained by forming alliances, making concessions, and most importantly developing ideological means to ensure the integration of subordinated classes into the hegemonic project (Fairclough, 1989, pp. 61-62). In other words, hegemony is the exercise of power through acquiescence rather than through coercion. A fundamental element in the exercise of power through hegemony is ideology. According to Gramsci, ideology is “a conception of the world” that is implicitly manifest in the ways in which people conduct themselves individually and collectively (Gramsci, 1971, as cited in Fairclough, 1989, p. 62). Ideology works to perpetrate hegemony by producing discourses that represent the world in a given way and by inculcating this discourses as ways of being (Fairclough, 1985, p. 28). Usually, ideological discourses manage to increase their currency and to undermine the validity of other discourses by presenting themselves as the natural order of things. If successful, ideological discourses are eventually picked up by subordinate actors that uncritically accept them as “common sense” (Gramsci, 1971).

Gramsci’s notions of hegemony and common sense have been picked up by Connell (1995) as the basis for the influential concept of “hegemonic masculinity”. Connell theorizes hegemonic masculinity as a system of beliefs that supports, reinforces, and legitimizes a patriarchal order of society that serves the interests of the dominant group (that is, cisgender men). Connell further argues that all members of society are to some extent complicit in the perpetuation of hegemonic masculinity. Among other ideologies, hegemonic masculinity produces normative ideas regarding what it means to be a man (and to be a woman) that are eventually internalized and reproduced by all members of society. One of the key insights of Connell is the realization that masculinity (like femininity) is not monolithic, but significantly fragmented. Different gendered identities arise from the intersection of gender with other social structures (such as class, ethnicity, sexuality, etc.).

Gender is, therefore, an ideological discursive formation (Fairclough, 1989) that is produced as the result of power dynamics between different masculine and feminine identities in any given society. Its underlying ideology is reproduced through discursive practices and according to the normative ideas produced by hegemonic masculinity. Through ideology, hegemonic masculinity is capable of spreading normative ideas regarding what is the appropriate way of being a man (or to be a woman). As these norms gain currency, those more closely adhering to them enjoy privilege, while those that do not or cannot conform are ostracized. For example, if the proper way of being a man is to be white, middle class, and heterosexual, other ways of being a man will be treated as deviant and therefore marginalized.

Gender Based Violence and its Troubled Way to Recognition

Despite the fact that there has hardly ever been a war with no GBV, gender issues in time of conflict have been remarkably absent from discussion until quite recently. For much of modern history, it was widely held that GBV during conflicts resulted from random incidents of frustration and violence caused by individuals. Even more problematically perhaps, GBV has been treated invariably as the violence of men on women, and as the violation of the property rights of a group of men by another group of men. In other words, perpetrating violence against women in time of war was not seen as a violation of the human rights of the women themselves, but rather as the violation of male property rights upon them. Furthermore, the possibility of men being objects of GBV was completely excluded from the discussion, and still today remains a particularly under-studied and under-regulated issue. Throughout the twentieth century, GBV has moved from almost complete irrelevance to full recognition as a human rights issue and eventually as a threat to international peace and security (Carpenter, 2006).

Gender based violence can be defined as “any harm that is perpetrated against a person’s will; that has a negative impact on the physical or psychological health, development and identity of the person, and that is the result of gendered power inequities that exploit distinctions between males and females, among males, and among females” (Ward, 2002, pp. 8-9). GBV is particularly likely to take place in time of conflict and in post-conflict environments. GBV can take many forms, including rape, slavery, forced impregnation/miscarriages, kidnapping/trafficking, forced nudity, and disease transmission, with rape and sexual abuse being among the most common (Manjoo and McRaith, 2011, p. 12).

One of the earliest steps towards recognition of GBV as a matter of concern came in 1863, when the Lieber Code (a U.S. code of conduct for the treatment of enemy civilians and prisoners of war) made rape a capital offense. Later, The Hague Convention of 1907 coded GBV as “violations of family honor and rights”. Explicit condemnation of GBV was achieved with Article 27 of the Fourth Geneva Convention, was restated in Article 76 of the First Geneva Protocol directed to the victims of international war, and was extended to the victims of non-international conflicts with the Second Geneva Protocol of 1977. Further commitment to eliminate GBV in time of conflict came with the 1979 Convention on the Elimination of All Forms of Discrimination against Women, which includes several articles relating to the issue (Manjoo and McRaith, 2011).

