International Humanitarian Law (IHL)

Citation:

Wells, Sarah L. 2004. “Crimes Against Child Soldiers in Armed Conflict Situations: Application and Limits of International Humanitarian Law.” Tulane Journal of International and Comparative Law 12: 287-305.

Author: Sarah L. Wells

Abstract:

This article examines the application of international humanitarian law to crimes committed against child soildiers during the ten-year civil war in Sierra Leone. The author suggests that while historically, developments in international law took account of the vulnerability of children in wartime, international humanitarian law maintains that dated categories of protection do not reflect conditions of modern armed conflicts. The author argues that, instead, the experiences of child soldiers suggest that international legal prohibitions on the involvement of children in combat provide vastly inadequate legal protection. The author relies in this respect on research on crimes committed against child combatants in Sierra Leone and the limitations of international humanitarian law in relation to the prosecution of those crimes. The author argues that in order to remain relevant and effective, new developments in the field of international humanitarian law must address dated and inaccurate distinctions, which act to preclude needed legal protection of those among the most vulnerable in wartime. 

Topics: Armed Conflict, Combatants, Child Soldiers, Gender, International Law, International Humanitarian Law (IHL), Justice, International Tribunals & Special Courts Regions: Africa, West Africa Countries: Sierra Leone

Year: 2004

Citation:

Halley, Janet. 2008. “Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict.” Melbourne Journal of International Law 9 (1): 78–124.

Author: Janet Halley

Topics: Armed Conflict, Feminisms, Gender, International Law, International Criminal Law, International Humanitarian Law (IHL), Justice, Crimes against Humanity, International Tribunals & Special Courts, War Crimes, Sexual Violence, Rape Regions: Europe, Central Europe Countries: Germany

Year: 2008

Citation:

Mazurana, Dyan. 2005. Women in Armed Opposition Groups in Africa and the Promotion of International Humanitarian Law and Human Rights. Switzerland: Geneva Call.

Author: Dyan Mazurana

Abstract:

This report retraces the exchanges and recommendations conducted at the 2005 conference held in Addis Ababa on how women combatants can help promote humanitarian and human rights norms. Two members of the ICRC  took part as facilitators in this conference organised by the NGO Geneva Call and which gathered 40 women currently or recently involved in armed opposition groups from a dozen sub-Saharan African countries.

Topics: Armed Conflict, Combatants, Female Combatants, Gender, Women, International Law, International Humanitarian Law (IHL), Military Forces & Armed Groups, Non-State Armed Groups, Rights, Human Rights Regions: Africa

Year: 2005

Citation:

Schaack, Beth. 2010. “‘The Grass That Gets Trampled When Elephants Fight’: Will the Codification of the Crime of Aggression Protect Women?” 10-10, School of Law, Santa Clara University, Santa Clara, CA.

Author: Beth Schaack

Abstract:

This article analyzes the outcome of the Kampala process with an eye toward the rarely-considered gender aspects of the crime of aggression, whether or not the provisions adopted represent an advancement for women, and how aspects of feminist theory might interpret the new regime. The article concludes that any impact of the provisions will inevitably be limited by gaps and ambiguities in the definition of the crime and the jurisdictional regime, which is premised on state consent and exempts non-states parties altogether. At the same time, the insertion of the crime of aggression in the Rome Statute enables the prosecution of a wider range of acts, and actors, that cause harm to women and makes actionable harm to women that may not rise to the level of war crimes or crimes against humanity and that has historically been rendered juridically invisible by the collateral damage euphemism. Extending the reach of international criminal law may generate indirect negative effects from the interaction of the Court’s potential to prosecute the crime of aggression and the long-standing jus in bello, that body of rules governing how war is waged rather than why war is waged, which is the purview of the jus ad bellum. By penalizing the resort to armed force, the threat of prosecution of the crime of aggression may undermine incentives to comply with key doctrines within international humanitarian law that serve to protect civilians and other vulnerable groups.

