In the same vein, data is available on the traumatic injuries suffered by Palestinians, including fractures, peripheral nerve injuries, amputations of one or several limbs, spinal cord injuries, traumatic brain injuries, and burns. The scale of amputation for the general population, and for children in particular, has also been measured with an approximate estimate of 1,000 children with one or both legs amputated as a result of bombardment since October 7th, 2023.

Persistent media coverage also draws our attention to the wholesale destruction of buildings, and the annihilation of civilian infrastructure in the territory. Systematically destroyed civilian services includes water infrastructure, schools, universities, religious sites, desalination facilitation, and sewage systems. Medical infrastructure and most particularly hospitals have been systematically destroyed. Only 20 of Gaza’s 36 hospitals remain partially functioning, and the WHO has documented 686 “health attacks” in the Gaza Strip, affecting 122 health facilities and 180 ambulances since October 7th, 2023. The catalogue of violence has shattered the infrastructure necessary for humans to survive and comprises every single dimension of basic human need in society. Sustained analysis, here and here, implicates profound breaches of international humanitarian law by Israel in these military actions, including war crimes, crimes against humanity, and genocide.

But a focus on any singular catalogue of violence (whether mortality, injury, or infrastructure damage) without an amplification of other grievous and connected violations misses a broader point about the nature and form of total civilian harm in Gaza. War deaths and other similar measures are simply an inadequate measure for assessing war-related vulnerability and harm. Such a focus fails to account for the cumulative civilian harm experienced in Gaza. I argue that for knowledge, accountability, and reparation we need to reconceive of the consequences of violence in Gaza for civilians in a different way. We need to name and understand composite, aggregate, collective, and layered harms to fully address what civilians have actually experienced during this conflict. The consequences for women of cumulative violations are particularly grave because sustained violations by Israel in this war are built on pre-existing societal inequalities and vulnerabilities. These inequalities follow from both the structure of local practices and customs regarding women, and from the nature, form, and impact of Israel’s occupation and interface with that polity. Elevating the connections between direct, indirect, and structural violence to civilians in Gaza reframes both consequences and liabilities for Israel under international law. More broadly it clarifies the obligations of an occupying power and has distinct consequences for transformative occupation practices. It clarifies responsibilities and liabilities in military decision-making during active hostilities and under the law of occupation, including assessing individual criminal responsibility for war crimes, crimes against humanity, and genocide.

I make several interlocking arguments that focus on the nature and form of cumulative civilian harm in Gaza, building on prior work. First, I explain what is meant by cumulative civilian harm and why this is a necessary concept to reframe our understanding of the scale and profundity of violence experienced by the civilian population in Gaza. Second, I argue that cumulative civilian harm moves us from a siloed perspective that categorizes civilian targeting and harm as a series of singular unconnected violences to a holistic understanding of scales of harm over time. Cumulative harm assessments force us to grapple with the density of violence and multiple violations experienced by individuals, families, and communities concurrently as well as sequentially and intersectionally. Third, this viewfinder has several legal implications for command decision-making, the threshold of gravity as a matter of International Criminal Court (ICC) jurisprudence, and crimes against humanity and genocide analysis, which I elaborate further upon below.

Cumulative Civilian Harm Defined

Cumulative civilian harm is a concept in development, led by the work of a research group at Essex University with multiple academic partners in the UK and beyond (for full disclosure, I am a member of this group’s advisory board). This concept is intended to address existing blindspots in international law, which does not sufficiently consider the aggregate impacts of protracted armed conflict on civilian populations, including individual and societal trauma, socio-economic degradation, severe and prolonged infrastructure decline, and the accumulation of civilian death across repeated attacks over time. I build on the notion of cumulative civilian harm intermeshed with feminist theories of harm and continuums of violence, undergirded by a recognition of the political economy of war as it affects women, to explain how civilians experience intersectional and sustained harm in Gaza, in a way that existing paradigms simply do not account for.

The concept of cumulative civilian harm is based on the fundamental protection provided to civilians under the law of armed conflict, from the absolute principle that the civilian cannot per se be the object of attack and that precautions must be taken in military targeting when harm is anticipated for civilians as a result of actions that provide military advantage. As such, military commanders  are under strict obligations to assess the necessity and proportionality of identified military targets and decision-making which adversely impacts the civilian population. Importantly, under the law of occupation military commanders are under specific obligation to ensure that any action taken protects the civilian population. In parallel, the duty of “constant care” for commanders set out in Additional Protocol Article 57(1) demands military commanders consistently act to protect the civilian protection, both generally and specifically. Constant care requires situational awareness of the violence and harm that has befallen the civilian population before another operation or attack is commenced, as relevant to any next decision the commander makes.

However, these rules were developed to some greater or lesser degree in a framework that envisaged military decision-making as a series of one-off decisions and did not specifically anticipate that the civilian population that might be adversely affected was persistently the same population subjected to the same military measures over and over again (with no end in sight). As a result, the cost of persistent attacks on a population is not adequately measured. While the measurement of incidental harm pursuing a valid military objective is required to take account of changed circumstances, in practice it does not currently account for the cumulative, sequential targeting of civilian objects or persons. A focus on cumulative civilian harm demands close attention to incidental civilian harm that should be calculated taking account of connected prior attacks as an intrinsic dimension of evaluating incidental civilian harm in targeting.

Moving from Artificially Siloed Analysis to a Holistic Understanding of Harm

Contemporary law of war analysis is generally tempered by a set of temporal and geographical assumptions about the progression of war, namely that conflict moves through both the civilian population and territory. Limited temporality is thus produced in each decision taken by a commander, which is considered as a stand-alone decision rendered simply on the facts before her, and assessed in a silo for its compliance with the law of armed conflict. Thus, disembodied frames dominate the assessment of command decisions in a military operation, even when it involves a series of connected targeting or other decisions, and flattens out the relevance and consequences of prior decisions. It also acts to screen the “operation” as a whole from assessments of illegality because each legal assessment is limited to an individual decision that may, when taken out of the wider operational context, pass a proportionality test that the operation as a whole would not, if considered cumulatively. The tragedy of this artificial silo for the civilian population is that when that population has been repeatedly subject to a series of connected targeting or other decisions, it is the cumulative effect of these decisions, not merely the consequence of one specific decision, which is decisive to their (lack of) protection and exacerbates their vulnerability.

The example of civilian displacement in Gaza illuminates this point. Evacuation of civilians from combat zones in war can be lawful. However, as a threshold matter mass civilian evacuations in Gaza do not appear to meet the requirements of imperative military necessity and are not undertaken for the safety of the civilian population. Regrettably, legal and political commentary on repeated evacuations for Gazans has focused on whether specific movements (for example, Gideon’s Chariots or other specific operations) are per se lawful. Recall that international humanitarian law (IHL) requires that forced displacement must be temporary, protective, and conducted safely. Commentators broadly agree that the costs of evacuation for the civilian population are high. What then, if we assessed the lawfulness of forced displacement through a cumulative civilian harm lens, addressing what it means to be repeatedly and unsafely moved within the course of a single conflict? A cumulative analysis would address the deepening lack of (or increase in) safety as a result of each additional displacement, as well as the increasing costs every single time a population is forced to move again. This cumulative analysis takes into account that the same population has also experienced mass killing, maiming, homelessness, hunger, lack of water, lack of sanitation, and other consequences of prior military targeting of civilian infrastructure. A cumulative assessment both examines mass evacuations in their totality to assess legality after the fact and equally requires that at the front end the military commander assesses any new evacuation in light of prior evacuations (not least to assess her own potential liability for the commission of war crimes).

Moreover, if we apply a gendered and intersectional lens to (multiple sequential) evacuations, we would see the specific gendered vulnerability of the largely female and child population that is being constantly forced to move. Such an intersectional lens recognizes that civilian victimization leaves women consistently in the crosshairs of war.  Palestinian women have “choiceless choices” in practicing everyday survival, in a context where their lives and the lives of their children are denied humanity and even grieveability.  Cumulative harm allows us to surface women’s reproductive status (pregnant, nursing or post-partem), maternality, and the implications of the age of the population, including chronic medical conditions (e.g. hypertension, diabetes, mobility, and cardiovascular disease). An intersectional and cumulative assessment of female civilian vulnerabilities would account for the gendered consequences of family dispersal in a highly patriarchal cultural context. Specifically, this would better address the impacts on women who must move absent male family members to accompany them as they are forced to relocate less and less safe places. Such an assessment also mandates addressing women’s vulnerability to violence or exploitation as a result of forced displacement. A cumulative civilian harm assessment encompasses this intersectional lived reality for female civilians on the ground. It also demands attention to the cost of forced displacement to children, including the profound vulnerability to further violence and profound psycho-social trauma. Cumulative civilian harm analysis allows us to name the inadequately provided-for prior evacuation(s) added to the bombardment, hunger, and distress of thousands of children and makes these prior harms unmistakably relevant to every next decision a military commander makes regarding that same population.

