Printer-friendly versionSend by emailPDF version

International Criminal Law

Towards a Gender-Inclusive Definition of Child Soldiers: The Prosecutor v. Thomas Lubanga

Citation:

Gallagher, Kristin. 2010. “Towards a Gender-Inclusive Definition of Child Soldiers: The Prosecutor v. Thomas Lubanga.” Eyes on the ICC 7: 115–36.

Author: Kristin Gallagher

Abstract:

This article addresses the importance of the first case before the International Criminal Court through the lens of gender analysis. While the charges against the defendant in The Prosecutor v. Thomas Lubanga Dyilo are limited to conscripting and enlisting child soldiers and using them actively in hostilities, the case has huge precedential value because it will be the first decided before the International Criminal Court. This article argues for a broad interpretation of the law so that female child soldiers receive protection and recognition under the law.

Topics: Armed Conflict, Combatants, Child Soldiers, Gender, Girls, Boys, Gender Analysis, International Law, International Criminal Law Regions: Africa

Year: 2010

'Paper Protection' Mechanisms: Child Soldiers and the International Protection of Children in Africa's Conflict Zones

Citation:

Francis, David J. 2007. “‘Paper Protection’ Mechanisms: Child Soldiers and the International Protection of Children in Africa’s Conflict Zones.” The Journal of Modern African Studies 45 (2): 207–31.

Author: David J. Francis

Abstract:

The arrest and prosecution in March 2006 of the former Liberian warlord-President Charles Taylor by the UN-backed Special Court for Sierra Leone, for war crimes including the recruitment and use of child soldiers, and the arrest and prosecution of the Congolese warlord, Thomas Lubanga Dyilo, by the International Criminal Court, accused of enlisting child soldiers in the DRC war, have raised expectations that finally international conventions and customary international laws protecting children in conflict zones will now have enforcement powers. But why has it taken so long to protect children in conflict situations despite the volume of international treaties and conventions? What do we know about the phenomenon of child soldiering, and why are children still routinely recruited and used in Africa's bloody wars? This article argues that against the background of unfolding events relating to prosecution for enlistment of child soldiers, the international community is beginning to wake up to the challenge of enforcing its numerous 'paper protection' instruments for the protection of children. However, a range of challenges still pose serious threats to the implementation and enforcement of the international conventions protecting children. Extensive research fieldwork in Liberia and Sierra Leone over three years reveals that the application of the restrictive and Western-centric definition and construction of a 'child' and 'childhood' raises inherent difficulties in the African context. In addition, most war-torn and post-conflict African societies are faced with the challenge of incorporating international customary laws into their domestic laws. The failure of the international community to enforce its standards on child soldiers also has to do with the politics of ratification of international treaties, in particular the fear by African governments of setting dangerous precedents, since they are also culpable of recruitment and use of child soldiers.

Topics: Armed Conflict, Combatants, Child Soldiers, Gender, Girls, Boys, International Law, International Criminal Law Regions: Africa

Year: 2007

Advancing International Criminal Law: The Special Court for Sierra Leone Recognizes Forced Marriage as a ‘New’ Crime against Humanity

Citation:

Frulli, Micaela. 2008. “Advancing International Criminal Law: The Special Court for Sierra Leone Recognizes Forced Marriage as a ‘New’ Crime against Humanity.” Journal of International Criminal Justice 6 (5) : 1033–42.

Author: Micaela Frulli

Abstract:

The Appeals Chamber of the Special Court for Sierra Leone (SCSL) in Brima, Kamara and Kanu recognized that forced marriages may amount to crimes against humanity, falling under the sub-heading of ‘other inhumane acts’. This decision is to be welcomed because the practice of forced marriage is not adequately described by existing categories of sexual crimes. As forced conjugality results in particular psychological and moral suffering for the victims, it is argued that this heinous practice may be more appropriately pursued as a separate crime, under a definition that describes the entirety and complexity of the criminal conduct. The SCSL decision may also be important for its impact on the activities of the International Criminal Court (ICC). The widespread practice of forced marriage presently features in all the situations being investigated by the ICC and the inclusion in the ICC Statute of the offence of forced marriage as a separate crime against humanity could be discussed during the Review Conference in 2009.

Topics: Armed Conflict, International Law, International Criminal Law, Justice, Crimes against Humanity, International Tribunals & Special Courts, Sexual Violence Regions: Africa, West Africa Countries: Sierra Leone

Year: 2008

The Special Court for Sierra Leone, Child Soldiers, and Forced Marriage: Providing Clarity or Confusion

Citation:

Oosterveld, Valerie. 2007. “The Special Court for Sierra Leone, Child Soldiers, and Forced Marriage: Providing Clarity or Confusion.” Canadian Yearbook of International Law 45: 131.

Author: Valerie Oosterveld

Topics: Armed Conflict, Combatants, Child Soldiers, International Law, International Criminal Law, Justice, International Tribunals & Special Courts, Sexual Violence Regions: Africa, West Africa Countries: Sierra Leone

Year: 2007

Forced Marriage: Rwanda’s Secret Revealed

Citation:

Kalra, Monika Satya. 2001. “Forced Marriage: Rwanda’s Secret Revealed.” U.C. Davis Journal of International Law & Policy 7: 197.

