The 1949 Geneva Convention Knew What A 'Woman' Is. But How Could They Tell?
Sex-based rights, reality, and 'gender'
Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men. […]
In any camps in which women prisoners of war, as well as men, are accommodated, separate dormitories shall be provided for them. […]
Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. […]
[In confinement,] Account shall be taken of the internee's age, sex and state of health.
Geneva Convention (III) on Prisoners of War 1949 - 14, 25, 27, 119
Hugo Grotius, the father of international law, coined the word “civilian” in the early 17th Century during his work for the East India Company. An ardent advocate of Dutch empire, he created a legal framework with two sets of rules, one for Europeans at war with other Europeans and another for Europeans at war against non-Europeans.
Nor was the distinction intended to protect or defend innocent people. Only in the 20th Century, following the horrors of two World Wars, did the idea of non-combatants as a class worth protecting evolve into the international legal language of war.
Fraught as the 1947-1949 Geneva Convention III process was, and as complicated as the question “what is a civilian?” can be, the assembled nations ultimately agreed to a set of rules for how civilians should be treated.
They did the same for the word “woman,” which had not been problematized into meaninglessness yet. “Gender,” the nebulous term that has been swapped in public discourse for the harder, more material “sex,” did not appear in the text. The Third Convention diplomats were not only able to reach a consensus on difficult questions that two previous conventions could not touch, they were also able to answer the greatest of 21st Century mysteries, “what is a woman?", with surprising ease.
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To be sure, women did much of the work. Modern historiography on the 1949 Convention is unanimous on this point. Because history has mostly been written by men, about men, women making important forgotten contributions — “hidden figures” — have been common.
Given all these “problematic” roots, it is hardly surprising that the 1949 Convention remains controversial, usually for not going far enough to protect civilians. As Boyd van Dijk writes in Preparing for War: The Making of the 1949 Geneva Conventions, Common Article 3 has been called “a major breakthrough, a disappointment — or even both” for its inconsistencies on a variety of questions.
Consider Helen Kinsella, an avowed feminist. In The Image before the Weapon: A Critical History of the Distinction between Combatant and Civilian, Kinsella introduces the postmodernist lens of Michel Foucault during her introduction, then proceeds to question the acknowledgement of human sex difference in the Geneva Conventions, calling it “the logic of the Middle Ages.”
Problematically, all four of the 1949 Conventions say that “women shall be treated with all consideration due to their sex.” The problem with this, Kinsella says, is that “the III Geneva Convention Relative to the Treatment of Prisoners of War gives us a definition of women that is, simultaneously, our only definition of sex.”
What a problem to have, eh:
The sex of women is defined on the basis of weakness, honor, and modesty, whereby pregnancy and childbirth are akin to weakness, and honor and modesty are articulated only in terms of sexual vulnerability to “rape, forced prostitution, and any form of indecent assault.” Women are both desired for and made vulnerable by their sex. [..] Only the suffering, distress, and weakness of women, derived from reproductive capability and sexual vulnerability, are the constant and natural markers of their very sex and, thus, of sex difference.
Concern for the welfare of the young, and the women who are traditionally assigned caring roles for children, especially their own, in every human culture because of immutable biology, pervades the III Convention and its official Red Cross commentaries.
“Children under fifteen shall in all circumstances enjoy preferential treatment, particularly as regards food, medical care and protection against the effects of war,” they say. “Expectant mothers and mothers of children under seven shall also enjoy preferential treatment.”
Having pried apart the onion, we learn that the “problem” here is how the definition of civilian is itself a product of “gender,” by which Kinsella means sex difference. For “even though children, women, and the elderly are consistently invoked as the paradigmatic civilian, only the category of women is accepted as always already civilian.”
Individuals in the other two categories, children and the elderly, are civilians momentarily, bounded by their chronological age; but women are civilians always, bounded by their sex. Thus it is sex and sex difference, as constructed through discourses of gender, that enable a distinction to be made between combatant and civilian.
The biology of human reproduction mattered too much, you see. Official commentaries to the 1949 Conventions “hold that it was the matter of women’s sex itself — defined as reproductive capability and sexual vulnerability — that places women outside the fighting,” she says.
As a result, it is only the category women, not the other distinct categories (children and old people), that both materializes and stabilizes the distinction between combatant and civilian as a matter of sex … Consequently, the relations of protection and the corresponding (inequitable) relations of power that they require are consolidated through recourse to the seeming immutability of (fundamentally heterosexual) sexual difference.
And there you have it: the 1949 Conventions are not woke enough because the meaning of “civilian” is too feminized. This principle of distinction is fundamental and fragile, Kinsella complains, so it “does not so much rest on a categorical difference between combatant and civilian as produce it.”
If only we stopped discussing sex difference in war zones, it would go away. Like magic, see?
Kinsella does not use the word “transphobia.” When she published her work over a decade ago, that term did not have the power or currency it has today. Nevertheless, she anticipates the fanatical rejection of any recognition of binary human sex differences, banishing all “terfs” from the discourse of civilization.
Examining the wars of the American West, Latin America, and decolonization, Kinsella appreciates the role of international law in limiting civilian suffering. She also isn’t arguing that women should be subject to greater suspicion of being combatants, or that war crimes are somehow okay.
