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International Criminal Law

Peacekeepers as Perpetrators: Sexual Exploitation and Abuse of Women and Children in the Democratic Republic of the Congo

Citation:

Notar, Susan A. 2006. “Peacekeepers as Perpetrators: Sexual Exploitation and Abuse of Women and Children in the Democratic Republic of the Congo.” American University Journal of Gender, Social Policy and the Law 14 (2): 413-429.

Author: Susan A. Notar

Topics: Armed Conflict, Gender, International Law, International Criminal Law, International Organizations, Justice, Peacekeeping, Sexual Violence, Sexual Exploitation and Abuse Regions: Africa Countries: Democratic Republic of the Congo

Year: 2006

Gender Mainstreaming in International Institutions: Developments at the UN ad hoc Tribunals and the International Criminal Court

Citation:

Chappell, Louise. 2005. “Gender Mainstreaming in International Institutions: Developments at the UN ad hoc Tribunals and the International Criminal Court.” Paper presented at the Annual Meeting of the International Studies Association, Honolulu, March 5.

Author: Louise Chappell

Abstract:

In recent years women's activists have worked hard to add a gender dimension to the workings of emerging international institutions including the UN ad hoc tribunals on the former Yugoslavia and Rwanda and the International Criminal Court. Through their efforts they have made some significant advances in bringing to light the complex, diverse and unique aspects of women's lives previously ignored in international criminal and humanitarian law. Advances include: the recognition of sexual violence as a grave breach of international law relating to war crimes, crimes against humanity and genocide; the redefinition of the crime of rape and the acknowledgment of gender as a basis for persecution. Feminist pressure has also helped to encourage an acceptance of the representation of women and gender interests within the ICC. Although there is still much to be done, feminist activists have demonstrated that there is a place for 'women's interests' under international law and that by taking these interests into account can make a real difference to women's lives in times of conflict.

Topics: Armed Conflict, Feminisms, Gender, Women, Gender Mainstreaming, International Law, International Criminal Law, International Humanitarian Law (IHL), International Organizations, Justice, Crimes against Humanity, International Tribunals & Special Courts, War Crimes, Sexual Violence, Rape Regions: Africa, Central Africa, East Africa, Europe, Balkans Countries: Rwanda, Yugoslavia (former)

Year: 2005

Women, Gender and International Institutions: Exploring New Opportunities at the International Criminal Court

Citation:

Chappell, Louise. 2003. “Women, Gender and International Institutions: Exploring New Opportunities at the International Criminal Court.” Policy and Society 22 (1): 3–25. doi:10.1016/S1449-4035(03)70011-3.

Author: Louise Chappell

Abstract:

Traditionally women have been constructed in very limited terms under international law. They have been defined through their relationships with either men or with children. Moreover, the types of crimes experienced by women in times of armed conflict, including rape and other forms of sexual violence, have been categorised as less egregious than those experienced by men. In recent years feminists have sought to challenge the existing definition of women, drawing attention to the serious nature of gender-based crimes. They have done this through their engagement with new international institutions including the UN ad hoc tribunals for Yugoslavia and Rwanda and the development of the statute for the International Criminal Court (ICC). Through their efforts they have made some significant advances in bringing to light the complex, diverse and unique aspects of women’s lives previously ignored in international criminal and humanitarian law. Although there is still much to be done, feminist activists have demonstrated that the law and its influence are not fixed but dynamic and open to change.

Topics: Armed Conflict, Feminisms, Gender, Women, Gender-Based Violence, International Law, International Criminal Law, International Humanitarian Law (IHL), International Organizations, Justice, International Tribunals & Special Courts, War Crimes, Sexual Violence, Rape, SV against Women Regions: Africa, Central Africa, East Africa, Europe, Balkans Countries: Rwanda, Yugoslavia (former)

Year: 2003

Rape in War: Lessons of the Balkan Conflicts in the 1990s

Citation:

Kennedy-Pipe, Caroline, and Penny Stanley. 2000. “Rape in War: Lessons of the Balkan Conflicts in the 1990s.” International Journal of Human Rights 4 (3-4): 67–84.

Authors: Caroline Kennedy-Pipe, Penny Stanley

Abstract:

The Balkan wars of the 1990s were critical in bringing the issue of rape & more particularly the phenomenon of mass rape onto the political agenda in the West. For the first time, mass rape in war is now an indictable crime, giving the impression that the human rights of women are now taken seriously. Yet, as the article argues, although the crime of mass rape has been recognized by audiences in the West, there are grave weaknesses in the processes of how we deal with rape as a crime of war. Evidence of mass rape is liable to distortion & reliable evidence is hard to come by, at least for the standards required by proper judicial process. The attempts by the Hague tribunal to indict & try perpetrators of rape have not helped our understanding of why men rape, & indeed have tended to homogenize all rape in war as politically motivated. The Balkan Wars reveal that rape in war has multiple causes, as well as a variety of consequences.

