The Army Lawyer | Issue 4 2021View PDF
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A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.1

Imagine, as a judge advocate (JA), you are assigned to a world-renowned institute as a teaching fellow. In your first few days, an expert, while physically holding his work in his hands on “Integrating Gender Perspectives into International Operations,”2 asks you to use a U.S. lens to discuss gender-based violence (GBV)3 and gender perspectives for an upcoming course. You respond that you will need time to review some resources.4 You frantically scour the standard JA materials, but you are unable to quickly ascertain an understanding of GBV. Now that you are aware that your standard references do not contain an outline of GBV, how do you respond? How do you prepare your course?5

The answer to this hypothetical is complex. The answer is not simply within a regulation or publication; it is more dynamic than a rudimentary understanding of gender rights. Gender-based violence is an umbrella term that includes sexual assault and harassment. Thus, the topic demands a nuanced grasp of international human rights law (IHRL) and international humanitarian law (IHL),6 an appreciation of the political considerations embodied in gender rights, and a general understanding of military initiatives aimed at preventing GBV. The complexities distil to one word: readiness.

In his 2016 guidance, the Army Chief of Staff defined readiness as the “ability to fight and win our Nation’s wars.”7 Judge advocates achieve readiness by being competent. Competence8 is our lethality, and it “requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”9 Achieving competence may take time, as competence encompasses anticipating and preventing legal problems.

Although GBV may not be in your daily vernacular, reviewing world and military GBV statistics may change that. “[A]bout 1 in 3 (30%) of women worldwide have experienced either physical and/or sexual intimate partner violence or non-partner sexual violence in their lifetime”;10 and, in 2018, the U.S. military reported “an estimated 24.2 [%] of active duty women and an estimated 6.3 [%] of active duty men indicated experiencing sexual harassment.”11 As the statistics12 highlight the pervasive nature of GBV, JAs should have a reference tool that both provides a brief summation of GBV and, in certain places, correlates the international underpinnings of GBV to military practice. Simply put, this GBV summation seeks to complement your commonly referenced materials.

What Is GBV?

The United Nations High Commissioner for Refugees (UNHCR) defines GBV as “violence that is directed against a person on the basis of gender or sex including acts that inflict physical, mental, or sexual harm or suffering, threats of such acts, coercion and other deprivation of liberty”13—such as cruel and degrading treatment, sexual harassment, and physical assault. The U.S. Department of State defines GBV as “any harmful threat or act directed at an individual or group based on actual or perceived biological sex, gender identity and/or expression, sexual orientation, and/or lack of adherence to varying socially constructed norms around masculinity and femininity. It is rooted in structural gender inequalities, patriarchy, and power imbalances.”14 Some examples of this include intimidation at work and community practices, like honor killings. Integrated in GBV is violence, which is defined as “[t]he intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment, or deprivation”15—for instance, forms of neglect. Gender-based violence is predicated on violence and inequality—the unequal power relationship between men and women.

As an “umbrella term,” GBV describes “any harmful act that is perpetrated against a person’s will and that is based on socially ascribed (i.e. gender, race and ethnicity, etc.) differences between males and females”16—the gender pay gap or the lack of access to education, for example. Crimes involving GBV may not include sexual violence; however, GBV and sexual and gender-based violence (SGBV) are often used interchangeably;17 and, as the majority of GBV victims are women, violence against then is often interchangeable with GBV.18 The UNHCR’s use of SGBV is “to emphasize the urgency of protection interventions that address the criminal character and disruptive consequences of sexual violence for victims/survivors and their families.”19 Gender-based violence as an umbrella term is translatable in the military.

Although the Uniform Code of Military Justice (UCMJ) does not specify GBV as a crime, the UCMJ punishes a number of criminal acts commonly associated with GBV. Those may include charging sexual harassment20 or sexual assault.21 In an operational environment, finding translatable phrases to describe the underlying criminal conduct may present a challenge. Gender-based violence may be the common vernacular in an operational setting, which normally has an international component.

Although each State has its own penal code, partners may reference the underlying misconduct as GBV when referencing criminal conduct internally or externally to their respective government. This reality is due to an increase of GBV in areas of international and non-international armed conflict. Such violence—perpetrated by military actors—against combatants and non-combatants (primarily women) residing in those areas or working alongside militaries—can arise.22 That violence may include “torture, sexual violence and forced marriage.”23 However, the concept of “mainstreaming” may combat GBV.