In Gaza, sustained forced and unsafe displacement, where displacement per se appears to be the political goal of the occupying power, seems to be designed to undermine the functioning and integrity of social and familial bonds. As a result, the military objectives undermine the social and economic integrity of the civilian population as a whole. This lens is necessary in Gaza because, without it, we end up in a never-ending listing of singular violations and harms but fail to put what we see together in a unified whole. The amalgamated whole enables us to face the total consequences for the civilian population resulting from military decisions exerted upon them. It enables us to better assess the potential liability of commanders (both civilian and military) for the commission of war crimes and crimes against humanity.

Legal Implications of Cumulative Civilian Harm Analysis

Cumulative civilian harm analysis could arguably affect criminal law assessments of command decision-making for targeting decisions when the same population is consistently the subject of cumulative targeting and/or adverse military decision-making. One legal consequence of a cumulative civilian harm lens is that it would place clear and unrelenting obligations on the military commander both at the tactical and senior command levels, to assess the full gamut of what the civilians have already suffered prior to making any additional military decisions. Proportionality, for instance, is deeply implicated in a cumulative civilian assessment because this would demand an engagement with the cost of the military decision balanced with the knowledge of prior evidenced cumulative civilian suffering. A cumulative civilian harm assessment is also intrinsically linked to the core principle of reducing civilian suffering (which includes a ban on terrorizing civilians) coupled with the requirement to prevent unnecessary suffering, and ensures that suffering is understood in the lived cohesive reality as experienced by the vulnerable civilian, not merely in the context of one isolated strike.

More broadly, when cumulative civilian harm is at the heart of civilian protection, the costs to the civilian population are holistically understood. Unavoidably so. This also shifts the potential of the “gravity” threshold assessment under the ICC’s jurisprudence, not least because it moves us from an incident-focused consideration of international criminal liability to a broad society-based assessment of the gravity of harms experienced by the civilian population through a military campaign.

Cumulative harm assessments also provide linkage across specific violations of international law to demonstrate systematic patterns of violations relevant to potential liability for crimes against humanity and genocide. This move from a concentration on whether individual attacks are in compliance with international humanitarian law, to assessing the totality of a sequence of connected attacks involves a legal and contextual shift. Such a move also reaffirms the point made by the government of Belize in its intervention in the genocide proceedings against Israel at the International Court of Justice that “it follows that it is possible for a State to intend to destroy, in whole or part, a relevant group for the purposes of Article II, and for it to carry out that intent by, inter alia, engaging in a series of IHL-compliant attacks resulting in the collateral deaths of members of the group.” Assessment for cumulative harm is necessary to avoid the artificial position that the protection of the civilian is absolutely unconnected to prior attacks and their consequences on the future decision-making of the military commander involving those same persons and objects.

Cumulative civilian harm gives us a better vocabulary to meet the lived, brutal, and unrelenting violations experienced by civilians in Gaza, and if not to offer accountability then at least to be honest about the scale and incommensurability of that harm.

Postscript

Commentators might observe that the analytical framework of cumulative civilian harm could also apply to the experience of ongoing bombardment of the civilian population in Israel. This is, in principle, correct. Equally, the application of cumulative harm analysis requires attention to scale and concrete measured costs of violence, as well the capacity of the civilian population to be sheltered, materially protected, and have both macro and micro exit from military action in question.

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This week’s court ruling ordering NSO Group to pay $167 million damages to Meta, highlights the gravity of the harms caused to journalists, human rights advocates, lawyers and government officials. The decision reflects a growing recognition that civil remedies should count the costs of the violations caused by spyware. But this one case does not solve the larger problem of systemic abuse and underscores the pressing need for robust international frameworks to regulate commercial spyware and protect human rights.

The new Code is a positive development towards creating a global regulatory mechanism for spyware. Nonetheless, a fundamental question remains, whether this Code is sufficiently robust to stem the abuses and flagrant misuse of surveillance technology by both authoritarian and careless states, as well as malign non-state actors.

The reasons for regulation are compelling. As the 2024 Joint Statement on Efforts to Counter the Proliferation and Misuse of Commercial Spyware led by the United States unequivocally set out, such powerful and invasive tools have been used to “target and intimidate perceived opponents and facilitate efforts to curb dissent; limit freedoms of expression, peaceful assembly, or association; enable human rights violations and abuses or suppression of civil liberties; or track or target individuals without proper legal authorization, safeguards, or oversight.” The Code of Practice is a significant advancement, injecting new momentum to regulatory efforts–but it also comes with drawbacks and concerns that I set out below.

The Code has several positive features. It is structured with a short overarching Preface, followed by four Pillars that variously address Accountability (Pillar 1), Precision (Pillar 2), Oversight (Pillar 3) and Transparency (Pillar 4). Encouragingly, the Code demonstrates a clear move from exhortation to action by twenty-one States (not yet including the United States, which has recently indicated an intention to sign on). It is unambiguous about the security and human rights challenges posed by commercial cyber intrusion capabilities:

“… the proliferation of CCICs raises questions and concerns over the impact of their potential irresponsible use on national security, respect for human rights and fundamental freedoms, international peace and security, and an open, secure, stable, accessible, peaceful and interoperable cyberspace.” (Section 1.2.a)

The Code has a wider reach than simply addressing mercenary spyware, as its scope is focused on commercial cyber intrusion capabilities broadly defined. On the one hand, this means States are taking seriously the multiple tools being deployed to target their national security integrity that also produce grim human rights effects. Yet the Code’s wider aperture may inadvertently obscure the unique threats posed to legal and political systems by the flagrant abuse of mercenary commercial spyware. This in turn raises profound questions about whether the Code goes far enough to address spyware’s unique vulnerabilities and abuses.

Second, this Code positively affirms State human rights obligations: it is grounded in and makes substantial references to the human rights treaties and standards. References throughout the text include: ‘human rights and fundamental freedoms’ (Section 2.a.i & 3.b), protection of privacy and freedom of expression (Section 2.a.i & 3.b), ‘principles of sovereignty and non-intervention’ (Section 3), the and ‘business-related human rights violations’ (Section 6), accountability including under international human rights law (Section 8), echoing human rights treaty standards, CCICs only being used for ‘lawful, legitimate and necessary’ purposes (Section 8.a.i.), that ‘export control licensing decisions’ should account for ‘internal repression’ and the ‘commission of violations or abuses of human rights’ (Section 8.b.i), the obligation to ‘assess vendors’ with regard to the rule of law and applicable international law (Section 8.c.i.), mitigate adverse human rights impacts (Section 8.c.iv), provide support for victims (Section 8.e), and undertake oversight with due diligence  with reference to ‘principles such as lawfulness, necessity, proportionality, and reasonableness’ in the work of States (Section 10). This integration of rights language is progress—and demonstrates a positive development that places human rights compliance at the heart of State practice.

Third, the Code affirms accountability as an indispensable part of regulation. It identifies transparency mechanisms to enable adequate knowledge of cyber intrusion capabilities (Pillar 4); and introduces a new terminology of ‘precision’ in CCIC use to (theoretically) preempt manifest human rights abuses (Pillar 2). Politically, the Code shows the determination of the United Kingdom and France to build on the Biden administration’s actions to address the double scourge of spyware-exposed security vulnerabilities and rights violations. This need is compelling, as I estimate that over 100 States have used or acquired spyware capacity.

Nonetheless, I offer some caveats. The Code is premised on an acceptance of spyware (and other tools) used by States. It is remarkable to see this breakneck embrace by States who previously feigned embarrassment and dodged positive affirmation of domestic spyware deployment when abuses were revealed. This turnabout represents a break with the firm affirmation by the U.S. government and other States in the 2024 Joint Statement that held unequivocally:

“We therefore share a fundamental national security and foreign policy interest in countering and preventing the proliferation of commercial spyware that has been or risks being misused for such purposes, in light of our core interests in protecting individuals and organizations at risk around the world; defending activists, dissidents, and journalists against threats to their freedom and dignity; promoting respect for human rights; and upholding democratic principles and the rule of law.”

Worryingly, we appear to be marching toward a new world of normalized spyware usage. The move is highly challenging for rights protection, for civil society and for State security. The Code accepts that there is a legitimate state market for these tools including spyware, and de facto affirms they are in widespread usage:

“Many of these tools and services can be developed or used for legitimate purposes” (Section 2.a).

“The market for CCICs encompasses a wide variety of cyber intrusion companies offering products and services that are continually evolving and diversifying” (Section 2.b).

The Code’s approach ignores previous calls for a ban or moratorium on the use of surveillance tools like mercenary spyware. Even as human rights experts, including myself, have called for regulation, we have done so by arguing for a capabilities-based or compliance-by-design approach. Acknowledging that a market exists for a product does not mean accepting it is a regular or normal market and misses a fundamental point that the market can only be regulated in human rights terms if the products themselves are compliant by design. The Code is weak on this fundamental point, making only one reference to ‘security by design’ (Section 4), rather than explicitly calling for human rights compliance by design as a baseline.

