This post by Dr Catherine O’Rourke, PSRP researcher from the Transitional Justice Institute (TJI) University of Ulster, was first published by IntLawGrrls on 27 February 2017. It addresses the integration of proliferating normative and legal activity to advance women’s rights in conflict under international law.

One of the most significant contemporary developments in international law and its application to the lives of women is the political prominence and proliferating legal development concerning women’s rights in conflict. Against the backdrop of extensive normative and legal activity on this theme across multiple regimes of international law, legitimate questions are being asked as to the efficacy of this norm proliferation. In my new Working Paper for the Political Settlements Research Programme, I consider the local significance of the recent Report on Northern Ireland by the UN Special Rapporteur on the Promotion of Truth, Justice, Reparations and Guarantees of Non-recurrence (informally known as the Special Rapporteur on Transitional Justice). I conclude very positively about the Report’s genuine integration of gender concerns throughout and its potential impact on state and civil society proposals to deal with the past. More negatively, however, I conclude with some concern about the Report’s treatment of UN Security Council Resolution 1325 on Women, Peace and Security and its application to Northern Ireland. In this post, I identify the problem with how the Report addresses the Resolution’s application. I further address the wider significance of this error for broader efforts to improve the integration of proliferating normative and legal activity to advance women’s rights in conflict under international law.

The recent – otherwise very good – Report of the Special Rapporteur includes a rather unhelpful aside regarding the applicability of the UN Security Council Resolution 1325 (2000) on Women, Peace and Security to Northern Ireland:

Given the State’s ambiguity with regard to the classification of the Troubles, Security Council resolution 1325 (2000) and related policy recommendations cannot be applied to Northern Ireland. (para 36)

Throughout the three decades of low-level violent conflict in Northern Ireland, the UK made several attempts to evade scrutiny of its conduct of the conflict under international law. This was principally achieved through derogations to certain obligations under the European Convention on Human Rights and delaying ratification of the Optional Protocol to the International Covenant on Civil and Political Rights and Additional Protocol 2 to the Geneva Conventions. Since the conflict ended conclusively with the Good Friday Agreement of 1998, ongoing political disputes over the legal status of the conflict have continued, manifesting quite prominently in the UK’s refusal to acknowledge the application of Resolution 1325 to Northern Ireland. Regrettably, in his Report, the Special Rapporteur opted to validate the state’s position.

It is significant, of course, that the Special Rapporteur did not need to determine Resolution 1325 to be applicable to Northern Ireland in order to nevertheless identify the gendered deficiencies of transitional justice. This is a positive story in terms of the Special Rapporteur’s mainstreaming of gender throughout his mandate. Nevertheless, the determination by the Special Rapporteur that Resolution 1325 does not apply is unhelpful – both locally and globally – for a number of reasons. Firstly, in global terms, the text of the resolution and its successors are clear that the implementation of the Women, Peace and Security agenda does not imply any determination about conflict thresholds or the application of international humanitarian law (IHL). While some provisions prevail exclusively in contexts in which IHL applies, the bulk of provisions involve no such prerequisite. The Special Rapporteur has unhelpfully conflated application of IHL and the application of the Women, Peace and Security resolutions. Secondly, in the specific context of Northern Ireland, the Special Rapporteur’s position is expressly contrary to the position adopted by the CEDAW Committee. In the two most recent periodic examinations of the UK, the CEDAW Committee has challenged the government on its failure to implement the resolution in Northern Ireland and has made recommendations in this regard in the Concluding Observations. Indeed, in its response to the Committee, even the UK government representative acknowledged that elements of the Resolution 1325 – such as the participation of women in foreign relations – apply to all UN member states. On the whole, therefore, the Special Rapporteur has made an unfortunate misstatement of the legal and normative obligations attendant to Resolution 1325.

The Special Procedures of the Human Rights Council play an important role in both addressing contemporary thematic and country-specific challenges in human rights. They also, however, play an important role in the integration of normative and legal activity on human rights across the UN and regional human rights systems. The unique status of the Special Rapporteurs as independent experts, combined with their practical problem-based approach to human rights challenges, makes them particularly well-placed to advance the necessary integration. The Special Rapporteur’s Report on Northern Ireland is in many ways a positive example of this role, in particular in the sincerity with which the Report discharges the mandate to ‘integrate a gender perspective throughout’. Nevertheless, the Report narrowly re-interprets the application of Resolution 1325, in a manner contrary to the express and repeated position of the CEDAW Committee. It is important that the Special Rapporteur take the opportunity to correct this misstatement in future thematic and country reporting.

About the Author:  Dr Catherine O’Rourke coordinates the PSRP Gender Research Theme. She is a Senior Lecturer in the School of Law and Gender Research Coordinator at the Transitional Justice Institute. She researches, teaches and engages in policy work in the fields of gender, conflict, transitional justice and international law.

Photo: Aria Formula meeting between the CEDAW Committee and the UN Security Council on the rights of women in conflict by Catherine O’Rourke