Despite the existence of international laws and norms condemning wartime GBV, implementation has been patchy at best. In the aftermath of World War II, the trials of Nuremberg did not prosecute any case of GBV. Remarkably, the mass rape committed by the Red Army following the capture of Berlin went literally unspoken until very recently. The analogous trials in Tokyo only marginally engaged with GBV, treating these cases as a marginal category under the broad umbrella of crimes against humanity. More recently, mass rape, forced prostitution, and other forms of GBV went almost unspoken and unpunished in most conflicts, including very prominent ones such as the Vietnam War, the Pakistani secessionist war with India, and the First Gulf War (Saha, 2009, p. 505-7).

The turning point came in 1998, with the decision of the International Criminal Tribunal for Rwanda to condemn to life imprisonment Jean-Paul Akayesu for encouraging and facilitating mass rape operated during the 1994 Genocide. The decision recognized that rape can be perpetrated with the purpose of intimidation, degradation, humiliation, discrimination, punishment, control or destruction of the person, and thus is a serious war crime. Furthermore, rape was recognized as falling under the definition of torture in those cases when it is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. The decision also acknowledged that rape can be used as an instrument of genocide when it is accomplished with the intent to physically or psychologically destroy a group (Saha, 2009, pp. 505-9; Manjoo and McRaith, 2011).

After the 1998 Akayesu decision, attention to gender issues in conflict scenarios and beyond increased dramatically, followed by a proliferation of legal and policy instruments for the protection of individuals from such crimes. In 2000, Security Council Resolution 1325 on Women, Peace and Security emphasized “the responsibility of all States to put an end to impunity and to prosecute those responsible for genocide, crimes against humanity, and war crimes including those relating to sexual and other violence against women and girls”. Entering into force in 2002, the Rome Statute of the ICC codes wartime rape as a crime of war. In 2008, Security Council Resolution 1820 recognized GBV as a threat to international peace and security. Subsequently, Security Council Resolution 1888 (2009) called for the appointment of a Special Rapporteur on sexual violence and for more concrete efforts for monitoring and reporting of GBV in time of conflict.

Offering Protection: Asylum and R2P

In this section, I wish to argue that the international community has two possibilities in which to offer protection to victims of GBV, this is dependent on their physical location with respect to the border of their country of origin. For people outside their country of origin, the international community can and should offer protection through a gendered interpretation of the 1951 Refugee Convention. For people still within the borders of their country of origin, the international community can and should offer protection through the implementation of the Responsibility to Protect, when a host state manifestly fails to offer protection. Both instruments are limited for a wide array of reasons, but nonetheless encompass a strong mandate across and within national borders.

The 1951 Refugee Convention can be a powerful tool of international law to offer protection to people facing persecution based on their socially constructed gender role. The efficiency of the Convention in offering protection to potential victims of GBV is, however, limited by the absence of “gender” among the protected grounds (race, religion, nationality, political opinion, and membership of a particular social group). Lacking a specific provision for GBV, it has been the strategy of the UNHCR to treat gender as a “particular social group” (PSG). Offering protection under PSG is, however, rather problematic. Neither the Convention nor its 1968 Protocol provide a univocal definition of PSG. Asylum applications based on the particular social group ground are often viewed with diffidence. States perceive it as the key to the “floodgates” of undesired refugee flows. Claims based on particular social group have very low success rates, and is usually treated as the very last resort for asylum claimants. Amorphous in nature, PSG has always been the object of very restrictive and inconsistent interpretations across and within jurisdictions, making it a very risky option for asylum seekers (Prochazka, 2012, p. 446; Cianciarulo et al., 2012, pp. 142-3).

Despite the fact that gender based persecution has been a policy priority in the agenda of the UNHCR for more than twenty years, implementation has faced several obstacles. Arguably, this is the product of three factors. First, the discourse on gender-based asylum claims has come to the fore during a period in which Western attitude towards migratory flows is not as friendly as it used to be in the early Cold War years. In some cases, expansion of protection conflicts with other priorities of receiving states. Secondly, the large bureaucratic structure of the UNHCR itself can be viewed as a sort of obstacle. As in many other bureaucratic agencies, policy implementation is often slow, and policy priorities do not always penetrate evenly through the various branches. Thirdly, it is worth considering that the UNCHR heavily depends on the financing of donor states, with the EU and EU Members providing almost half of its resources. While these states have declared their commitment to the defence of human rights, evidence shows that their asylum policies are becoming more and more restrictive. Thus, the UN agency is in the uncomfortable position of having to promote policy priorities that might or might not coincide with the political interest of its main sponsors (Freedman, 2010a, 2010b).