Moreover, the Code adopts a weak framework for regulation, namely the terminology of ‘proliferation and irresponsible use’, which has emerged in arms control and new technology spaces as a for state commitments and actions when States were unwilling to develop concrete, binding norms. Drawing lessons from international arms control agreements, the establishment of binding legal standards, rather than voluntary codes, has proven more effective in curbing the misuse of dangerous technologies. For example, when the Joint Declaration on UAV’s used this language civil society was clear that:

“[i]f the concept of ‘responsible use’ is to be part of this framework, specific work must also be undertaken to reach a common understanding of what this means, and which at least meets existing law and standards …”

The danger of ‘proliferation and irresponsible’ use language is that it risks legitimizing the use of tools that cause systematic and fundamental violations of human rights across the globe. The States who signed this Code must guard against the risk that the language of “preventing proliferation” operates inadvertently as an enabler of use, rather than a restraint.

And while this Code has a wider ambit than spyware, spyware regulation is the litmus test by which this Code’s robustness and relevance must be judged. Spyware-related rights violations range from express relationship to violations of non-derogable rights like the right to life and torture, and to derogable rights like privacy, freedom of expression and association where abuses are widespread and undercounted. Spyware is not just any other surveillance tool. Without robust international law-compliant regulation on how it is designed, applied, authorized, sold, transferred and overseen, it may in fact be per se non-compliant with international law.  It is not simply a tool among many, it is a tool that currently functions as an existential threat to the viability of human rights protections, and perhaps even democracy itself across the globe.

For this reason, the language of “irresponsible use” must be understood, by definition, as sweeping in all the existing treaty and customary international law obligations of States to protect human rights. While this Code explicitly recognizes and affirms those norms (Section 3.a-b), it falls short by not ensuring that this grundnorm animates the Code as a whole. The bottom line of regulating spyware must be: even where lawfully permitted and authorized, spyware must be a tool of last resort for States and must always be subject to strict legal and judicial controls.

Spyware should not be available to governments that cannot demonstrate independent judicial oversight and accountability. This is where strict controls on transfers of this technology are critical. Implementing stringent export controls and holding vendors accountable for the end-use of their produces are essential steps in preventing the proliferation of spyware to regimes with poor human rights records. Yet the Code’s commitment to legality and existing human rights standards is undermined by its language: it states that governments “may [not must — my addition] incorporate principles such as lawfulness, necessity, proportionality, and reasonableness” in their regulation (Section 10).

While this soft-law approach does not guarantee ongoing abuse, it provides little by way of concrete tools to prevent it. Bad outcomes are not inevitable because of this language of “irresponsible use.” But better practice exists—and the Code’s signatories should build on it. For example, the explicit articulation by 2021 NATO Artificial Intelligence Strategy sets out six “Principles of Responsible Use”—lawfulness, responsibility and accountability, explainability and traceability, reliability, governability, and bias mitigation—that can serve as a model for strengthening and augmenting the Code’s language.  Moreover, States must be reminded that they are fully bound by their existent hard law human rights and humanitarian law obligations when they purchase, use, host, share and transfer spyware.

In short, the Code marks real progress and demonstrates a serious commitment by some States to ensure practical regulation of digital surveillance tools, including spyware.  But it stops short of agreeing to a hard legal standard by which States commit to preventing spyware abuses in their domestic law and does not give us a roadmap to accountability and remedy for victims of spyware abuses. The Pall Mall Code must be treated as floor—not a ceiling. Because this is an iterative process, States still have the opportunity to tighten their commitments, insist on the full application of international law, focus on limiting (not expanding) this dangerous market, and provide remedy and accountability to the thousands of spyware victims across the globe.

Update (May 9, 2025): The United States appears to have signed on to the agreement. 

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The FBI currently assesses that the perpetrator, a U.S. Army veteran, was acting alone.  Law enforcement officials are also rightly investigating the crime as an act of terrorism. They established a terrorism link after reportedly finding that the perpetrator carried an ISIS-style flag in his truck and pledged allegiance to the group in several videos posted online. This is not the first incident in the U.S. when self-radicalized perpetrators have used the moniker of ISIS to justify their brutal violence. Other incidents include: the December 2015 shooting in San Bernadino, California; the June 2016 Pulse nightclub massacre in Orlando, Florida; and the October 2017 truck attack in New York City.  The 2017 attack in Manhattan is similar to the incident in New Orleans. In both instances, an individual claiming fealty to ISIS drove his rented truck into a crowd of innocent civilians. And the New Year’s attack on Bourbon Street likely won’t be the last incident involving a deranged perpetrator linking his violence to a designated terrorist group.

On slow news days at the beginning of the New Year, the focus on an ISIS link dominates media conversations. Alas, the narrow focus on ISIS has the effect of flattening out deliberative and useful conversations about self-radicalization, lone wolf terrorism, and mental health. It also means that other useful discussions are not adequately addressed, including those concerning the profiles of offenders, the tactical capacity of individuals, and the role of social media in enabling this kind of inspiration. Regrettably, when it comes to acts of violence defined as terrorism there is a tendency to avoid the logical conversations we should have as policy makers, responsible media and commentators, and instead focus on the “sexy” stuff, such as the actual or alleged links with foreign terrorist organizations rather than the things we know about most crimes including the crime of terrorism.

It is easy to  forget that the focus on ISIS serves terrorist organizations well by ascribing acts of violence and/or terrorism to them when they may have played no concrete role. In fact, that is precisely what ISIS leadership has long demanded. In a sense, the tenuousness of the link does not matter. ISIS seeks the appearance of global reach – whether the characterization is accurate or not. And it is a propaganda success for ISIS if the ordinary public is convinced that it has ubiquitous reach, even if in fact there is little truth in the assertion. In fact, homeland terrorism threats in the United States are dominated by an “amorphous threat environment where individuals or small cells independently plot attacks to advance a range of ideologies and political objectives.” The fact that one individual links himself to ISIS does not mean that the group played a constitutive or organizational role in his action, or that the threat of ISIS as an organization is manifestly higher on the territory of the United States. The public needs to understand that the trapping of a flag and videos crediting ISIS do not make this individual a card-carrying member of his identified terrorist group.

There are good reasons to be cautious when assessing the individual perpetrator and the overall risk or terrorism. Providing ISIS the unwarranted credit it seeks could facilitate political overreach, as well as the misuse of governmental tools in response to an inaccurate characterization of threats.

None of this is intended to suggest that law enforcement or the public should dismiss the link to terrorism in New Orleans. Quite the contrary. It is to underscore the value of accurately and precisely defining the threat and the actors involved, as analysts would in any other crime. It is also a reminder that the U.S. government should not treat terrorism as an exceptional or existential threat but instead deal with it logically and objectively as it would any other crime.

Were the media and the U.S. government to take a more nuanced approach to discussing terrorism, it might help break the cycle of affirmation that ISIS and other terrorist groups rely on to produce and encourage horrific violence.  An inability to think logically and coherently about the motivations of individual perpetrators only helps groups such as ISIS advance their aims. Terrorism prevention requires the media and the U.S. government to do a better job in naming the crime, identifying its causes and responding to it in a sensible way.

IMAGE: Members of the National Guard monitor a blocked off section of the French Quarter, after at least 15 people were killed during an attack early in the morning on January 1, 2025 in New Orleans, Louisiana. (Photo by Andrew Caballero-Reynolds/AFP via Getty Images)

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For months, commentators who closely watch Syria have been warning about the mounting ferocity of ISIS attacks, as well as the growing organizational capacity of proscribed groups and affiliated organizations in the region. While some view HTS as a primarily “localized” force, with limited territorial reach, the recent fighting demonstrates that the group retains the ability to reignite the long dormant conflict across northern Syria. Many of us have long argued that the so-called defeat of ISIS was prematurely declared, not least because there has been no reckoning with the causes of the ongoing conflict(s), no fundamental accounting for the political instability that defines life in northeast and northwest Syria, and no willingness by responsible States to address tough questions, including a negotiated settlement among parties, or even a partial settlement. And while ISIS appears to be playing a limited role in the current battles in Aleppo and Hama, it remains poised to capitalize on the ongoing insecurity, even as its rival terrorist organizations, such as HTS, surge.

As other regional wars and bombardments, including the conflict and civilian catastrophes in Gaza and Lebanon, have garnered headlines, violence has been brewing in the background in Syria. Armed groups have tenaciously consolidated their forces and control over territory, but international and regional powers have demonstrated little desire to do anything more than maintain a certain status quo between all the parties on the ground following the fall of Raqqah in 2017.

The U.S.-backed Syrian Democratic Forces (SDF) have been left to manage a massive detainee population in multiple prisons and detention facilities, as States including Canada, Australia, France, the United Kingdom, Tunisia, the Maldives, Trinidad and Tobago, and Egypt, as well as other nations, prevaricate on their fundamental human rights and security obligations to other States. Nowhere is the unsustainable status quo more evident than in the ongoing failure of these States and others to return their third country nationals from detention sites in northeastern Syria.

