Sexual Offenses in Armed Conflict and International Law available in Hardcover
- Pub. Date:
- Brill Academic Publishers, Inc.
Noëlle N.R. Quénivet has constructed a valuable tool for navigating the morass of sexual offences and international law. Using Bosnia-Herzegovina a jumping off point, she proceeds to show how, over the last two decades, the Western world has been swept up by a wave of feminist scholars writing about international law and more particularly humanitarian and human rights law. Although these articles, books and statements have covered a broad range of issues, the focus has been on sexual offences and, more specifically, on rape in times of conflict. These authors, as well as NGOs supporting their ideas, have made a series of assumptions concerning sexual offences in times of armed conflict. On the basis of these presumptions, they have claimed inter alia that international law does not adequately prohibit sexual offences and that prosecution is scarce. This timely work examines whether the assumptions made by feminist scholars are solidly grounded in international law and whether their claims are still valid regarding the latest legal developments. A thorough examination of the laws and the jurisprudence relating to sexual offences demonstrates that whereas before the creation of the ad hoc international criminal tribunals some of their claims were founded, these claims are now partially ill-founded.Published under the Transnational Publishers imprint.
About the Author
Noëlle N.R. Quénivet is a researcher at the Institute for International Law of Peace and Armed Conflict.
Table of Contents
TABLE OF CONTENTSPreface / Acknowledgments / IntroductionChapter 1. Defining Sexual Offenses: Acts and Consent1.1. Describing the Technicality of the Act1.1.1. Legal Definitions188.8.131.52. Brief review of national definitions184.108.40.206. International definitions: two definitions of rapelooking at the technical description of the act1.1.2. Feminist Critique Regarding These Definitions220.127.116.11. A broad definition? Still centred on penetration18.104.22.168. Gender-neutrality1.2. The Lack of Consent1.2.1. The Lack of Consent in National Law22.214.171.124. A subjective/objective point of view126.96.36.199. Brief overview of the definition of the word‘consent’ in domestic jurisdictions1.2.2. The Lack of Consent: International Law188.8.131.52. Rule 96 of the ICTY184.108.40.206. The jurisprudence of the ICTYChapter 2. Rape and Other Forms of Sexual Offensesas Torture and Other Forms of Ill-Treatment2.1. Rape and Other Sexual Offenses as Violations ofOne’s Physical Integrity2.1.1. Reaching the Threshold2.1.2. Distinction Between the Different Types of Ill-Treatment2.2. Sexual Offenses as Torture2.2.1. The Prohibition of Sexual Offenses as Torture2.2.2. The ‘Public Official’ Element2.2.3. The Purpose of Torture and the Function of SexualOffenses220.127.116.11. The extraction of information or confession18.104.22.168. The punishment for an act the person hascommitted or is suspected to have committed22.214.171.124. The intimidation of the person or of another126.96.36.199. Discrimination of any kind2.2.4. Torture and State Responsibility188.8.131.52. State responsibility for acts committed by Stateagents184.108.40.206. State responsibility for acts committed by non-State agents2.3. Violations of One’s Physical Integrity, Individual Liabilityand Sexual Offenses2.3.1. The Protection of One’s Physical Integrity UnderInternational Humanitarian Law2.3.2. The Irrelevance of the Public/Private Divide inInternational Criminal Law2.4. General CriticismChapter 3. Sexual Offenses as Violations ofInternational Humanitarian Law3.1. A Crime That has Never Been Prosecuted3.2. A Crime That is Not a Crime3.2.1. Confusing the Notions of ‘Prohibition’ and of‘Protection’3.2.2. Confusing the Notions of ‘Grave Breach’, ‘War Crime’and Violations of International Humanitarian Law3.2.3. Other Provisions Relevant for the Prosecution ofSexual Offenses3.3. The Power of the Prosecution of Sexual Offenses inTimes of Armed ConflictChapter 4. Sexual Offenses as Crimes Against Humanity4.1. Women as Civilians4.2. The Persecutory/Discriminatory Element of CrimesAgainst Humanity4.2.1. The Definition of ‘Persecution’/‘Discrimination’4.2.2. Ethnicity as the Discrimination Ground and notGender4.2.3. The Link Between Ethnicity and Gender4.3. The ‘Widespread and Systematic’ Element of the Crime4.3.1. Crimes Against Humanity as Mass Crimes4.3.2. The Policy Behind These RapesChapter 5. Sexual Offenses as Acts of Genocide5.1. Genocide and Ethnic Cleansing5.1.1. The Relation Between Genocide and EthnicCleansing5.1.2. Sexual Offenses as Ethnic Cleansing220.127.116.11. Sexual offenses as a means to terrorise thepopulation18.104.22.168. Sexual offenses as a means to humiliate thecommunity5.2. Sexual Offenses as Acts of Genocide5.2.1. Preliminary Remarks on the Discourse of Genocide22.214.171.124. International and national public order126.96.36.199. Raped women versus the individual rapedwoman5.2.2. ‘Gendercide’ and ’Genocidal Rape’188.8.131.52. Gendercide184.108.40.206. Genocidal rape5.2.3. Sexual Offenses as Acts of Genocide220.127.116.11. Actus reus18.104.22.168. The intentConclusionBibliographyIndex