It also remains to be seen whether the codification of the crime of aggression will serve any deterrent purpose whatsoever when governmental leaders contemplate using force – offensively or defensively – in their international relations, especially in situations that do not implicate exigent sovereign threats. To the extent that the new provisions do exert a restraining effect, the expansive way in which the crime has been defined may end up chilling those uses of force that are protective and thus more discretionary, such as uses of force employed pursuant to the nascent doctrine of responsibility to protect. The crime may thus result in more ex post prosecutions at the expense of ex ante efforts at preventing and repressing violence. Whether this over-deterrence argument should be raised on behalf of women, however, requires an acceptance of the legitimacy, if not lawfulness, of humanitarian intervention with or without Security Council approval and a coming to terms with a certain valorization of militarism and its inherent masculinities – a perspective that is alien to much feminist thinking.

The International Criminal Court (ICC) has yet to demonstrate that it can fulfill its current mandate. Operationalizing the crime of aggression without allocating additional resources to enable the Court to prosecute this controversial, largely unprecedented, and qualitatively different crime may distract the Court from responding more effectively to the “atrocity crimes” that now finally address gender-based violence more directly. The crime may also encourage the Court to focus on leaders in capital cities rather than the warlords next door, whom victims more directly associate with atrocities and without whose prosecution it may be impossible to achieve complete justice for women. Given the potential to reach top political leaders, the crime may be also subject to abuse. The amendments approved in Kampala will eventually permit states parties to refer each other to the ICC as alleged violators of the prohibition against aggression. Misuse of this referral authority could render the Court little more than just another forum for states to manipulate and exploit in order to advance their interests. Such an outcome would politicize and de-legitimate the Court.

At this early stage in the life of the Court and in the absence of any concrete experience investigating or prosecuting the new crime of aggression, these bases for criticism and praise are inherently speculative. Applying a feminist perspective to the codification of the crime of aggression yields no easy conclusions. Rather, reasoning through the central question of whether the codification of the crime in the ICC Statute will be good for women produces a dizzying spiral of dialectical reasoning. And so, as a feminist, I approach the crime with a profound ambivalence.

Topics: Armed Conflict, Feminisms, Gender, Women, International Law, International Criminal Law, International Humanitarian Law (IHL), Justice, Crimes against Humanity, War Crimes, Military Forces & Armed Groups

Year: 2010

Citation:

Oosterveld, Valerie. 2009. “Feminist Debates on Civilian Women and International Humanitarian Law.” Windsor Yearbook Access to Justice 27 (2): 385–402.

Author: Valerie Oosterveld

Abstract:

International humanitarian law [IHL] provisions address the situation of civilian women caught in armed conflict today, but is this law enough? Feminist commentators have considered this question and have come to differing conclusions. This article considers the resulting debate as to whether female-specific IHL provisions are adequate but underenforced, or inadequate, outdated and in need of revision. One school of thought argues that the main impediment to the protection of female civilians during hostilities is lack of observance of existing IHL. A second school of thought believes that something more fundamental is needed to meet the goal of protecting civilian women during war: revision and reconceptualization of IHL to take into account systematic gender inequality. This article considers the status of this debate within three areas of IHL considered by many to be central legal aspects of the experience of female civilians caught in armed conflict the general non-discrimination provisions, the specific protection for civilian women against sexual violence and the specific protection of pregnant women and mothers. It concludes that, while there has been a vibrant debate within feminist circles on the adequacy of existing IHL provisions, mainstream action has tended to focus on enforcement. This is unfortunate, as it means that certain insights into the impact of deep gender inequalities on conflict have largely been left unexplored.

Topics: Armed Conflict, Feminisms, Gender, Women, Gendered Power Relations, Gender Equality/Inequality, International Law, International Humanitarian Law (IHL), Sexual Violence

Year: 2009

Citation:

Eaton, Shana. 2004. “Sierra Leone: The Proving Ground for Prosecuting Rape as a War Crime.” Georgetown Journal of International Law 35 (4): 873–919.

Author: Shana Eaton

Topics: Armed Conflict, Gender, Women, International Law, International Humanitarian Law (IHL), Justice, War Crimes, Post-Conflict, Rights, Human Rights, Women's Rights, Sexual Violence, Rape, SV against Women Regions: Africa, West Africa Countries: Sierra Leone

Year: 2004

Citation:

Dixon, Rosalind. 2002. “Rape as a Crime in International Humanitarian Law: Where to from Here?” European Journal of International Law 13 (3): 697–719.