When I visited that territory in July 2023, months after an unsuccessful but deadly attack on Al Hasakah prison, it was clear that “out of sight” should not be “out of mind.” For States that claim to be concerned about preventing violent conflict and want to stop another regional conflagration, the failure to address these prisons and detention facilities is not just grim human rights practice, but also myopic long-term security thinking. Terrorist groups such as ISIS have repeatedly targeted such facilities, which serve as incubators for extremism and house experienced fighters looking to return to the battlefield. Prison breaks have fueled ISIS’s rise in the past and could easily fuel its territorial gains once again, as thousands suspected of having an affiliation with ISIS remain in SDF facilities. My estimate in July 2023, was that over 73,000 men, women and children were detained across multiple facilities.

Other tough issues that must be addressed in the short and medium term include systematically making accountability for serious human rights and humanitarian law violations committed throughout the course of the Syrian civil war a reality. Thorny questions of managing ongoing amnesty are now intermingled with accountability, to which one can add the horror of scalar disappearances. Of course, these problems are exacerbated by an ongoing humanitarian crisis in which Syrian civilians lack access to water, food, and a basic health infrastructure – all of which compounds misery and makes (other) violent alternatives to the status quo palatable.

When these basics are not addressed violent extremism follows, and the fertile ground that exists for violent armed groups deepens. Anyone who knows this region is probably not surprised by the events of recent days in Aleppo and the outskirts of Hama. Rather we are asking how many more signals are needed such that the Syrian conflict is no longer ignored, and diplomatic efforts involving all the parties are pursued in earnest. If the international community wants to resolve this conflict, and prevent future ones, it will have to fundamentally address the conditions that produce it.

In late 2019, then President Donald Trump made an impulsive decision to withdraw U.S. troops from Kurdish-held territory in northeast Syria. The results included further instability and paved the way for the resurgence of ISIS. The new battles raging in Aleppo and north of Hama are a warning: Syria can no longer be ignored. In particular, the situation of thousands of men, women and children deemed affiliated with ISIS must be resolved. In the weeks ahead, responsible governments should bring their nationals home with urgency, viewing their arbitrary detention not just as an egregious human rights violation, but also as strategically necessary to ensure regional and global security. Parallel to concrete action on detainee returns, States should rekindle mediation and negotiation efforts, pursuing discrete confidence-building measures among all parties.

IMAGE: An anti-regime fighter stands on a road as displaced Syrian Kurds drive vehicles loaded with belongings on the Aleppo-Raqqa highway to flee areas on the outskirts of the northern city of Aleppo which were formerly controlled by the Kurdish-led Syrian Democratic Forces (SDF), after they were seized by Islamist-led rebels on December 2, 2024. On November 27, the Islamist Hayat Tahrir al-Sham (HTS) alliance led a major offensive snatching Syria’s second city Aleppo and dozens of towns and villages from government control, after years of regime gains in successive Russian-backed military campaigns. (Photo by RAMI AL SAYED/AFP via Getty Images)

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The “Pall Mall Process,” which emerged from the U.K.-France Cyber Initiative, is the most intriguing of recent developments. An international initiative led by France and the U.K., it has brought in other countries, the private sector, and civil society to “tackl[e] the proliferation and irresponsible use of cyber intrusion capabilities.” Pall Mall reflects an emerging consensus among key States that inaction on spyware is no longer an option for democracies, and that the costs of misuse – both for the rule of law and for national security – are untenable.

Several thoughtful assessments of the Pall Mall Process highlight gaps, most notably the narrow focus on “commercially available” spyware which, by its very nature, fails to grapple with irresponsible use and proliferation by governments, as well as the vast expenditures of money supporting the development of spyware capacity with few restraints on design or export.

But the key question now, and particularly for a new British government, is how it and its French counterparts might assume more robust leadership with respect to global spyware regulation. If Pall Mall is not to be consigned to the scrap heap of talking points, France and the U.K. must become advocates for national regulation and regional and global coordinated action. In doing so, they can learn from the United States, which has leveraged a mix of targeted sanctions and export controls to restrict the reach of certain commercial spyware technologies.

Spyware Abuses and the Pall Mall Process

Thanks to investigations by advocacy groups such as Citizen Lab, Amnesty International, and others, it is indisputably clear that spyware technology has been opportunistically deployed, under the cover of national security, to target journalists, human rights defenders and opposition politicians, and on a scale that defies belief. Alongside these galvanizing concerns, countries will also be mindful of the risk that these technologies pose to their own security, should they continue to proliferate, including into the hands of recalcitrant governments, criminals, and U.N. designated terrorist organizations.

The question is: what more can countries like France and the U.K. do, building on their first commendable step in the form of the U.K.-France Cyber Initiative? It is crystal clear that the spyware scourge needs global, comprehensive, and broad-ranging regulation. An additional question is: how can this Anglo-Franco partnership on spyware be leveraged to help the European Union build on the comprehensive Pegasus report of the European Parliament and more firmly bring into focus for its members the importance of regulating spyware in a comprehensive and practical way domestically?

The Pall Mall Process culminated in a February 2024 London conference, and brought together an unusual mix of twenty-five States as well as the African Union and the Gulf Cooperation Council, a political, economic, and social union between six countries in the Middle East. Like Costa Rica’s call for a moratorium on the sale, use, and transfer of spyware, Pall Mall’s goal is to bring groups of States together to focus on collective action and build a network of governments united in their willingness to act. While Pall Mall has potential, it has yet to produce concrete results.

A unique feature of Pall Mall is that it also brought together industry (BAE Systems, Google, Meta, and Microsoft), civil society, and academics. The Process advertised its goals as “establish[ing] guiding principles and highlight[ing] policy options for States, industry and civil society in relation to the development, facilitation, purchase, and use of commercially available cyber intrusion capabilities.” The declaration explicitly recognized the indispensability of oversight, precision, transparency, and accountability, terms that have long been absent from regulatory conversations among institutional actors about cyber intrusion capabilities, including spyware, and long sought by NGOs and civil society. Despite the clarion call to action for industry and governments alike, pressing them to “ensure that the development, facilitation, purchase, export, and use of commercially available cyber intrusion capabilities does not undermine stability or threaten human rights and fundamental freedoms, including in cyberspace,” Pall Mall was low on specifics.

So, what is the best way forward? Pall Mall’s current commitments are thin; setting out “steps” to tackle the misuse problem, including developing existing international export control frameworks, and unspecified domestic action in national jurisdictions. Ongoing dialogue was affirmed, and another conference proposed for 2025 (the details and substance of which has yet to emerge). But, regretfully, meaningful collective action from both countries and the wider group invited to the Pall Mall Process is still awaited. The moment is ripe for action and the U.K. and France are well placed to lead again, and they can do so by learning from effective and deepening domestic measures in the United States.

U.S. Action on Spyware Abuses

In this context, France and the U.K. should take note that despite a lack of broader traction some States have not waited for the crowd to move and are instead proceeding tentatively forward on regulation. Just two days before the Pall Mall conference, the U.S. State Department announced restricted visa access for “individuals believed to have been involved in the misuse of commercial spyware.” This policy may be applied to citizens of any country, even those whose citizens do not typically require a visa to enter the United States. Adding to this policy, the State Department announced in April 2024 that it was imposing visa restrictions on 13 different individuals who were “involved in the development and sale of commercial spyware” or their immediate family members.

On top of visa restrictions, in March 2024, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions against “two individuals and five entities associated with the Intellexa Consortium for their role in developing, operating, and distributing commercial spyware technology used to target Americans, including U.S. government officials, journalists, and policy experts.” The Consortium is a complex  network of companies founded by former Israeli military intelligence officer Tal Dilian (one of those named individuals now under U.S. sanctions), that have sold commercial spyware to repressive political regimes. All property of these individuals or entities within the United States must be blocked and reported to OFAC and any transactions involving any property or interests by these persons or entities are also generally prohibited. Any person or institution that does engage in transactions with these blocked persons or entities may face similar sanctions.

These sanctions are consistent with 50 U.S.C. § 1710 which became effective in April 2024. The statute, aimed at “confronting asymmetric and malicious cyber activities,” enables the president to sanction individuals the Treasury Secretary, Attorney General, and Secretary of State determine were involved in cyber-enabled activities that have or are reasonably likely to pose “a significant threat to the national security, foreign policy, or economic health or financial stability of the United States.” Possible sanctions include ineligibility for, or revocation of, visas to enter the United States or blocking of property and property interests. This type of concrete domestic action builds important gap-filling work in the absence of comprehensive global regulation of an industry in distinct need of sustained oversight.

What Is Needed Now?

If Pall Mall is to achieve political and legal significance, specific and collective action is required. France and the U.K. need to move forward with urgency and purpose, matching meaningful action with rhetoric. The U.K. and France have not taken any concrete domestic measures to further the goals outlined in the Pall Mall Process nor to regulate spyware or cyber-intrusion more generally – and certainly, nothing close to the steps taken by the U.S. government domestically.