Types of GBV and Mainstreaming

Although GBV and its types vary, women victims remain the majority.24 Although there is more than one definition, it is helpful to review a violence against women definition to identify the diverse types of GBV. As an example, the Beijing Declaration and Platform for Action defines “violence against women” as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.”25 The types described in this definition are not an exhaustive list.26 Addressing the idiosyncrasies of each type of GBV is a challenge; however, there is a common methodology used to grapple with GBV. Instead of aiming policies targeted at the diverse types, the international community and a variety of States implement the method of “mainstreaming”—a strategic initiative aiming at long-term structural changes.

Mainstreaming is a methodology that serves to combat GBV by identifying that gender plays a crucial part in a political economy.27 It is a method sensitive to gender roles within a socio-political analysis that aims for equality.28 It “involves ensuring that gender perspectives and attention to the goal of gender equality are central to all activities—policy development, research, advocacy/dialogue, legislation, resource allocation, and planning, implementation and monitoring of programmes and projects.”29 Although this is one method, it is globally accepted and employed in a variety of different sectors from education to the military.

In the U.S. military, which aims to eradicate GBV in the ranks, mainstreaming is affected by a whole government action approach; examples of this include the recent programs, policies, and amendments implemented to the UCMJ. Amending the procedures and policies of reporting sexual assault and harassment and changing the UCMJ are just two examples of attempts to eradicate types of GBV in the military. There are other examples. The National Center on Domestic and Sexual Violence (NCDSV) comprises a number of military policies aimed at reducing GBV.30 These attempts primarily focus on efforts to rid GBV from the ranks, but such efforts are translatable to an operational setting. Operationally, although not explicitly highlighted, each U.S. legal brief on the law of war describes GBV as a crime, even if GBV is not discussed directly. That is because GBV is predicated on the breach of the targeting principles of military necessity and distinction. Such violations of IHL can be war crimes and violate IHRL.

GBV: IHRL, IHL, and U.S. Policies

The United Nations (U.N.) defines human rights as “rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status.”31 Rights include “the right to life and liberty [and] freedom from slavery and torture.”32 International Human Rights Law protects these rights.33 Although IHRL was slow to identify GBV as a human right violation, the U.N. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),34 also known as the Global Bill of Rights for Women, captured the global push to eradicate discrimination and helped to ensure women’s rights were encompassed in human rights. This was clearer when CEDAW General Recommendation No. 19, as adopted by the CEDAW committee, framed violence against women as a form and manifestation of gender-based discrimination.35 The General Recommendation No. 19 also identifies risk to those women living in areas of ongoing armed conflicts.36

Areas of IHL also address the issue of sexual vulnerability of women in war. Most notably, Additional Protocol I to the Geneva Conventions states, “Women shall be the object of special respect.”37 More recently, U.N. Security Council Resolution (UNSCR) 1325 recognized “the need to implement fully international humanitarian and human rights law that protects the rights of women and girls during and after conflicts.”38 In 2009, the U.N. appointed a Special Representative of the Secretary-General on Sexual Violence in Conflict.39 The Special Representative has increased awareness of GBV.40

If the U.N.’s mission is to strive for peace, it is NATO’s job to prepare for war. Nevertheless, NATO recognizes the link between IHRL protections and war-making effectiveness and is implementing policy initiatives to combat GBV. For example, NATO is incorporating UNSCR 1325 into core tasks of collective defense, crisis management, and cooperative security.41 NATO continues to promote gender equality as a means of combating GBV. Those charged with its implementation are the NATO-appointed Gender Advisors,42 something the U.S. military has also adopted43 as it continues to implement UNSCR 1325.

The UNSCR 1325 is a seed; and, although its growth may not be readily recognizable and its effect may not felt on the daily life of a JA just yet, America’s gender perspective is growing. Domestically, the United States has worked diligently at inserting gender perspectives into its national action plan. In 2011, then-President Barack Obama announced a national action plan on women, peace, and security.44 Other national efforts as seen through The Women, Peace, and Security Act of 201745 and the new presidential guidance,46 have paved the way for the Department of Defense to launch its framework and implementation plan for women, peace, and security.47 The same complexities of GBV definitions are in the solutions, as it takes a number of different initiatives with different approach angles to address the dynamic and murky world of GBV. As seen through the fruits that have fallen on a daily life of a JA, procedural and substantive changes continue to occur. Recently, for example, the Army Command Policy has nested discriminatory harassment within the Army Harassment Prevention and Response Program, as well as the Military Equal Opportunity Policy and Program.48

