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Commentary - Protection of women
    [p.891] Article 76 -- Protection of women


    [p.892] 3147 In the draft the ICRC had proposed a text (1) which was taken up and completed by the Conference. According to the ICRC it was primarily concerned with extending to all women the provisions contained in Article 27, paragraph 2, of the fourth Convention in favour of women who are protected persons within the meaning of the Convention ("Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault").

    3148 furthermore, the ICRC draft adopted the idea contained in Article 6, paragraph 5, of the International Covenant on Civil and Political Rights by providing that the death penalty may not be imposed upon a pregnant woman; in fact, that provision is aimed rather at the unborn child than at the mother herself. This draft was well received by the Conference, where it was discussed at length, and which then went beyond the ICRC proposals. Three amendments had been submitted. The first two were concerned, on the one hand, with prohibiting the death sentence from being pronounced on pregnant women; their sponsors argued that the conviction itself, even if not followed by an execution, could have harmful effects on the mother and the unborn child, and they also required that the death penalty be not pronounced on mothers with young children, or on old persons responsible for their care. Finally, the third amendment proposed that women arrested for patriotism or for their political non-submission should be released as soon as possible and with priority. (2)

    3149 Some compromise was achieved and following the report of the Working Group the article was finally adopted by consensus in Committee III and the Plenary Conference approved this decision without further discussion.

    Paragraph 1

    3150 This is almost identical to the text of the ICRC draft; it is also largely a repetition of paragraph 2(b) of Article 75 ' (Fundamental guarantees), ' with the addition of a reference to rape.

    3151 The rule applies quite generally and therefore covers all women who are in the territory of Parties involved in the conflict, following the example of Part II of the fourth Convention. In fact, the provision is not subject to any further specification, unlike most of the rules contained in Section III. Thus it applies both to women affected by the armed conflict, and to others; to women protected by the fourth Convention and to those who are not.

    3152 When a special reference to women was introduced in Article 27 of the Fourth Convention in 1949, the drafters of that provision had in mind the abuses [p.893] perpetrated particularly during the Second World War, when countless women of all ages had been subjected to terrible outrages. Extending the protection to all women in territories involved in conflict reveals the intent to proscribe such acts in general.

    3153 The rule relates to respect for the person and honour, as laid down in paragraph 1 of Article 75 ' (Fundamental guarantees). ' In any case, paragraph 5 of that article provides for special treatment for women whose liberty has been restricted.

    3154 In conclusion, this provision develops the fourth Convention by extending the circle of its beneficiaries; it also constitutes a substantial supplement to the International Covenant on Civil and Political Rights, which is less detailed in this respect, as it concentrates above all on the equality of the sexes.

    Paragraph 2

    3155 This paragraph was added by the Conference, as it was concerned to ensure that pregnant women and mothers of young children should be released as soon as possible. The terms used require some explanation. In the first place it should be noted that if a woman claims to be pregnant and her pregnancy is not obvious, a medical examination is required.

    3156 The question also arises what exactly is meant by the expression "having dependent infants"? On this the Rapporteur records the following:

    "After some discussion, the Committee decided to heed the experience of Committee I in dealing with comparable provisions in draft Protocol II in which that Committee had been unable to reach agreement on an age when infants no longer are dependent on their mothers. It was recognized that this might differ from case to case and from culture to culture. The Committee also decided not to use the term 'nursing mothers', but rather the broader term 'mothers of infants on whom the infants are dependent'." (3)

    3157 Thus all infants are covered who require the presence and care of their mothers and have not yet acquired full independence.

    3158 In Protocol II this concept can be found in Article 6 ' (Penal prosecutions), ' paragraph 4 of which provides that the death penalty shall not be carried out on pregnant women and mothers of young children. Thus the concept of dependence was not retained in Protocol II.

    3159 In the French version the expression "enfants en bas âge" lacks precision and does not refer to a specific age. The Spanish text "niños de corte edad" is similar to the French text and is not very specific either.

    3160 The English text, "mothers having dependent infants", seems to shed some light, since the word "infants" is used, rather than "children". According to the dictionary, the word "infant" often means a child who is not yet walking, but in Great Britain "infant schools" are schools for children between five and seven years old. Finally, in legal terms, the word "infant" means a minor, i.e., a person [p.894] under eighteen years of age. Thus no specific criteria can be taken from the English text either.

    3161 Some more useful indications can be found in the Conventions themselves. For example, Article 50, paragraph 5, of the fourth Convention provides:

    "The Occupying Power shall not hinder the application of any preferential measures in regard to food, medical care and protection against the effects of war which may have been adopted prior to the occupation in favour of children under fifteen years, expectant mothers, and mothers of children under seven years."

    3162 Article 14 of the same Convention, concerning safety zones, also mentions mothers of children under seven.

    3163 In the absence of national rules or customs prescribing a higher age, it may therefore be assumed that the age of seven years is the age under which the provision must be mandatorily applied. However, it must be considered as a minimum. In fact, children often depend on their mother well beyond that age; this should be taken into account and such children should be considered as "dependent infants" beyond the age indicated above.