For London, domestic legislative action is critical given the opportunities that lie ahead for a new government with a vast majority to move an ambitious legislative agenda on human rights abuses. The U.K. is now led by a Prime Minister, who, before he assumed office, was regarded as one of the U.K.’s leading human rights lawyers, with a long-standing reputation for upholding the rule of law. The U.K. has made some efforts related to cyber security, most notably through the introduction of the Cyber Security and Resilience Bill and the Digital Information and Smart Data Bill, both of which are still awaiting consideration by the U.K. Parliament. Regrettably, however, neither bill targets commercial spyware or related cyber intrusion technology. Instead, the former is focused on protecting important national infrastructure from ransomware and other cyber-attacks, and the latter deals with data privacy and protection. Presuming the expected timeline holds, both bills might be expected to become law in 2026.

The U.K. should use the legislative opportunities ahead to seek to harmonize national spyware regulation with the basic minimums the PEGA Committee endorsed including transparency, oversight, and accountability as well as specifying procedures to protect human rights through the surveillance lifecycle from design and development through use and transfer.  The U.K. should also adopt a liability-based model in parallel to any export regimes. Adopting a human rights-based approach to surveillance requires regulating the design, use, and transfer of these technologies, but also, as per the U.S. practice of getting tough with abusers, they would be well served by “naming and shaming” companies and individuals using all of the criminal and civil tools at their disposal.

Such initiatives would build on the promising developments regarding State accountability for spyware in the English courts. The Court of Appeal recently held in Shehabi and Mohanned v. Kingdom of Bahrain that Bahrain is not immune under the UK State Immunity Act from claims regarding the use of spyware to infect laptop computers of human rights and pro-democracy activists. This case involved the alleged use of “FinSpy,” produced by the Gamma Group (also known as FinFisher). A previous case found Saudi Arabia was not immune for the alleged use of Pegasus spyware.

For France, a series of opportunities lie ahead in the EU context. Paris can assume an invaluable leadership position by supporting implementation of the PEGA Committee Report and encouraging the EU Polish Presidency starting in January 2025 to lead on spyware regulation given Warsaw’s unique position, having suffered widespread spyware abuse at the hands of the previous Polish government. France can make it a political priority to support updating EU dual use regulations which were described by the PEGA Report as “weak and patchy.” France’s leadership in the Pall Mall Process must extend to the EU where it can build the necessary political will and momentum to ensure that export control regimes are strengthened such that all major exporting nations agree to parallel rules and oversight procedures. For Pall Mall to be concrete and meaningful, France should in parallel endorse and adopt a liability based model of accountability, which would be complementary to any export reforms — something like that which was proposed by the Mandate of the Special Rapporteur for counter-terrorism and human rights in 2023.

Given the current uncertainty around the upcoming U.S. election, the need for other States countries to assume and demonstrate leadership on tackling abusive surveillance technologies is acute.

Having established the partnership and now the process, the French and British have a unique opportunity to join the United States in a fight for the life and health of democracies and civic space worldwide. The U.K.-France Cyber Initiative and the Pall Mall Process are commendable first and early steps, ready to be re-energized, re-focused, and made practical to meet the moment.

IMAGE: Cyber security concept art. (Photo via Getty Images)

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Following years of negotiations, in February 2023, in my capacity as Special Rapporteur on the promotion and protection of human rights while countering terrorism, I carried out the first official UN visit to the Guantanamo detention facility and offered clear recommendations to the U.S. government, including on fair trial guarantees, the treatment of detainees, and victims’ rights.

Here, I reflect on the opportunity lost for the United States to conclude meaningful and rule of law compliant plea agreements, finally redeeming the rights of 9/11 families as a whole and achieving some closure by bringing these cases to an end with an admission of guilt on the part of the defendants, while offering the potential to write a new chapter of international law compliance following decades of torture, cruel, inhuman and degrading treatment at the site and beyond. Instead, decision ping pong highlights the fundamental arbitrariness of all processes pertaining to Guantanamo including the commissions – an arbitrariness that brings unrelenting anguish to many victims, pervades the ongoing detention of the aging and increasingly infirm defendants and remaining detainees, and contravenes the international human rights law obligations of United States.

Victims Deserve Acknowledgement of Reality: Only Pleas will End these Cases

As my report to the General Assembly in October 2023 confirmed:

… the most significant impediment to the fulfilment of the victims’ rights to justice and accountability was the use of torture. Torture was a betrayal of the rights of victims.

Victims of serious violations of international law undeniably have fundamental rights, including truth, justice, reparation and guarantees of non-repetition. But the redemption of those rights in the aftermaths of decades of torture, ill-treatment, and arbitrary detention at Guantanamo is fundamentally compromised due to the absolute prohibition under international law of the admission of torture-derived evidence at any stage of legal proceedings, including pre- and post-trial.  The U.S. government’s long-standing inability to bring these cases to trial and Secretary Austin’s botched response to that obvious reality, underscoring his unwillingness to unflinchingly face the cost of torture, will have the most negative of consequences for victims, denying them what little capacity remains for truth and justice.

Secretary Austin failed to give honest acknowledgement to the 9/11 families of what is now realistically legally possible – not trial but plea agreements. These plea bargains enable some meaningful justice for victims not least because they offer meaningful process, courtroom confrontation, and testimony and are the only available route to conclude a legal process that has no clear end in sight.

While there may be short-term relief for some families who were profoundly uncomfortable with the implementation of a plea agreement, abandoning the executed plea bargains and pushing for unfair trials under international law will simply continue a regime of confinement that brings shame to the United States. Undulating legally compromised litigation makes the United States rightly vulnerable to clear-eyed international condemnation, and fundamentally fails to honour the obligations to victims in the aftermath of the 9/11 terrorist attacks.  A failure to live up to the responsibilities that follow from historic and ongoing torture and/or cruel, inhuman and degrading treatment at the detention facility is not an answer to the rights of victims of terrorism.  As I set out in my End of Mission Statement:

… the severe mental and physical pain and suffering and the cumulative, compounding effects of these identified practices and omissions for the dignity and fundamental rights and freedoms of this detainee population, are reasonably foreseeable … the totality of these factors, without doubt, amounts to ongoing cruel, inhuman, and degrading treatment at the Guantánamo Bay detention facility, and may also meet the legal threshold for torture.

Subsequently in my Annual Report to the General Assembly, I underscored that:

Notwithstanding significant improvements to the material conditions of confinement, the Special Rapporteur expressed serious concerns about the continued detention of (then) 34 men and the systematic arbitrariness that pervaded their day-to-day life, bringing severe insecurity, suffering and anxiety to all, without exception. She concluded that the totality of practices and omissions had cumulative and compounding effects on the dignity and fundamental rights of detainees and amounted to cruel, inhuman and degrading treatment under international law.

These findings were true last year, and they are now further compounded by the ongoing and in some respects increased arbitrariness of the detention regime, added to the compounded unpredictability of  botched decision-making on plea bargains. The psychological consequences of agreeing to a plea agreement with all its consequences followed by its rapid dismissal adds to the finding of cruel, inhuman and degrading treatment for these detainees as a matter of international law.

And to state the blindingly obvious, to agree to a guilty plea eviscerates the possibility of subsequent fair trial, a cornerstone of the International Covenant on Civil and Political Rights to which the United States is a Party.

The bottom line is that Secretary Austin must reinstate these agreements as a matter of urgency not least to ensure that U.S. action in respect of Guantanamo moves closer to international law compliance.

International Law Compliant Plea Agreements

While these plea agreements are not public, it bears reminding that any agreement which is not international human rights law compliant does not solve the compliance gap and accountability deficits of the United States in respect of due process and fair trial at Guantanamo.  There is no rocket science involved here. The international human rights benchmarks of any plea agreement include the following:

• Meaningful consent: The defendants must meaningfully consent to a plea agreement, without coercion or fear.
• Torture rehabilitation for survivors: For torture victim survivors entering a plea agreement, no matter the crime, the state remains under an unremitting obligation to address the harm of torture through adequate, available and acceptable health provision. At Guantanamo this means independent medical care, and revamped medical and detention facilities for the detainees. There can be no internationally compliant plea agreements for torture victim survivors who remain in the long-custody of the state which tortured them without torture rehabilitation.
• Overhaul conditions of confinement: If these men are to remain at Guantanamo to serve out their sentences, the conditions of confinement at Guantanamo require significant overhaul as set out in my Report to the General Assembly, and End of Mission Statement, to prevent unrelenting violations of the jus cogens prohibition on torture, cruel, inhuman and degrading treatment. Guantanamo was and remains defined by arbitrariness in all aspects of its operation, from a lack of transparent SOPs, deficits in human rights training for the Guard Force, profound violations of the right to health, inadequacies in the independence of medical care including lack of access to medical records, profound failures to maintain the right to family life, hampered capacity for lawyers to serve their clients comprehensively and consistently, deficiencies in procedural mechanisms such as the Periodic Review Board, and profound limitations on the right to fair trial.

The sum of these parts means that to ensure that the execution of a plea bargain ends ongoing human rights violations the U.S. government has sizeable work ahead.