Author: Monika Satya Kalra

Abstract:

The author of this article argues that the Office of the Prosecutor (OTP) of the International Criminal Tribunal for Rwanda (ICTR) should charge forced marriage as a crime of sexual violence. Part I explores sexual violence during the 1994 Rwandan genocide adn the phenomenon of forced marriage. Part II addresses the importance of charging perpetrators with the crime of forced marriage and the role the OTP has in ensuring justice is done. Finally, Partly III discusses the legal framework for prosecuting forced marriage under the ICTR Statute. Finally, Part IV offers recommendations for trying and investigating the crime (Women's Human Rights Resources Database). 

Topics: Genocide, International Law, International Criminal Law, Sexual Violence, SV against Women Regions: Africa, Central Africa, East Africa Countries: Rwanda

Year: 2001

‘Other Inhumane Acts’: Forced Marriage, Girl Soldiers and the Special Court for Sierra Leone

Citation:

Park, Augustine S. J. 2006. “‘Other Inhumane Acts’: Forced Marriage, Girl Soldiers and the Special Court for Sierra Leone.” Social & Legal Studies 15 (3): 315–37.

 

Author: Augustine S. J. Park

Abstract:

The decade-long civil war in Sierra Leone gained international notoriety for the widespread use of child soldiers, and the sexual abuse and ‘forced’ marriage of girl soldiers. For the first time in international legal history, ‘forced marriage’ is being prosecuted as a ‘crime against humanity’ in Sierra Leone’s post-conflict ‘Special Court’. This represents an important step in advancing the human rights of girls, and follows a growing trend in international criminal prosecution of gender offences. Notwithstanding the significance of this indictment, international law is no panacea for the deeper inequalities and vulnerabilities that girls experience in peacetime and in wartime. This article advocates a specific focus on girls, who are often ‘disappeared’ under discourses of children and women. Moreover, using recommendations from Sierra Leone’s Truth and Reconciliation Commission, this article attempts to point to social and economic inequalities that must be addressed alongside criminal prosecution of gendered crimes against humanity.

Topics: Armed Conflict, Combatants, Child Soldiers, Female Combatants, Gender, Girls, Gender-Based Violence, Gendered Power Relations, Gender Equality/Inequality, International Law, International Criminal Law, Justice, Crimes against Humanity, International Tribunals & Special Courts, TRCs, Military Forces & Armed Groups, Militaries, Post-Conflict, Sexual Violence, Sexual Exploitation and Abuse, SV against Women Regions: Africa, West Africa Countries: Sierra Leone

Year: 2006

“The Grass That Gets Trampled When Elephants Fight”: Will the Codification of the Crime of Aggression Protect Women?

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

The Crime of Aggression and Humanitarian Intervention on Behalf of Women

Citation:

Schaack, Beth. 2011. “The Crime of Aggression and Humanitarian Intervention on Behalf of Women.” International Criminal Law Review 11 (3): 477–93.

Author: Beth Schaack

Abstract:

This article is part of a larger project to analyse the rarely-considered gender aspects of the crime of aggression and to explore whether or not the amendments adding the crime of aggression to the Statute of the International Criminal Court (ICC) represent an advancement for women. This piece focuses on the potential for the new provisions to chill bona fide exercises of humanitarian intervention given that (1) the crime is expansively drafted to potentially cover all uses of sovereign force, (2) delegates rejected efforts by the United States to include an express exception for military operations launched to prevent the commission of other crimes within the jurisdiction of the ICC, and (3) other proposals that would have prevented humanitarian interventions from being considered ‘acts of aggression’ were not fully explored or implemented. The article acknowledges that feminist theory may never fully come to terms with a notion of humanitarian intervention given the doctrine’s valorisation of militarism, especially in light of the fact that women are so often excluded from decisions about uses of force. It nonetheless argues that if we want to hold out the possibility of humanitarian intervention being deployed in defense of women, elements of the new provisions (such as the terms ‘manifest’, ‘character’, ‘gravity’, and ‘consequences’) should be interpreted to exclude situations involving the nascent responsibility to protect doctrine.

Topics: Feminisms, Gender, Women, Humanitarian Assistance, International Law, International Criminal Law, Military Forces & Armed Groups, Militarism

Year: 2011

Rape at Rome: Feminist Interventions in the Criminalization of Sex Related Violence in Positive International Criminal Law

Citation:

Halley, Janet. 2008. “Rape at Rome: Feminist Interventions in the Criminalization of Sex Related Violence in Positive International Criminal Law.” Michigan Journal of International Law 30: 1–123.

Author: Janet Halley

Topics: Feminisms, Gender, Women, International Law, International Criminal Law, Justice, International Tribunals & Special Courts, Sexual Violence

Year: 2008

Pages

© 2021 CONSORTIUM ON GENDER, SECURITY & HUMAN RIGHTSLEGAL STATEMENT All photographs used on this site, and any materials posted on it, are the property of their respective owners, and are used by permission. Photographs: The images used on the site may not be downloaded, used, or reproduced in any way without the permission of the owner of the image. Materials: Visitors to the site are welcome to peruse the materials posted for their own research or for educational purposes. These materials, whether the property of the Consortium or of another, may only be reproduced with the permission of the owner of the material. This website contains copyrighted materials. The Consortium believes that any use of copyrighted material on this site is both permissive and in accordance with the Fair Use doctrine of 17 U.S.C. § 107. If, however, you believe that your intellectual property rights have been violated, please contact the Consortium at info@genderandsecurity.org.

Subscribe to RSS - International Criminal Law