Conclusion

Discussing GBV, with a U.S. lens and within an international environment, is complex. Any person who attempts to provide answers within the complexity might be exasperated when analytical and thoughtful policies aimed at eradicating GBV, either internally or externally, are viewed in the media49 or defined in a response.50 The center of these stories, as examples, focuses on GBV; more specifically, it focuses on violence by male military members against women (who may be in the military themselves, or non-combatant civilians). As a result, as an umbrella term, GBV receives attention both internationally and nationally. Indicative of that attention is the JA’s responsibility to anticipate and prevent GBV-related problems, highlighting the readiness requirement to train GBV, as well as JAs’ responsibility in helping commanders implement new plans and regulatory updates. This GBV summation serves JAs as a reference tool to help maintain their lethality by developing their competency in a dynamic area of the law. TAL


MAJ Facaros is the Group Judge Advocate for the 3d Special Forces Group (A) at Fort Bragg, North Carolina.


Notes

1. U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Lawyers r. 1.1 (28 June 2018) [hereinafter AR 27-26].

2. Integrating Gender Perspectives into International Operations, A Training Handbook with Commentaries (Gabriella Venturini ed., 2019).

3. The aim of this article is to provide an overview of gender-based violence (GBV) that may be relatable and helpful to judge advocates. The reader may also benefit from a general understanding of GBV in a broader context. See Jocelyn Frye et al., Transforming the Culture of Power: An Examination of Gender-Based Violence in the United States, Ctr. for Am. Progress (Oct. 31, 2019, 9:01 AM) https://www.americanprogress.org/issues/women/reports/2019/10/31/476588/transforming-culture-power/.

4. Some references of importance, and briefly discussed in this article, include the Department of Defense (DoD) plan toward integrating gender perspectives. See U.S. Dep’t of Def., Women, Peace, and Security Strategic Framework and Implementation Plan (2020). Relevant to this article is its third objective for “partner national defense and security sectors ensure women and girls are safe and secure and that their human rights are protected, especially during conflict and crisis.” Id. at 14. Additionally, the reader might find the source document for the DoD’s plan useful. See S.C. Res. 1325 (Oct. 31, 2000). Last, recent updates to Army Regulation 600-20 provided further aims at integrating gender perspectives within the military. Integrating gender perspectives is predicated on the requirement that commanders must now train to prevent discriminatory harassment, which was recently added to the Army Harassment Prevention and Response Program and the Military Equal Opportunity Policy and Program. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy paras. 4-19a(3), 6-6b (24 July 2020) [hereinafter AR 600-20]. Discriminatory harassment is “a form of harassment that is unwelcome conduct based on race, color, religion, sex (including gender identity), national origin, or sexual orientation.” Id. para. 4-19a(3).

5. Advice, in this context, is broader than what is thought of when discussing it in the context of Trial Defense Service or Legal Assistance work. To advise, in this context, is to be able to speak on a topic in an eloquent and meaningful way that both highlights the value of having trained legal officers within the ranks and the ability to capture the breadth of an internationally recognized principle.

6. The United States refers to International Humanitarian Law (IHL) as the Law of Armed Conflict (LOAC).

7. Memorandum from Chief of Staff, U.S. Army, to All Army Leaders, subject: Army Readiness Guidance, Calendar Year 2016–17 (20 Jan. 2016).

8. Competence is the core tenant of fulling the Judge Advocate General’s Corps’s mission of providing principled counsel. Principled Counsel is “professional advice on law and policy grounded in the Army Ethic and enduring respect for the Rule of Law, effectively communicated with appropriate candor and moral courage, that influences informed decisions.” Colonel Russell N. Parson & Lieutenant Colonel Patrick L. Bryan, Navigation from the Leadership Center, Army Law., no. 6, 2019, at 9.

9. AR 27-26, supra note 1, r. 1.1.

10. Violence Against Women, WHO (Mar. 9, 2021), https://www.who.int/en/news-room/fact-sheets/detail/violence-against-women.

11. U.S. Dep’t of Def., Sexual Assault Prevention and Response Office, Department of Defense Annual Report on Sexual Assault in the Military: Fiscal Year 2019, at 11 (2020).