The first place to start is to undo the harm of Secretary Austin’s artless withdrawal of the plea agreement. While the Courts may do this work for the political branch, it bears reminding that the exceptionality of Guantanamo continues apace. The United States continues to score ‘own goals’ through its mismanagement of the detention facility.

President Biden and his administration showed courage and conviction to allow a UN visit to the site, but the execution of their promise of international law compliance lies not just in letting someone in. Rather, as an advanced democracy who says its cares about human rights and is defined by them, the U.S. must then implement the recommendations for victims of terrorism and for the victims of torture contained in my report.  Rescinding this plea deal has made that task harder and longer, but it can still be remedied, and a course correction is still possible to help redeem this dark and stained chapter of U.S. history.

Image: This photo was screened by US Military officials on September 7, 2021 and shows a sign for Camp Justice in Guantanamo Bay Naval Base, Cuba (Getty Images).

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Sexual violence has captured press headlines and accountability narratives since Russia began its full-scale invasion of Ukraine in February 2022. But the Ukrainian response to such violence – which seeks to provide both criminal accountability and wider support to survivors – has received far less attention.

Civil society, especially women’s organizations and survivor groups, is leading the charge amid limited State capacity and the devastation of the ongoing all-out war. Yet the scale of the sexual and other gender-based violence (SGBV) will require a comprehensive victim-centred approach as a non-negotiable part of any eventual peace and Ukraine’s post-conflict recovery.

Planning for this form of holistic response requires breaking from old patterns. After all, as other conflict negotiations have shown, the focus on ending public violence between male combatants dominated by ceasefire discussions, amnesty, prisoner exchanges, weapons disarmament and security guarantees has framed conflict, ending sequences in ways that consistently ignore the needs of society as a whole, but women in particular.

Ukraine is proving a different and better way is possible by integrating the needs of victims and survivors directly into the process of peace settlement and ensuring that victims (particularly women) are not side-lined by the dominance of male counterparts and masculine priorities at the negotiation tables to come.

Gender Ideologies and Armed Conflict

As feminist scholars have long argued, understanding the brutality of war in general, and gender-based violence in particular, requires paying close attention to both gender ideologies in society and to the gender and social hierarchies that cross over from peacetime to wartime. Perpetrators’ views of gender, their commanders, and the stance of wider society is crucial for understanding conduct in warfare (see this discussion with lawyer Patricia Sellers at 16:30). These dynamics are evident everyday as Ukraine fights for its survival. What many have identified as rigid gender roles between men and women, media, and political trivialization of violence against women, crackdowns on LGBTQI+ rights, and what appears to be a toxic masculine mindset of many in the Russian leadership have informed an acutely gendered onslaught against Ukrainians, including by means of SGBV.

Russia’s Initial Invasion: 2014-2021

There is emerging and credible evidence that Russia has weaponized SGBV in this armed conflict since its occupation of Crimea and parts of Eastern Ukraine. During the conflict’s initial phase from 2014-2021, conflict-related sexual violence (CRSV) – which includes rape, sexual slavery, forced nudity, and other acts of sexual nature of comparable gravity – received uneven attention both within Ukraine and from international stakeholders. This is not unusual given what we know of other conflicts and the information lag that emerges about SGBV in armed conflict and occupation. In a few CRSV analyses before the full-scale invasion (see here, here, and here), human rights NGOs reported significant CRSV incidents in the occupied territories and in detention facilities, with particular harms inflicted on detained women.

Widespread and credible allegations of rapes, gang rapes, electrocutions and beatings of genitalia, forced nudity, threats of rape to detainees or their family members and unwanted touching have been found and evidence prevalent use of CRSV against Ukrainian women and men, civilians, and prisoners of war. The United Nations issued one report specifically focusing on CRSV in the Russia-Ukraine armed conflict period from 2014-2017. While sexual violence was sometimes noted, the focus on and the awareness of it, both within and outside Ukraine, was meager. Illustratively, Ukraine was not mentioned at all in the U.N. Secretary General 2014-2022 CRSV reports, which rely heavily on demonstrated and verified evidence of CRSV before public allegations are confirmed.

The limitations on CRSV reporting in the Russia-Ukraine conflict correspond to the limitations seen in other conflict zones, particularly the early triggering of conflict. A combination of factors – such as the de facto freezing of the armed conflict in Donbas, which kept much of eastern Ukraine under Russia’s occupation, and impeded access to survivors in occupied Crimea – played a role in this reporting lag. Stigmas around CRSV and lack of awareness about its non-penetrative forms of violence such as forced nudity or threats of rape have also impacted the reporting and, hence, the visibility of and capacity to document CRSV during the first phase of the armed conflict (see paragraph 92 of this International Criminal Court (ICC) report). After 2018, domestic awareness about the need to prosecute intricate CRSV began to slowly build up. In the period before the full-scale invasion, Ukraine’s prosecutors largely focused their efforts on other crimes such as deportations, torture, and persecution, and preparing the first communication on CRSV to the ICC.

The Full-Scale Invasion

CRSV in Ukraine is no longer a hidden crime. Visibility on survivors and the need for accountability has skyrocketed following Russia’s undisguised all-out invasion in February 2022. Gender-based violence (GBV) and particularly sexual violence experienced by women is now at the forefront of conflict reporting and accountability narratives. The Independent International Commission of Inquiry on Ukraine,  which the U.N. Human Rights Council established in 2022 to investigate violations of human rights and international humanitarian law committed in the context of Russia’s aggression, has reported war crimes including sexualized violence.

According to the Commission, Russian servicemen commit CRSV “at gunpoint, with extreme brutality and with acts of torture” against Ukrainian women, men, children, and elderly persons, from 4 to over 80 years old, in occupation, in detention, and during filtration (see paragraphs 567, 574, and 580). Sexual violence appears to be both a tactic of military operations and an unchecked by-product of aggression by Russian forces, demonstrating many of the same patterns seen during the first phase of Russia’s aggression and in multiple conflicts with variations in the forms and patterns of CRSV.

Despite similarities with other conflicts, single-headed female households constitute 93 percent of all such households in Ukraine. This statistic, exacerbated by male conscription, underscores the unique challenges for women managing families, homes, employment, and volunteering in a situation of extremity and harm. Displacement, military activity, and the lack of access to certain territories held by Russia to assess the scope of atrocities mean the vulnerability of women and girls may be under-counted. Russia’s targeted attacks on Ukraine’s healthcare institutions and endangered access to hospitals further disproportionately affect women, in particular pregnant and nursing women, and women struggling to survive in the period after childbirth. Non-existent or impeded prenatal care, complicated deliveries, emergency C-sections, anxiety, and miscarriages (including specific cases caused by occupiers’ rape, see paragraphs 591, 80) are some of the acute consequences faced by Ukrainian women daily (see paragraphs 508, 591, 789-790).

While recognizing that women and girls are disproportionately affected by SGBV, it is critically important to recognize its use against Ukrainian men and boys. While statistics for such violence remain limited, domestic prosecutors, civil society organizations, and international reports confirm that genital violence, sexual humiliation, and penetrative sexual violence has been identified for men primarily occurring during detention. From the Rohingya crisis to the Syrian armed conflict, the stigma for men to report sexual violence in armed conflict is exceedingly high, and the resources to support men targeted by SGBV is limited.

Strategies for Survivors and Holistic Justice

Despite the growing awareness about CRSV in Ukraine, the possibility of prosecuting every perpetrator of more than 131,000 conflict-related crimes remains elusive. There are ongoing challenges to ensuring survivor-based treatment that is adequate to the physical and emotional costs borne from particularly traumatizing experiences such as CRSV, which the war has only exacerbated. Results from other conflicts (from Bosnia to Rwanda) are reminders that criminal accountability for sexual violence is generally limited and that an over-emphasis on carceral responses may mean that insufficient attention is given to reparations including medical, social, and psychological support, which can be life-long for survivors.

Realizing these challenges, Ukraine has been acting on both fronts – pursuing criminal accountability and providing wider support to survivors.

In 2022, Ukraine’s War Crime Unit established a specialized CRSV Department. Led by a female prosecutor, Anna Sosonska, the Department sees CRSV as more than a women’s issue. The team prosecutes sexual violence committed against Ukrainian women, men, and children and prioritizes the well-being and protection of vulnerable victims and witnesses by providing psychological and other support and explaining the intricacies and timeline of the justice process. This support allows survivors to make an informed choice about whether to participate in criminal proceedings. Even though the first rape trial since the full-scale invasion began was held in absentia, it demonstrates the visibility of CRSV and efforts to hold perpetrators to account.

Alongside efforts to promote criminal accountability, Ukraine has been developing transitional justice approaches and, in particular, advancing reparations since 2019. Civil society, especially women’s organizations and survivor groups, have been instrumental in pushing the government to launch urgent interim reparations. The recently announced pilot program will provide one-time €3000 compensation to 500 CRSV survivors and, based on its progress, plans to expand to other victims. The Register of Damage for Ukraine – which became operative in early April 2024 documents evidence and claims of damage, loss, or injury to individuals and the country – accepts claims of harm caused since the all-out invasion.