Rather, Kinsella wants a definition of civilian that is not so “gendered” as this one. For the white European heterosexual capitalist men who invented the current body of law were too white, European, heteronormative, ritzy, and male to know what they were doing.
After all, they created the whole international-law thingy to make what they were doing to non-European peoples okay. Remember?
“Consistently, discourses of civilization were employed to legitimate the refusal of protection to those designated as outside its boundaries,” Kinsella argues.
Sure. But which civilization? In his book, van Dijk demolishes the “foundation myth” that the atrocities of the Second World War motivated the postwar powers to a rare show of unity in 1949. In fact, the Third Geneva Convention was a fraught process of disagreement and furious debate between potential enemy civilizations trying to shape the laws of future wars to their own liking.
“The drafting process resembled less an ivory tower, in which blueprints are conceived in splendid isolation, than a political arena, in which actors contemplate and struggle over different proposals and the stakes are often impossibly high,” van Dijk writes.
“In many different ways, they tried to define the contours of future battlefields by deciding who deserved protection, what counted as a legitimate target, whose lives mattered, whose did not, and who had the right to enforce them,” writes van Dijk. The results were “hybrid constructs, shaped by different drafters with contrasting political aims.”
This process was so difficult that the final version could only be approved by secret ballot. No “global civil society” was in the offing, and there were competing visions for a future global civilization, or whether it even ought to exist.
Yet they still knew what a woman is. In fact, there was no debate. Weird!
Then there are the contents of museums. Every prehistoric skeleton ever found with a perimortem arrowhead injury that has been sexed by science has been male. Every one, everywhere, ever.
Capital-H History begins with accounts of men having wars over women in Herodotus. Conflict anthropology can seem like wall-to-wall male violence, usually over women, also usually over matters of hierarchy. Ancient massacre sites have been dug up and analyzed as scenes of butchery: the men and children and old women were slaughtered, but no remains of young adult females can be identified.
War is a biological fact of human sex difference. Within that reality, females are in fact “resources.” This is not something that a European came up with. Or Hitler. Or ISIS. Polemology, the scientific study of war, is a dismal, depressing domain, and it is impossible for polemologists to unsee sex diffierence.
My survey of human conflict history shows a consistent 2:1 male to female ratio of civilian casualties throughout, almost a golden ratio of lethality. Germans did it to Russian civilians and Russian soldiers to German civilans. But less intense wars have produced similar ratios; so have genocides.
For example, the Indonesian genocide of 1965 had a similar ratio of dead males to females. A million people died in darkness, at least two-thirds of them being male. A majority of survivors were female, and their stories contain all the familiar, traumatic, sex-specific experiences the reader expects.
In the Indonesian example, a non-European civilization put “communists” outside those discursive boundaries of civilization and what-all. The category of “communist” included everyone discernibly “left.” Communists, feminists, writers, artists, academics, unionizers, and organizers were all arrested, but the outcomes — death in the dark, or sex-based exploitation — were neatly divided at sex.
Moreover, because the killing was done by death squads operating in secret, it was up close and personal. Killers preferred throttling and decapitation methods. On the island of Bali, military authorities passed out traditional klewang swords to their recruits. Countless reports of headless bodies and bodyless heads await the reader who delves into this historiography. Bear in mind that Indonesia was a post-colonial state, and furthermore a creation of Dutch imperial policy in the first place, just like the Geneva Conventions. Kinsella argues for “resituating and reassessing the principle of distinction” because straight white European men invented it. Would she apply the same principle to Indonesia?
Nevertheless, her work is a valuable corrective to gender identitarians gaslighting the existence of sex-based rights. After all, if the entire academic argument undermining (“queering”) history is that certain sex-based rights have existed since 1949, it is difficult to also argue that they never existed.
And yet we find this argument repeated by “feminists” as they respond to criticisms of “gender identity” as a legal and political concept.
For example, the ACLU has successfully sued in federal courts to let intact male inmates “identify” as female and get re-housed with female inmates in both state and federal prisons, with predictable results: rape, pregnancy, abuse, fear. California’s Democratic Party supermajority legislature actually voted to allow this insanity in their state prison system.
Engage in public debate on this point for only a few moments, though, and someone will flatly deny that “sex-based rights” even exist at all, let alone apply to the situation.
The International Red Cross understood damn well what a woman is, and why single-sex incarceration matters for women being interned in wartime, or any other time.
Nor does the question of female combatants change the answer to the question. “The only time the ICRC was ‘able to invoke the provision of the 3d Geneva Convention’ was after one of its delegates visited a prisoner of war camp in Poland where both men and women were being held,” Kinsella writes.
So not only is this a sex-based right in international law, but that law has already been enforced, even if “only” the one time.
Whether women are incarcerated in a “War on Drugs” in the US, or a war on unpaid TV licenses in the UK, they do not deserve to be housed with males who can hurt them. Whether or not the penises of those males have been inverted, those men are still male, with immutable combat advantages over women.
People who pretend not to understand why it is wrong to put men in women’s prisons like to also say that they are on the right side of history. Actual historians say otherwise.
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