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.
Noëlle N.R. Quénivet is a researcher at the Institute for International Law of Peace and Armed Conflict.
Awarded Honorable Mention by the Francis Lieber Society of ASIL in March 2006. “This book is highly recommendable for academics dealing with the prosecution of sexual offences under international law. . . . [I]t is a book that will intrigue the reader, holding his/her attention right through to the end. . . . [I]t should not be missed on the shelves of international humanitarian lawyers and those dealing with the prosecution of international offences.” Roberta Arnold, Heidelberg Journal of International Law, Vol. 67, No. 1 (2007): 258-59.
Table of contents
TABLE OF CONTENTS Preface / Acknowledgments / Introduction Chapter 1. Defining Sexual Offenses: Acts and Consent 1.1. Describing the Technicality of the Act 1.1.1. Legal Definitions 184.108.40.206. Brief review of national definitions 220.127.116.11. International definitions: two definitions of rape looking at the technical description of the act 1.1.2. Feminist Critique Regarding These Definitions 18.104.22.168. A broad definition? Still centred on penetration 22.214.171.124. Gender-neutrality 1.2. The Lack of Consent 1.2.1. The Lack of Consent in National Law 126.96.36.199. A subjective/objective point of view 188.8.131.52. Brief overview of the definition of the word ‘consent’ in domestic jurisdictions 1.2.2. The Lack of Consent: International Law 184.108.40.206. Rule 96 of the ICTY 220.127.116.11. The jurisprudence of the ICTY Chapter 2. Rape and Other Forms of Sexual Offenses as Torture and Other Forms of Ill-Treatment 2.1. Rape and Other Sexual Offenses as Violations of One’s Physical Integrity 2.1.1. Reaching the Threshold 2.1.2. Distinction Between the Different Types of Ill- Treatment 2.2. Sexual Offenses as Torture 2.2.1. The Prohibition of Sexual Offenses as Torture 2.2.2. The ‘Public Official’ Element 2.2.3. The Purpose of Torture and the Function of Sexual Offenses 18.104.22.168. The extraction of information or confession 22.214.171.124. The punishment for an act the person has committed or is suspected to have committed 126.96.36.199. The intimidation of the person or of another 188.8.131.52. Discrimination of any kind 2.2.4. Torture and State Responsibility 184.108.40.206. State responsibility for acts committed by State agents 220.127.116.11. State responsibility for acts committed by non- State agents 2.3. Violations of One’s Physical Integrity, Individual Liability and Sexual Offenses 2.3.1. The Protection of One’s Physical Integrity Under International Humanitarian Law 2.3.2. The Irrelevance of the Public/Private Divide in International Criminal Law 2.4. General Criticism Chapter 3. Sexual Offenses as Violations of International Humanitarian Law 3.1. A Crime That has Never Been Prosecuted 3.2. A Crime That is Not a Crime 3.2.1. Confusing the Notions of ‘Prohibition’ and of ‘Protection’ 3.2.2. Confusing the Notions of ‘Grave Breach’, ‘War Crime’ and Violations of International Humanitarian Law 3.2.3. Other Provisions Relevant for the Prosecution of Sexual Offenses 3.3. The Power of the Prosecution of Sexual Offenses in Times of Armed Conflict Chapter 4. Sexual Offenses as Crimes Against Humanity 4.1. Women as Civilians 4.2. The Persecutory/Discriminatory Element of Crimes Against Humanity 4.2.1. The Definition of ‘Persecution’/‘Discrimination’ 4.2.2. Ethnicity as the Discrimination Ground and not Gender 4.2.3. The Link Between Ethnicity and Gender 4.3. The ‘Widespread and Systematic’ Element of the Crime 4.3.1. Crimes Against Humanity as Mass Crimes 4.3.2. The Policy Behind These Rapes Chapter 5. Sexual Offenses as Acts of Genocide 5.1. Genocide and Ethnic Cleansing 5.1.1. The Relation Between Genocide and Ethnic Cleansing 5.1.2. Sexual Offenses as Ethnic Cleansing 18.104.22.168. Sexual offenses as a means to terrorise the population 22.214.171.124. Sexual offenses as a means to humiliate the community 5.2. Sexual Offenses as Acts of Genocide 5.2.1. Preliminary Remarks on the Discourse of Genocide 126.96.36.199. International and national public order 188.8.131.52. Raped women versus the individual raped woman 5.2.2. ‘Gendercide’ and ’Genocidal Rape’ 184.108.40.206. Gendercide 220.127.116.11. Genocidal rape 5.2.3. Sexual Offenses as Acts of Genocide 18.104.22.168. Actus reus 22.214.171.124. The intent Conclusion Bibliography Index