It remains to be seen how tailored these urgent and wider reparations programs are to various intersecting harms of female, male, child, LGBTQI+, and other CRSV survivors – and when and how these programs become available to other victims of other core international crimes. The coordination of all emerging reparation frameworks is another challenge particularly relevant to ensure holistic and integrated reparation across intersectional categories. Finally, it is paramount that reparations be available for victims harmed since the beginning of Russia’s aggression in 2014 – not just since the full-scale invasion.

Ukrainian women and female survivors are not just persons affected by the war and seeking redress – they are agents of change, on all fronts. One fifth of the Ukrainian Armed Forces is now female. According to the Ukrainian Ministry of Defense as of January 2024, 45,587 women are serving in the Ukrainian army, of whom 4,000 are in combat roles, including as commanders. While gender stereotyping and other challenges remain, it is clear that women are crucial to maintaining Ukraine’s military resistance – and they are here to stay. So too are the LGBTQI+ servicemembers, who have catalyzed an overdue shift in societal and policy thinking about the need to ensure equal rights, including marriage equality. Domestically and internationally, Ukrainian women are running varied volunteering projects, from supplying tactical medicine to facilitating prosthetics for wounded fighters and supporting veterans.

A Female-Led Recovery

It is evident that much of the practical work to support survivors and their families is being led by civil society and by the infrastructure of women’s organizations, including lawyers and other professionals with previous experience in addressing domestic and intimate partner violence.

The scale of the work and the limits of State capacity amid the devastation of the all-out war have required civil society to step up, but this is clearly unsustainable and inadequate in the long run. A durable peace and Ukraine’s recovery need the State’s comprehensive victim-centred approach to SGBV and other international law violations during the armed conflict. Planning for this form of holistic response requires ensuring an equitable outcome for women and depends on women being part of the negotiations at all stages as well as being fully represented in the decision-making processes that will decide the framework for the war’s end and the rebuilding of Ukraine.

Beyond representing survivor voices or being, as the late U.S. Supreme Court Justice Ruth Bader Ginsburg put it, a “one at a time curiosity,” women should be guiding every step of Ukraine’s Peace Formula and recovery. Ukraine’s peace vision is rooted in international cooperation, especially with Global South nations, and seeks restoration of its internationally recognized borders, energy and food security, environmental safety, accountability for atrocity crimes, including the triggering crime of aggression, reparations and prevention.

Decisive female leadership is foundational to the implementation of the Peace Formula and nation’s meaningful in-and post-conflict transformation, which will help “hope and history rhyme” for women and the wider society in a sustained way. Ukraine offers a chance to redeem the Women, Peace and Security Agenda so that it realizes the fundamental right of women to participate in the management and negotiation of conflict – and its prevention. We have had too many global disappointments to accept that the sacrifices made by Ukrainian women would be compounded by their exclusion and marginalization from the decision-making processes that are central for the future lives of women and girls. Ukrainian women and girls demand no less – and they will accept no less.

IMAGE: People clean the memorial to fallen defenders of Ukraine at the Maidan Nezalezhnosti on May 14, 2024 in Kyiv, Ukraine. (Photo by Oleksii Samsonov /Global Images Ukraine via Getty Images)

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But while some harms rightly receive coverage and draw condemnation, other forms of violence are overlooked.  In November 2023, the World Heath Organization estimated that there were 50,000 pregnant women in Gaza. Since the October 7th  Hamas terrorist attack, it is estimated that nearly 20,000 babies have been born into the humanitarian catastrophe that has unfolded in the Gaza strip.

Around the world – from Ukraine to Sudan to Gaza – violence experienced by pregnant civilians, women giving birth, nursing women, and women struggling to survive in the period after childbirth remains entirely at the sidelines of global political conversations.

Joining the show to discuss what experts call “obstetric harms” faced by women and girls in armed conflict and the obligations of combatants in the face of these risks, is Fionnuala Ní Aoláin. Fionnuala is the former U.N. Special Rapporteur on Human Rights and Counterterrorism, and a law professor at the University of Minnesota and at Queen’s University School of Law in Belfast, Northern Ireland. We’re honored to have her as an Executive Editor at Just Security.

Listen to the episode by clicking below.

The post The Just Security Podcast: Harm to Women in War Goes Beyond Sexual Violence: `Obstetric Violence’ Neglected appeared first on Just Security.

The focus on demilitarization leverages gender mainstreaming into the planning and execution of disarmament, demobilization, and reintegration, and addresses the different needs of female and male ex-combatants along with the needs of their dependents. Gender-responsive arms control is firmly linked to the transfer and control of weapons, particularly small arms and light weapons, tackling the underlying conditions that enable their access, circulation, and transfer, and the gendered pathways weapons procurement and management take. Both topics are timely and offer a welcome priority shift in an agenda that has increasingly appeared to be highjacked by some States selectively leveraging CRSV in certain conflicts, a profound failure to address the totality of CRSV in all conflicts equally, and an abject failure to heed the actual needs of victims of sexual violence.

This approach is making no inroads on the global prevention of sexual violence. Ultimately, any difference to the status quo can only be made by rebuilding trust in the commitment of States to the equality of all victims and a meaningful focus on preventing harms and remedying the effects of harm directly for victims. The Security Council can begin that rebuilding this week – if it has the will to start afresh and accept the failure of the current status quo for women.

Not so surprisingly, it turns out that the best way to prevent sexual violence in armed conflict is to prevent conflict. And, if armed conflict is ongoing, then resolving conflict inclusively and expediently will put pause to systemic human rights and humanitarian law violations including sexual violence. The premise that “peace protects” has a long history in the work of feminist transnational activism from the Paris Peace Conference of 1921 onwards but it has regrettably been mostly marginalized in State approaches to the Women, Peace and Security agenda (WPS). Harshly, it might be said that the WPS agenda has abjectly failed in its protection goal, namely the fallacy that giving women access to the Security Council and “security spaces” would end or limit the use of sexual and gender-based violence by combatants, or as two prominent scholars have aptly put it, the “protection racket” has not worked so well for women.

This year has been particularly harrowing for women in armed conflict. While some conflicts – specifically those in Ukraine and Israel – have given rise to some selective attention on penetrative sexual violence, the totality of gender-based violence experienced by men, women, girls, and boys across the spectrum of these conflicts, including obstetric harm, have been largely ignored. Regrettably, the invocation or willingness to highlight sexual violence has appeared strategic and utilitarian. It has failed to address the complexity and lived realities of gender-based violence on the ground. It has utterly failed the victims of violence mostly by commodifying them as useful to certain States and discarding them once the media spotlight has moved on.

In other conflicts and contexts, notably Sudan and Nigeria, conflict-related sexual violence has accelerated and deepened. The fact and scale of widespread and well-documented conflict-related sexual violence in these countries barely makes the international news, and sexual violence in countries like Mali, Iraq, and Syria is side-lined even when these countries make the Security Council agenda. It turns out that certain States care a lot about some victims of sexual violence but not at all about others. Far from being a universal agenda focused on the rights and equality of all women and girls, CRSV has become selective and partisan fodder for States who pick up and discard the political weaponization of sexual violence when it suits them and drop it when it does not.

The U.N. itself has not emerged unscathed from this abject politicization of sexual violence. In one conflict (Israel-Gaza), U.N. Women was essentially gaslit by U.S lawmakers and Israel on its failure to condemn a particular set of horrific acts of sexual violence. But, in no other context or no other conflict before or since – no matter how widespread or egregious the sexual violence against women – has the same call to a specific form of intervention been forced on U.N Women by member States. In fact, it is the daily work of U.N. Women in addressing the inequality experienced by women which might be one of the best bulwarks against the violence that plagues the conduct of hostilities globally. The consistent, underappreciated, and valuable work of U.N. Women has been to focus on country-specific trends and capacity building and work directly to support the victims of gender-based violence and to support States to concretely address their health, justice, and reparation needs. Victims of sexual violence across the globe understand the import of the selectivity directed at U.N. Women. Certain States will politically highlight some victims in some places, will call on U.N. entities to perform condemnation in a certain way in certain contexts, but this rule does not apply equally to all victims of sexual violence.

Most particularly, if nothing changes, it would appear that victims of sexual violence in the global south will rarely be deemed to deserve this form of raised rhetorical status. The violence to those women and girls essentially matters less to powerful and vocal States. Moreover, the abject politicization of the Office of the Special Representative to the Secretary-General on Sexual Violence in Armed Conflict following the visit of the Special Representative Pramila Patten to Israel has weakened its stature globally. The report of that visit, which fails to observe basic rules of adequate investigation and contains a deeply flawed methodology, undermines the rights of all victims of sexual violence across the globe, including those the office was purporting to serve when it undertook its mission to Israel earlier this year. This office may have to live with the long-term consequences of its political commodification and a lack of trust in its even-handedness and professionalism from civil society and experts alike.