    3164 The expression "for reasons related to the armed conflict" also requires some explanation. Paragraph 3 of Article 75 ' (Fundamental guarantees) ' uses the expression "actions related to the armed conflict". However, it does not seem that different situations were envisaged by these different wordings: it is more a matter of careless drafting. The French text ("pour des raisons liées au conflit armé") and the Spanish text ("razones relacionadas con el conflicto armado") do not shed much light. As we said with regard to paragraph 3 of Article 7 ' (Fundamental guarantees), ' the term "reasons" seems more appropriate and correct to cover all the cases which may arise: arrest for committing a breach, arrest for the purpose of interrogation, internment for present or past opinions or for any other reasons. Nevertheless, everything we said with regard to paragraph 3 of Article 75 ' (Fundamental guarantees) ' also applies here. Reference should therefore also be made to the commentary on this provision to determine the meaning of the words "related to the armed conflict" (supra, pp. 875-876).

    3165 "With the utmost priority" is an unusual expression which suggests that there are several degrees of priority. No doubt this means priority in relation to cases of other arrested, detained or interned women who are not pregnant nor have dependent infants, and it is priority in relation to all cases, including men. The word "utmost" was used to emphasize that the provision is mandatory, and to express the intent that pregnant women should be released as soon as possible and that mothers should be reunited with their dependent infants without delay.

    3166 During the discussions in the Working Group which examined this article and gave it its present form, a proposal was made to add to this paragraph a provision preventing women from being arrested or imprisoned solely on the ground of their convictions. After a lengthy discussion this proposal was not taken up from a concern that it would legitimize the arrest or imprisonment of other persons solely on the grounds of their convictions. However, the Working Group suggested dealing with the problem in a more general way in a separate article, as a provision applicable to everyone. As we saw above with regard to paragraph [p.895] 1 of Article 75 ' (Fundamental guarantees), ' (4) Committee III did not succeed in the limited time available in agreeing on this new article and it was therefore abandoned.

    3167 During the discussions it was proposed that elderly persons responsible for young children should also be covered by this provision, but no consensus was achieved on this point.

    Paragraph 3

    3168 The discussion on this paragraph, which deals with the death penalty, raised numerous problems. It was relatively easy to agree on the prohibition on execution of pregnant women; in fact, many of the national penal codes which still contain the death penalty include this restriction, and the practice of deferring execution until after the woman had given birth has been abandoned almost everywhere, de jure or de facto. On the other hand, a prohibition on pronouncing the death penalty on pregnant women or mothers having dependent infants conflicted with specific provisions of national legislation in several countries. The idea of deferring execution in such cases for a period was considered inhumane and therefore unacceptable. Finally, a compromise was agreed upon in the Working Group; it was accepted without discussion by Committee III, and then in plenary.

    3169 The first sentence looks like a limited obligation, as shown by the series of terms mitigating it: "to the maximum extent feasible", "shall endeavour", "avoid". On the other hand, the second sentence constitutes a clear prohibition and is formulated without qualifications. Thus, if despite the recommendation contained in the first sentence, the death penalty is pronounced on a pregnant woman or mother having dependent infants, it should in no event be executed, even when the child is no longer dependent.

    3170 The terms used require some explanation: "to the maximum extent feasible" corresponds to the French "dans toute la mesure du possible", and in Spanish to "en toda la medida de lo posible". Article 58 ' (Precautions against the effects of attacks) ' uses the same wording in the English text, though the corresponding French and Spanish texts are different: respectively, "dans toute la mesure de ce qui est pratiquement possible" and "hasta donde sea factible". It is rather strange that an expression which is the same in English in these two articles should appear with different wording in the French and Spanish texts. Here again, the Drafting Committee did not correct this error through lack of time.

    3171 The expression was discussed at length with regard to other articles, and the English speaking contingent insisted on using the word "feasible" and on a corresponding translation in other languages; that should serve as a guide in the interpretation of that expression. Thus it should be understood as meaning "capable of being done, accomplished or carried out, possible or practicable". (5)

    [p.896] 3172 For the expression "mothers having dependent infants", reference may be made to what we said on this matter with regard to paragraph 2 of this article. As regards breaches committed that are related to the armed conflict, reference should be made to what was said above with regard to paragraph 4 of Article 75 ' (Fundamental guarantees). ' It is true that that provision uses the words "a penal offence related to the armed conflict", which is slightly different from the text of the paragraph under consideration here. However, it is difficult to see how an offence other than a penal offence could be invoked to justify the death penalty. In fact they refer to the same situation.

    ' C.P./J.P. '


    NOTES

    (1) [(1) p.892] "' Article 67 -- Protection of women '
    1. Women shall be the object of special respect and shall be protected, in particular against rape, enforced prostitution, and any other form of indecent assault.
    2. The death penalty for an offence referred to in Article 2 common to the Conventions shall not be executed on pregnant women.";

    (2) [(2) p.892] O.R. III, pp. 298-299, CDDH/III/321-323;

    (3) [(3) p.893] O.R. XV, p. 464, CDDH/407/Rev.1, para. 56;

    (4) [(4) p.895] See supra, p. 871;

    (5) [(5) p.895] On the meaning of this expression, see commentary on Arts. 57 and 58, supra, pp. 681 and 692;