12. For more statistics, see Facts and Figures: Ending Violence Against Women, UN Women, https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures#notes (Mar. 2021) (some national studies show that up to 70 % of women have experienced physical and/or sexual violence from an intimate partner in their lifetime). See also Matthew J. Breiding et al., Intimate Partner Violence Surveillance: Uniform Definitions and Recommended Data Elements 1 (2015), https://www.cdc.gov/violenceprevention/pdf/ipv/intimatepartnerviolence.pdf (in the United States, over 1 in 5 women (22.3%) and nearly 1 in 7 men (14.0%) have experienced severe physical violence by an intimate partner at some point in their lifetime).

13. U.N. Refugee Agency, Handbook for the Protection of Internally Displaced Persons 168 (2010), https://www.unhcr.org/4c2355229.pdf (citation omitted). See also U.N. Comm. on the Elimination of Discrimination Against Women, General Recommendation 19: Violence Against Women, U.N. Doc. A/47/38 (Jan. 29, 1992) (isolating its definition to violence against women).

14. Bureau of Population, Refugees, and Migration, U.S. Dep’t of State, Gender and Gender-Based Violence, U.S. Dep’t of State, https://www.state.gov/other-policy-issues/gender-and-gender-based-violence/#ftn1, n.1 (last visited June 21, 2021). See also U.S. Agency Int’l Dev., Gender-Based Violence and HIV: A Program Guide for Integrating Gender-Based Violence Prevention and Response in PEPFAR Programs 7 (2011), https://ovcsupport.org/wp-content/uploads/Documents/GenderBased_Violence_and_HIV_A_Program_Guide_for_Integrating_GenderBased_Violence_Prevention_and_Response_in_PEPFAR_Programs_1.pdf.

15. WHO, World Report on Violence and Health 5 (Etienne Krug et al. eds. 2002).

16. Jeanne Ward et al., Inter-Agency Standing Comm., Guidelines For Integrating Gender-Based Violence Interventions in Humanitarian Action: Reducing Risk, Promoting Resilience and Aiding Recovery 5 (2015), https://interagencystandingcommittee.org/system/files/2021-03/IASC%20Guidelines%20for%20Integrating%20Gender-Based%20Violence%20Interventions%20in%20Humanitarian%20Action%2C%202015.pdf.

17. U.N. High Comm’r for Refugees, Action Against Sexual and Gender-Based Violence: An Updated Strategy 6 n.1 (2011), https://www.unhcr.org/4e1d5aba9.pdf.

18. What is Gender-Based Violence?, Eur. Inst. for Gender Equal., https://eige.europa.eu/gender-based-violence/what-is-gender-based-violence (last visited July 19, 2021).

19. U.N. High Comm’r for Refugees, supra note 17, at 6 n.1.

20. E.g., UCMJ arts. 92–93 (1950).

21. UCMJ art. 120 (2017).

22. Women’s Human Rights and Gender-Related Concerns in Situations of Conflict and Instability, U.N. Hum. Rts. Off. of the High Comm’r, https://www.ohchr.org/EN/Issues/Women/WRGS/Pages/PeaceAndSecurity.aspx (last visited July 21, 2021).

23. Id.

24. It should be noted that individuals whose sex at birth does not match their gender identify are also at risk of GBV. The Lesbian, Gay, Bisexual, and Transgender (LBGT) population face a high number of GBV incidents globally. See Saurav Jung Thapa, Gender-Based Violence: Lesbian and Transgender Women Face the Highest Risk but Get the Least Attention, World Bank Blogs (Nov. 27, 2015), https://blogs.worldbank.org/voices/gender-based-violence-lesbian-and-transgender-women-face-highest-risk-get-least-attention.

25. Fourth World Conference on Women, Report of the Fourth World Conference on Women, ¶ ١١٣, U.N. Doc. A/CONF.١٧٧/٢٠/Rev.١ (Sept. 4–15, 1995).

26. There are varying definitions of GBV. On one end of the spectrum, definitions aim to isolate violence against women; the other end of the spectrum focuses on the broader term of violence. See Gender-Based Violence, U.N. Population Fund, https://www.unfpa.org/gender-based-violence (last visited July 19, 2021); WHO, supra note 15.

27. See generally Off. of the Special Advisor on Gender Issues and Advancement of Women, U.N., Gender Mainstreaming: An Overview (2002), https://www.un.org/womenwatch/osagi/pdf/e65237.pdf.

