The Right to Abortion and to Education: Legal Safety Nets for Girls Caught Up in War

Afghan school girl Mette Bastholm/HELMAND PRT/CREATIVE COMMONS
Women and girls living amid conflicts can be subjected to rape as a weapon of war; as victims they are entitled to such legal rights as access to abortion. An Afghan school girl in Helmand Province, above, celebrating International Women’s Day. METTE BASTHOLM/CREATIVE COMMONS

Rape is prevalent in many armed conflicts around the world today. Government security forces, nonstate militias and violent extremists use rape as a weapon of war. Women and girls are disproportionately targeted for such attacks and many endure the foreseeable biological consequence of rape: pregnancy.

Rape of women and girls affects their legal rights as victims of armed conflict. These rights include guaranteed access to abortion. For girls, the provision of safe abortion services is particularly essential because, besides being a stand-alone entitlement, it can significantly impact the other entitlements owed to children, such as their right to education.

As today is the International Day of the Girl Child, it is important to clarify how these entitlements are rooted in international humanitarian law, known as the laws of war, and how they require parties to a conflict to provide “care and aid” to children. These laws have many sources, including the Geneva Conventions, its Additional Protocols and customary international law. Relying on these sources, the care and aid due to children can be distilled into protection from sexual violence and indecent assault; separation from adults (other than family members) while deprived of liberty; access to education; access to food; access to medical care, including abortions; evacuation for safety reasons; and family reunification.

Regardless of which protection we’re discussing, international humanitarian law imposes an obligation of nondiscrimination, meaning no discrimination is allowed in applying the laws of war. No discrimination in medical treatment for males and females, however, does not mean that both sexes must get identical treatment. In fact, when it comes to medical care, favorable sex-based distinctions are required so that the victim receives the best possible treatment. Furthermore, by law, all victims of war must receive the nondiscriminatory “medical care and attention required by their condition.”

For a female rape victim, the restorative, nondiscriminatory medical care required by the condition of unwanted pregnancy must include the option of receiving a safe abortion.

Requiring safe abortions isn’t just a legal issue: providing access to medical care is crucial because of the enormous effect that access to abortions — a form of medical care — can have on a girls’ safety and their development. For example, when girls are not protected from sexual violence and are not given access to abortions, it affects not only their physical and mental health but also their schooling.

A child’s right to education is explicitly guaranteed under Geneva Convention IV (on the protection of civilians) and the additional protocols. Because of an increasing focus on education at the international level, educating children is becoming accepted as a necessary component of humanitarian relief.

While children’s entitlement to an education is also subject to nondiscrimination, it has not been put into practice for millions of girls in and outside war zones. Globally, less than half of all countries have achieved gender parity at the secondary level (which translates into 34 million girls absent from secondary schools), with the gender gap widening as children progress in their education.

Moreover, armed conflicts and displacement have pushed a total of 29 million children out of school.

Girls fortunate enough to be in school are often forced to drop out if they become pregnant. Without an education, girls face a higher risk of severe hardships, such as poverty, forced marriage and complications — even death — from childbirth. Girls who have access to abortions can avoid the lifelong negative consequences of adolescent pregnancy and continue to enjoy their right to education under international humanitarian law.

This is why the few girls who do remain in school in the midst of war must receive access to abortions to enjoy their right to education under international humanitarian law.

Actual on-the-ground provision of care and aid remains a challenge, since parties to a conflict are usually not the best or most reliable source of humanitarian relief. Fortunately, there is a legal safety net: all states, including third-party ones not involved in the conflict, must ensure respect for and stop violations of the rules of war.

Most important, this means that third-party states’ humanitarian services must conform to international humanitarian law to fill voids left by the parties to a conflict. Unfortunately, many states omit abortion services in giving such assistance. This reality is made worse by powerful donors, such as the United States, which wrongfully exclude funding for abortions for rape victims in war.

The care and aid that girls are legally entitled to is meant to protect their safety and development. So their need for access to abortions, in particular, cannot be overemphasized. Without such access, many schoolgirls are forced to abandon their education, closing opportunities for them. For the innumerable girls affected by rape to realize bright futures, parties to a conflict and countries required to provide care and aid in such settings must lift all funding or other restrictions and give girls access to what they need: abortions.

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Anjali Manivannan

Anjali Manivannan

Anjali Manivannan is a human-rights lawyer and was the 2015-2016 legal fellow at the Global Justice Center in New York. She is currently a transitional-justice consultant for the International Coalition of Sites of Conscience. She contributes regularly to human-rights projects on behalf of People for Equality and Relief in Lanka and the Media Foundation for West Africa. Manivannan has a law degree from New York University and a B.S. in physics from the University of Virginia.

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