Finally, the greatest limitation of the Refugee Convention is probably its limited focus on international migrants. Despite its quite advanced outlook, the Refugee Convention was drafted in 1951, and is invariably a product of its time and context. Despite the fact that liberalism was on the rise in international relations, state sovereignty was still an almost untouchable concept, at least for what concerns the administration of domestic matters (Gibney and Loescher, 2010).

In the post-Cold War scenario, increasing attention has been given to the need to redefine State sovereignty to include not only rights but also duties. This trend is significantly changing international relations in some unprecedented ways. In this context, one of the most relevant developing trends is the growing consensus in the international community around the emerging norm of the Responsibility to Protect (R2P). Formulated for the first time in 2001, R2P was adopted unanimously by the international community at the 2005 UN World Summit. The concept of R2P stands on three pillars, respectively stating that (1) states have a responsibility to protect their own population from genocide, crimes against humanity, war crimes, and ethnic cleansing; (2) that the international community has a duty to assist states in performing their primary duty to offer basic security; and (3) that the international community has a duty to use appropriate peaceful or non-peaceful means, with the authorization of the UNSC, in order to stop states who are manifestly failing to protect their own populations from ongoing atrocities.

Probably the most interesting characteristic of the R2P is its implications for state sovereignty. Ever since its formulation by early social contract theorists, sovereignty derives its legitimacy from the people who choose to alienate part of their freedom in favour of a sovereign that in turn is charged with some duties, the most important of which is the provision of security. Ever since the peace of Westphalia (1648), where modern nation-states made their first appearance, the security function of the sovereign has been mostly interpreted as limited to external security, with little or no attention to the treatment of domestic residents (Deng et al., 1996).

Arguably, the R2P is a norm that aims at re-establishing the original meaning of sovereignty in terms of responsibility within the framework of social contract theory (Deng et al., 1996). This is indeed the key assumption laying behind its first pillar that aims at making any sovereign liable for neglecting its most basic functions. Similarly, the second pillar of R2P is grounded on the assumption that states who fail in performing their basic duties can call upon the international community to assist them. Finally, the third pillar of R2P wants to reinforce the idea that, in light of the nexus between sovereignty and responsibility, international interventions to enforce or protect peace and security are indeed legitimate in those cases when the state is failing in providing basic guarantees or is itself the perpetrator of violence.

While the limitations to the mainstreaming of gender in asylum are to some extent due to the nature of the asylum system as envisioned by the Refugee Convention and the bureaucratic structure of the UNHCR, the limitations to the implementation of a gendered interpretation of R2P are mostly discursive. Since R2P refers to the duty to protect victims and prevent atrocity crimes, the recognition of GBV as a serious human rights violation automatically includes GBV into the framework of R2P. Limitations are therefore mostly tied to the way in which “gender” and “gender based violence” are conceptualized, translated into policy, defined in guidelines, and eventually implemented in daily practice. Schmeidl and Piza-Lopez (2002) authored one of the earliest works in this field, arguing that the mainstreaming of gender in conflict analysis and response (1) allows the detection of previously overlooked signs of instability; (2) prevents the perpetuation of discrimination in post-conflict scenarios; and (3) unlocks the untapped potential of women as agents of change in the peace process (Schmeidl and Piza-Lopez, 2002, p. 7). More recently, Bond and Sherret (2012) and Davis and Teitt (2012) argued for the creation of mutually reinforcing synergies between the Women, Peace, and Security agenda and R2P. Sara Davis further engaged in her advocacy effort, and in a recent paper explicitly encouraged the Office of the UN Secretary-General’s Special Adviser on the Prevention of Genocide and the Special Adviser for the Responsibility to Protect (OSAPG) to address the role of gender inequality and gendered violence in their early warning framework (Davies, Teitt, and Nwokora, 2015, p. 245).