28. See Gender Mainstreaming, UN Women, https://www.un.org/womenwatch/osagi/gendermainstreaming.htm (last visited July 19, 2021). See also Economic and Social Council Res. 1997/2 (July 18, 1997) (“Mainstreaming a gender perspective is the process of assessing the implications for women and men of any planned action, including legislation, policies, or programmes, in all areas and at all levels. It is a strategy for making women’s as well as men’s concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic, and social spheres so that women and men benefit equally, and inequality is not perpetuated.”).

29. See Gender Mainstreaming, supra note 28.

30. See generally Statistics/Research, Nat’l Ctr. on Domestic & Sexual Violence, http://www.ncdsv.org/ncd_military_statresearch.html (Feb. 16, 2018, 9:56 PM). See also The Military’s Response to Domestic and Sexual Violence, Battered Women’s Just. Project (Jan. 2014), https://www.bwjp.org/resource-center/resource-results/the-military-s-response-to-domestic-and-sexual-violence.html.

31. Human Rights, U.N., https://www.un.org/en/global-issues/human-rights (last visited July 19, 2021).

32. Id.

33. Id.

34. See Convention on the Elimination of All Forms of Discrimination Against Women, arts. 2, 5–6, Dec. 18, 1979, 1249 U.N.T.S. 13, 19 I.L.M. 33 (entered into force Sept. 3, 1981) (often referred to as the “Global Bill of Rights for Women,” CEDAW was the first legally-binding international treaty aimed at eradicating gender discrimination and served to place the female half of humanity into the focus of human rights).

35. U.N. Comm. on the Elimination of Discrimination Against Women, General Recommendation 19: Violence Against Women, U.N. Doc. A/47/38 (Jan. 29, 1992).

36. Id. ¶ 16.

37. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 76(1), June 8, 1977, 1125 U.N.T.S. 3.

38. S.C. Res. 1325, pmbl. (Oct. 31, 2000).

39. S.C. Res. 1888, ¶ 4 (Sept. 30, 2009).

40. See generally Yakin Ertürk (Special Rapporteur on Violence Against Women), 15 Years of the United Nations Special Rapporteur on Violence Against Women, Its Causes and Consequences (2009), https://www.ohchr.org/Documents/Issues/Women/15YearReviewofVAWMandate.pdf.

41. See Off. of NATO Sec’y Gen.’s Special Rep. for Women, Peace & Sec., NATO/EAPC Women, Peace, and Security: Policy and Action Plan 2018 (2018), https://www.nato.int/nato_static_fl2014/assets/pdf/pdf_2018_09/20180920_180920-WPS-Action-Plan-2018.pdf [hereinafter Women, Peace, and Security]. See also North Atlantic Treaty Organization, Bi-Strategic Command Directive 040-001: Integrating UNSCR 1325 And Gender Perspective into the NATO Command Structure (Oct. 17, 2017), https://www.act.nato.int/images/stories/structure/genderadvisor/nu0761.pdf.

42. See Women, Peace, and Security, supra note 41. The reader might be interested in a deeper understanding of a Gender Advisor in NATO. See Lieutenant Colonel Keirsten H. Kennedy, Gender Advisors in NATO: Should The U.S. Military Follow Suit?, 224 Mil. L. Rev. 1052 (2016).

43. Olivia Holt-Ivry, Mind The Gender Capability Gap, Def. One (July 3, 2018), https://www.defenseone.com/ideas/2018/07/gender-capability-gap/149477/.

44. Exec. Order. No. 13,595, 76 Fed. Reg. 80,205 (Dec. 19, 2011) (instituting a National Plan on Women, Peace, and Security).

45. The Women, Peace, and Security Act of 2017, Pub. L. No. 115-68, 131 Stat. 1202.

46. Donald J. Trump, U.S. President, United States Strategy on Women, Peace, and Security (2019), https://trumpwhitehouse.archives.gov/wp-content/uploads/2019/06/WPS_Strategy_10_October2019.pdf.

47. U.S. Dep’t of Def., Women, Peace, and Security Strategic Framework and Implementation Plan (June 2020).

48. AR 600-20, supra note 4, paras. 4-19a(3), 6-6b.

49. See Acacia Coronado, Army Secretary: Fort Hood Has High Rates of Murder, Assault, NBCDFW, https://www.nbcdfw.com/news/local/texas-news/army-secretary-to-speak-from-fort-hood-thursday/2421121/ (Aug. 6, 2020, 10:58 PM).

50. Remarks on the Situation in Iraq, 2014 Daily Comp. Pres. Doc. 00602 (Aug. 7, 2014).

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