All but the Death Penalty: Incomplete Protection for Civilian Internee Mothers

Abstract How did unrecognised gender biases impact the codification of international humanitarian law (IHL)? While recent studies on IHL have highlighted historical lawmaking processes, little research has examined gender biases behind the codification of the “Protection of Women” in the Geneva Conventions and additional protocols. This study examines gender biases and state interests reflected in the codification process by focusing on Article 76§3 of the 1977 Protocol Additional I, which incompletely protects civilian women internees who are pregnant or have dependent children by prohibiting execution but leaving room for pronouncement of the death penalty. Referring to the theory of benevolent sexism, I argue that the codification of preferential protection for interned mothers reflects ideas essentialising women as weak protectees by default. Such benevolent protection of mothers likely ceases when conflicts arise with state interests in maintaining discretion over women whose behaviour exceeds the traditional boundaries of gender roles.