Gender is a social construction that is produced, reproduced, and maintained through normative ideas regarding what is the appropriate way of being a man or being a woman. People can be targets of violence because of their socially constructed categorization, and this includes gendered categorizations. Gender based violence is therefore violence targeted at both men and women because of their gender. Gender based violence has been disregarded for much of human history, and only entered the agenda of the international community after World War II, finally achieving full commitment in the late 1990s. Yet despite this, the international community has still been unable to fully implement adequate protection and prevention strategies to tackle gender based crimes. Any attempt to achieve this in the future is arguably dependent on the efficiency of the actors involved in filling “gaps” between the actual and the intended effects of their actions, between their intended impact and their policy commitment, and between their policies on paper and their discursive commitments. Finally, full and efficient protection requires change at the discursive level to disrupt the notion that gender equates with women and recognize men’s issues as equally relevant. In this respect, integrating gender in the refugee and R2P agendas would allow for better early warning, enhanced protection across and within borders, and increasingly inclusive peace processes that engage all interested actors regardless of gender.

References cited

Bond, J., and Sherret, L. (2012). Mapping gender and the Responsibility to Protect: seeking intersections, finding parallels. Global Responsibility to Protect. 4(2). p. 133-153.

Carpenter, R.C. (2006) Recognizing gender-based violence against civilian men and boys in conflict situations. Security Dialogue. 37 (1). p. 83-103.

Cianciarulo, M., David, C. and Silenzi Cianciarulo, M. (2009) Pulling the trigger: Separation violence as a basis for refugee protection for battered women. American University Law Review. 59 (2). p. 337-384.

Connell, R.W. (1995) Masculinities. Cambridge, UK: Polity Press.

Crawley, H. (2001) Refugees and Gender: Law and Process. Bristol, UK: Jordan Publishing Limited.

Davies, S. E., and Teitt, S. (2012) Engendering the Responsibility to Protect: women and the prevention of mass atrocities. Global Responsibility to Protect. 4(2). p. 198-222.

Davies, S. E., Teitt, S., and Nwokora, Z. (2015) Bridging the gap: Early warning, gender and the responsibility to protect. Cooperation and Conflict. 50(2). p. 228-249.

Deng, F.M., et al. (1996) Sovereignty as Responsibility: Conflict Management in Africa. Washington, DC: Brookings Institution Press.

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Fairclough, N. (1989) “language and ideology”. p. 56-68 in Fairclough, N. (ed.) (2010) Critical Discourse Analysis: The Critical Study of Language. (2nd ed.), Harlow, UK: Longman.

Fairclough, N. (1992) Discourse and Social Change. Cambridge, UK: Polity press.

Foucault, M. (1972) The Archaeology of Knowledge, New York, NY: Pantheon Books.

Freedman, J. (2010a) Mainstreaming gender in refugee protection. Cambridge Review of International Affairs. 23 (4). p. 589-607.

Freedman, J. (2010b) Protecting women asylum seekers and refugees: From international norms to national protection? International Migration. 48 (1). p. 175-198.

Gibney, M., and Loescher, G. (2010) Global Refugee Crisis: A Reference Handbook. Santa Barbara, CA: ABC-CLIO.

Gramsci, A. (1971) Selection from the Prison Notebooks, New York, NY: International Publishers.

Mahler, S.J. and Pessar, P.R. (2006) Gender matters: Ethnographers bring gender from the periphery to the core of Migration Studies. International Migration Review. 40 (1). p. 27-63.

Manjoo, R., and McRaith, C. (2011) Gender-based violence and justice in conflict and post-conflict areas. Cornell International Law Journal. 44. p. 11-31.

Prochazka, S. J. (2012) There is no honor in honor killings: Why women at risk for defying sociosexual norms should be considered a “particular social group” under asylum law. Thomas Jefferson Law review Journal. 34 (2). p. 445-503.

Saha, A. (2009) Rape as a war crime: The position of international law since World War II. Journal of East Asian and International Law. 2 (2). p. 497-516.

Schmeidl, S., and Piza-Lopez, E. (2002) Gender and conflict early warning: a framework for action. London: International Alert.

Ward, J. (2002) If Not Now, When? Addressing Gender-based Violence in Refugee, Internally Displaced and Post-conflict Settings. New York, NY: RHRC Consortium.

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