How can a Security Council debate this week make a difference given this backdrop?  A debate on prevention, on arms, and on demilitarization is a good step towards righting an agenda that has lost the confidence of those it is meant to serve. The next step must be, consistent with the U.N.’s New Agenda for Peace, a fundamental reappraisal of what it would take to protect women from CRSV and a righting of the Women, Peace and Security Agenda. This would mean addressing the root causes of gender inequality and violence against women in society, it would require the indispensable step of addressing the causes and production of armed conflict. If States can move past selectivity and muster the courage, we may see the first glimmers of what that approach could look like at the Security Council today.

IMAGE: The United Nations Headquarters, in New York city, on Oct. 18, 2023. (Photo by DANIEL SLIM/AFP via Getty Images)

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Positively, this normative and institutional attention has led to increased knowledge of the scale, scope, and extent of sexual and gender-based violence experienced by women during armed conflict. And while the international community should positively affirm the importance of addressing rape in war, the overwhelming focus on penetrative sexual violence (rape) forces attention away from other serious gender-based harms that are widely experienced by women during hostilities. It is critical to evaluate how the severity and cost of this often unseen violence causes the same or greater brutality to women’s bodies and lives, a proposition that few policymakers or States have been prepared to take seriously even as they “talk the talk” about “protecting” women in war.

In fact, a (necessary) focus on sexually violated women displaces and ignores obstetric harm to pregnant, birthing, and post-partum women and girls in war. Recognition and protection are not mutually exclusive trade-offs, there is ample room to address both. It should be possible to advance women’s protection from multiple sources of violence and prioritize the obligations of protection when women are pregnant, give birth, and post-partem. But the reasons for why this rarely happens offer a lesson in the ways that one set of harms (sexual) occludes, excludes, and undermines attention to other (reproductive, obstetric and maternal) harms in war. In particular, given the unique protections set out in the Geneva Conventions and Additional Protocols for maternity, newly born, and young children under the law of war, it is extraordinary that the international community has devoted so little effort to hold States and combatants accountable for their failure to implement these specific obligations. It is also an indictment of the selectiveness of the WPS agenda that while rape in armed conflict makes headlines obstetric violence against women and girls generally does not.

More intangibly, the failure to mobilize shame for targeting violations that make meaningless the protection of women giving birth in destroyed hospitals and clinics; to prioritize access to maternity medications (pregnancy basics like magnesium sulfate for preeclampsia and emergency delivery kits); and to accept miscarriage as an inevitable outcome that follows from targeting decisions in high-density civilian areas (and thus part of the calculation of civilian harm) coldly indicates that protection for maternity is a low-to zero priority for States currently engaged in hostilities. It is a stark reminder that the maternity of women in some conflict zones and the dignity of the children they bear has less value than in others.

Protection of Women and Children under the Law of War

It is well-settled law of war doctrine that women and children hold special protections which trace back to the 1949 Geneva Conventions. These protections include the basic premise that persons will not be treated with “adverse distinction,” including on the basis of sex. This concept of adverse distinction is essentially a non-discrimination clause in the law of war which prohibits the discrimination on multiple grounds. In parallel, complimentary protection exists for women, under Geneva Conventions I and II art. 12; and Convention III, art. 14, which provide that women must be treated “with all consideration due to their sex.”  I have taken issue with this patriarchal and honor-based language elsewhere, but even as I acknowledge that discomfort, it should not take us away from the concurrent need to recognize that aspects of conception, pregnancy, delivery, birth, and post-delivery create inevitable vulnerabilities for women and children.

To that end, States through treaty and custom have determined that privileged treatment can be accorded in certain circumstances to women, and to the children they give birth to (Geneva Convention III, Article 16, and Geneva Convention IV, art 27). Expectant mothers in particular have long been the formal objects of protection under international humanitarian law, from Additional Protocol I which prioritizes their consideration and early release from internment (art. 76), to the law that applies specifically to occupied territory where Geneva Convention IV requires expectant mothers to be given additional food based on their physiological needs (art, 89).

The Situation in Gaza

In the Gaza conflict – which is characterized by intense food insecurity and the failure to ensure an adequate supply of impartial humanitarian assistance – we are clearly a long way away from “extra” food for pregnant women, and instead women and children suffer famine along with an inadequate water supply to the entire civilian population. Given the forced displacement of almost the entire civilian population in Gaza, it may be a surprise Geneva Convention IV (art 127)  specifies that women shall not be transferred if the journey will be “seriously detrimental to them.” And while art. 127 recognizes imperative needs of security, producing mass insecurity which is not proportionate to any expected military advantage, would not be justified under the Convention. Moreover, Convention IV specifies the obligation to provide medical care for pregnant women  (art 91), a practice that has clearly not been honored with over 600 military attacks recorded on hospital and medical facilities by the United Nations in Gaza in early January, and ongoing targeting of medical facilities since then. The destruction of the capacity to provide adequate intensive and operative care for birthing mothers clearly runs afoul of the parties’ clear humanitarian law obligations, rooted historically in the recognition of the vulnerability and necessity of birth for women throughout all wars and throughout all time. It must be said, that reproductive and obstetric violence for Palestinian women is not new, and scholars and experts have long-documented the scale of such violence as women living under occupation navigate birth and maternity under the most arduous circumstances. But the scale of civilian harm, and its consequences for pregnant, nursing, and new mothers is of an unprecedented scale in Gaza.

I also equally recognize that because hostage taking, including of mothers and children, constitutes a fundamental violation of international law and adequate care until release of those abducted is an evident corollary of this heinous act. Regrettably, intense focus on affirming the absoluteness of the hostage prohibition has meant that micro “regulation” of hostage well-being is missing from the law and must be “read-in” from other universal obligations for both non-state and State actors in armed conflict. A rationale for this doctrinal gap is likely that to specifically regulate the obligations of hostage takers would be in some way to accept hostage taking as a tolerated practice, and such regulation offends the “sanctity” of the prohibition. But, the absence of specific obligations leaves hostages vulnerable to further harms when they are denied medical treatment, and not given adequate access to food, water, and other essentials for survival.

I have been struck by the powerful language of U.N. leaders and some States in recent weeks, begging for civilian protection in Gaza. But it is also notable that we see little or no sustained emphasis politically or legally on the experiences of mothers in Gaza, women who are pregnant in Gaza, and women who are giving birth or post partem in Gaza. More precisely we see little invocation of the fundamental norms of protection for women, in the same way that we have seen invocation of norms to (rightly) end sexual violence in armed conflict. This gap is particularly evident from those States who claim to be champions of the WPS agenda or claim to have a feminist foreign policy, a gap which underscores the ongoing concerns about selectivity, double-standards, and inconsistency in the WPS arena.

Some will argue that there are too many categories of vulnerability (e.g. the elderly and the disabled) in war to focus on one specific group. But, given that we have this language of protection for women in the applicable law of war, and that the U.N. Security Council has spent over two decades talking about the WPS agenda and “protection” for women, it is even more noticeable that certain women and certain babies (generally Global North women and children) receive the rhetorical and strident protection of the WPS agenda, and some bodies, babies, and women (generally Global South women and children) do not.

The war in Gaza is a singular case that illustrates the extent to which the violence experienced by pregnant civilians, women giving birth, women nursing small babies, and women struggling (with their babies) to survive post-partum remain entirely at the sidelines of global political conversations about the obligations of combatants, and those legal advisers advising on targeting during hostilities. In November 2023, the World Heath Organization estimated that there were 50,000 pregnant women in Gaza. Since the October 7th  Hamas terrorist attack, it is estimated that nearly 20,000 babies have been born into the humanitarian catastrophe that has unfolded in the Gaza strip. With one baby born every 10 minutes in Gaza, our eyes must be firmly on the protection that international law should offer to these children and their mothers in real time. Instead, maternity is side-lined in this conflict as in others, notable WPS “champions” with influence on the conflict remain silent on the law and the practice, and the world understands that some women get protection and some do not, and there is a tragic historical consistency to those left on the sidelines.

If the WPS agenda is not to morally collapse on its self-inflicted double-standards, certain States who say they care about all women’s lives equally in conflict have to do better. WPS champions including the United States, Canada, Finland, the United Kingdom, Australia, the United Arab Emirates, and Germany must find their political voices and insist on maternal and obstetric protection for women and children in Gaza, not least because they have fundamental international humanitarian law obligations that appear to have been conveniently forgotten in the past four months. That means actually requiring specific compliance by Israel in targeting, civilian protection, civilian object protection, and in the provision of impartial humanitarian assistance to pregnant mothers, nursing mothers, post-partum mothers, and mothers with young children in Gaza.

For those States making headlines with a “sexy” feminist foreign policy the burden is higher. Feminist foreign policies mean very little when mothers and their children are denied both the protection of international humanitarian law and implementation of WPS commitments. For feminists more generally, and particularly for those who have advocated for a highly selective WPS agenda fixated on sexual violence and who have declined to speak out or act upon the totality of violence experienced by women in war, time is up, and that double standard is fully exposed.

IMAGE: An aerial view of buildings destroyed by Israeli air strikes in the Jabalia camp for Palestinian refugees in Gaza City on Oct. 11, 2023. (Photo by YAHYA HASSOUNA/AFP via Getty Images)

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