Topics: Armed Conflict, Gender, Women, Gender-Based Violence, International Law, International Criminal Law, Justice, International Tribunals & Special Courts, War Crimes, Rights, Human Rights, Sexual Violence, Rape Regions: Europe, Balkans

Year: 2000

Feminism and Its (Dis)contents: Criminalizing Wartime Rape in Bosnia and Herzegovina

Citation:

Engle, Karen. 2005. “Feminism and Its (Dis)contents: Criminalizing Wartime Rape in Bosnia and Herzegovina.” The American Journal of International Law 99 (4): 778–816.

Author: Karen Engle

Abstract:

This article critically examines early feminist debates over the treatment of rape in Bosnia and Herzegovina, and traces their resonances in the structure and jurisprudence of the ICTY. Observing that problematic assumptions about ethnic identity and women's sexual and political agency emerged in the debates and ultimately wove their way into the ICTY's legal treatment of rape, the article argues that the international criminalization of rape might be neither as pathbreaking nor as progressive as the doctrinal recognition might suggest.

Topics: Ethnicity, Feminisms, Gender, Women, International Law, International Criminal Law, Justice, International Tribunals & Special Courts, War Crimes, Sexual Violence, Rape Regions: Europe, Balkans, Eastern Europe Countries: Bosnia & Herzegovina

Year: 2005

Sexual Violence as a Weapon of War in International Humanitarian Law

Citation:

Park, Jennifer. 2007. “Sexual Violence as a Weapon of War in International Humanitarian Law.” International Public Policy Review 3 (1): 13–18.

Author: Jennifer Park

Abstract:

Sexual violence as a weapon of war targets individuals not only on the basis of group membership, but also uniquely on the basis of gender. Despite substantial increases in occurrence during warfare, international and national mechanisms have largely neglected the impact of sexual violence in hindering peace and obscuring perceptions of security among population groups. The failure to clearly recognise sexual violence as a weapon of war has resulted in impunity, in turn affecting the likelihood of future outbreaks of conflict. To prevent further negligence, the establishments of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have made notable progress toward reconceptualising sexual violence as a weapon of war. This paper highlights and evaluates the innovations made by the ICTY and the ICTR towards recognising the issue of sexual violence as a threat to international peace and security in international law.

Topics: International Law, International Criminal Law, International Humanitarian Law (IHL), Justice, International Tribunals & Special Courts, Security, Sexual Violence, SV against Women Regions: Africa, Central Africa, East Africa, Europe, Balkans Countries: Rwanda

Year: 2007

A Woman Scorned for the "Least Condemned" War Crime: Precedent and Problems with Prosecuting Rape as a Serious War Crime in the International Criminal Tribunal for Rwanda

Citation:

Wood, Stephanie K. 2004. “A Woman Scorned for the ‘Least Condemned’ War Crime: Precedent and Problems with Prosecuting Rape as a Serious War Crime in the International Criminal Tribunal for Rwanda.” Columbia Journal of Gender and the Law 13: 274–327.

Author: Stephanie K. Wood

Abstract:

The woman scorned is Pauline Nyiramasuhuko, Rwanda's Former Minister for Women's Affairs, who is currently on trial at the International Criminal Tribunal for Rwanda ("ICTR") for allegedly using her official capacity to incite Hutus to rape thousands of female Tutsis during the 1994 Rwanda Genocide. (1) She is the first woman to be charged with rape as a crime against humanity by an international tribunal. (2) The 1994 Rwanda Genocide had devastating effects on the female population in the country due to the systematic gender-based violence endorsed and carried out by government officials. (3) Almost one million people were killed in one hundred days (4) and, according to some reports, nearly all female survivors--including many young girls (5)--were raped and sexually brutalized. (6) While these crimes are neither historically nor geographically unique to the 1994 Rwanda Genocide, (7) the ICTR's efforts in prosecuting gender-based violence as crimes against humanity and tools of genocide have been unprecedented. (8) Rape warfare, although common throughout history, has traditionally been the least condemned war crime. Although not without criticism, (9) the ICTR shattered historical ambivalence toward gender-based violence by indicting and prosecuting Rwandan officials who countenanced rape as a method of warfare during the genocide. (10) The first step in shattering this ambivalence occurred with the prosecution of Jean Paul Akayesu, (11) a mayor in the Taba Commune, (12) who also sanctioned massive sexual violence against Tutsi women. With the Prosecutor v. Akayesu (13) decision, the ICTR became the first international war crimes tribunal to convict an official for genocide and to declare that rape could constitute genocide. (14) Pressure from women's groups, coupled with cooperation and support coming from within the ICTR, led to the watershed decision linking sexual violence to the genocide in Rwanda. (15) However, the ICTR's handling of the Akayesu and Nyiramasuhuko cases also reveal a failure to adequately investigate and indict the gender-based violence sanctioned by the government during the genocide before trial, deficiencies in handling witnesses during the investigation and trial stages, and delays affecting the delivery of justice to survivors. These deficiencies must be addressed and corrected in order to maintain the Tribunal's legitimacy, protect women's human rights, and build upon the jurisprudence condemning rape warfare as genocide. An assessment of the ICTR's deficiencies is especially timely given that the tenth anniversary of the genocide occurred in April 2004. Although the Akayesu conviction and the Nyiramasuhuko prosecution have significant precedential value, the problems encountered by the ICTR in indicting and prosecuting gender-based violence should be lessons for future prosecutions in the international community. (16) Recognition of rape as a serious war crime represents only the first step in creating the deterrent necessary to combat future impunity. Assessing the past in order to improve the effectiveness of future prosecutions for rape warfare is imperative as women of all ages, races, colors, creeds, and ethnicities continue to be raped during armed conflicts. (17) Effective prosecutions will lead to more convictions, which will in turn translate into a legal vindication of women's human rights in the international community. (18) This article argues that while the ICTR has established an important precedent in prosecuting gender-based violence as crimes against humanity and tools of genocide, its deficiencies illustrate the continued straggle to enforce international norms protecting women from violence during armed conflict. (19) Without improvements in three specific areas, the potency of the ICTR's groundbreaking decisions will become diluted and less likely to be applied by other legal bodies, to further the objective of enforcing women's human rights, and to lead to greater deterrence of gender-based violence. Part II of this article discusses the gender-based violence that occurred during the 1994 Rwanda Genocide and addresses the historic ambivalence toward prosecuting rape as a war crime or crime against humanity. This ambivalence demonstrates a lack of implementation and enforcement of the legal norms protecting women's human rights. (20) Part III emphasizes the significance of the first international conviction of rape as a condemnable war crime, while highlighting the need for improvements in order to ensure more effective prosecution of gender-based violence. The cases of two prominent Rwandan officials--Akayesu and Nyiramasuhuko--are discussed in this regard. Part III also explains how the ICTR's progressive precedent on sexual violence is being tarnished by the Tribunal's continuing failure to adequately indict perpetrators for commission of gender-based crimes, a widening divide between the need for legal justice and survivors' interests, and excessive delays that are diluting the credibility of legal justice as a deterrent. Part IV concludes with three major recommendations to the ICTR directed at improving the Tribunal's prosecution of gender-based violence and preserving its legitimacy as a source of international condemnation and deterrence. II. BACKGROUND While violence against women occurs every day worldwide, (21) women are particularly vulnerable to gender-based violence (22) during armed conflict. (23) International norms (24) protect women from gender-based violence in theory, (25) but adequate norm development requires implementation and enforcement by the international community in order to transform theory into practice. (26)

Topics: Armed Conflict, Gender, Women, Gender-Based Violence, Genocide, International Law, International Criminal Law, Justice, International Tribunals & Special Courts, War Crimes, Sexual Violence, Rape Regions: Africa, Central Africa, East Africa Countries: Rwanda

Year: 2004

Rethinking Yamashita: Holding Military Leaders Accountable for Wartime Rape

Citation:

Joseph, Joshua. 2007. "Rethinking Yamashita: Holding Military Leaders Accountable for Wartime Rape." Women's Rights Law Reporter 28 (2/3): 107-25.

Author: Joshua Joesph

Abstract:

This note explores the current controversy over the proper international standard for punishing commanders whose subordinates have committed rape, and examines the interplay between the nature of rape, the underlying theories of command responsibility, and an international legal system that has failed to produce fruitful results. The note contends that the continued occurrence of rape in times of war results in large part from the international community’s reluctance to punish high-level military officials who neither physically perpetrated the crime, were not present at the crime scene, and did not necessarily order rape.

The note proposes a slight expansion of the “knowledge presumption” standard used by early courts, whereby general, historical knowledge of rape would satisfy the mens rea requirement of command responsibility. Such a standard would make it easier to prosecute wartime military leaders. In addition, the note will propose a series of measures that military officials can use to both deter the commission of rape by subordinates and rebut the knowledge presumption. Finally, the note examines how the International Criminal Court could use such a standard to punish commanders for the atrocities currently under investigation in Darfur.

The note is particularly relevant and timely because widespread mass rape has been reported in the region of Darfur and is currently under investigation by ICC prosecutors. It is likely that the ICC will hear many of the cases involved in this dispute in the near future. Many of these cases will force the Court to examine its standard for punishing commanders whose subordinates have engaged in rape crimes.

Topics: Armed Conflict, Gender, Gender-Based Violence, International Law, International Criminal Law, Justice, Military Forces & Armed Groups, Militaries, Sexual Violence, Rape Regions: Africa, Central Africa, East Africa, Asia, East Asia Countries: Japan, Rwanda

Year: 2007

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