Author: Rosalind Dixon

Abstract:

Topics: Feminisms, Gender, International Law, International Criminal Law, International Humanitarian Law (IHL), Justice, International Tribunals & Special Courts, Reparations, War Crimes, Sexual Violence, Rape

Year: 2002

Citation:

Reynolds, Sarnata. 1998. "Deterring and Preventing Rape and Sexual Slavery during Periods of Armed Conflict."  Law and Inequality 16: 601. 

Author: Sarnata Reynolds

Topics: Armed Conflict, International Law, International Criminal Law, International Humanitarian Law (IHL), Justice, Sexual Violence, Rape, Sexual Slavery

Year: 1998

Citation:

Zawati, Hilmi M. 2007. “Impunity or Immunity: Wartime Male Rape and Sexual Torture as a Crime against Humanity.” Torture: Quarterly Journal on Rehabilitation of Torture Victims and Prevention of Torture 17 (1): 27–47.

Author: Hilmi M. Zawati

Abstract:

This paper seeks to analyze the phenomenon of wartime rape and sexual torture of Croatian and Iraqi men and to explore the avenues for its prosecution under international humanitarian and human rights law. Male rape, in time of war, is predominantly an assertion of power and aggression rather than an attempt on the part of the perpetrator to satisfy sexual desire. The effect of such a horrible attack is to damage the victim's psyche, rob him of his pride, and intimidate him. In Bosnia- Herzegovina, Croatia, and Iraq, therefore, male rape and sexual torture has been used as a weapon of war with dire consequences for the victim's mental, physical, and sexual health. Testimonies collected at the Medical Centre for Human Rights in Zagreb and reports received from Iraq make it clear that prisoners in these conflicts have been exposed to sexual humiliation, as well as to systematic and systemic sexual torture. This paper calls upon the international community to combat the culture of impunity in both dictator-ruled and democratic countries by bringing the crime of wartime rape into the international arena, and by removing all barriers to justice facing the victims. Moreover, it emphasizes the fact that wartime rape is the ultimate humiliation that can be inflicted on a human being, and it must be regarded as one of the most grievous crimes against humanity. The international community has to consider wartime rape a crime of war and a threat to peace and security. It is in this respect that civilian community associations can fulfill their duties by encouraging victims of male rape to break their silence and address their socio-medical needs, including reparations and rehabilitation.

Keywords: sexual torture, male rape, wartime rape, gender crimes, Croatia, Iraq

Annotation:

Quotes:

"Male rape in times of war is predominantly an assertion of power and aggression rather than an expression of satisfying the perpetrator’s sexual desire." (33)

"When war finally came to an end in the former Yugoslavia, the medical records of health care centres provided evidence of male rape and sexual torture of Croatian and Bosnian Muslim men including castration, genital beatings, and electroshock." (34)

"This paper provides three kinds of potential remedies available for addressing the needs of Croatian and Iraqi wartime male rape victims: legal remedies, remedies within the United Nations system, and psycho-social remedies within civil community associations." (34)

"We should combat the culture of impunity in both dictator-ruled and democratic countries by bringing the crime of wartime rape into the international arena, and by removing all barriers to justice facing the victims. Moreover, we should emphasize the fact that wartime rape is the ultimate humiliation that can be inflicted on a human being, and it must be regarded as one of the most grievous crimes against humanity. The international community has to consider wartime rape a crime of war and a threat to peace and security. It is in this respect that civilian community associations can fulfill their duties by encouraging victims of male rape to break their silence and address their socio-medical needs, including reparations and rehabilitation." (40)

Topics: Armed Conflict, Gender, Men, Gendered Power Relations, Health, Mental Health, Trauma, International Law, International Human Rights, International Humanitarian Law (IHL), Justice, Crimes against Humanity, War Crimes, Military Forces & Armed Groups, Security, Sexual Violence, Rape, SV against Men, Sexuality, Sexual Torture Regions: MENA, Asia, Middle East, Europe, Balkans, Eastern Europe Countries: Bosnia & Herzegovina, Croatia, Iraq

Year: 2007

Citation:

Campbell, Kirsten. 2002. “Legal Memories: Sexual Assault, Memory, and International Humanitarian Law.” Signs: Journal of Women in Culture and Society 28 (1): 149–76.

Author: Kirsten Campbell

Topics: Gender, International Law, International Humanitarian Law (IHL), Sexual Violence

Year: 2002