International Law and Sexual Violence in Armed Conflicts

Copyright

Contents

Acknowledgments

Foreword

Prologue

Introduction

Chapter 1: Aetiology of Evil in Armed Conflicts

The Evil of War

A General Review of Human Capacity for Evil in Armed Conflicts

The Situational Theory of Evil

Hanna Arendt

Zygmunt Bauman, Stanley Milgram and Philip Zimbardo

The Dispositional Theory of Evil

Daniel Goldhagen

C Fred Alford

The Narcissistic Theory of Evil

The Eclectic Theory of Evil

Aetiology of Evil Viewed in the Context of the Law

Intent as Limiting the Theories of Aetiology of Evil

Uses in the Post-Conflict Quest for Justice and Reconciliation

Human Capacity for the Evil of Sexual Violence in Armed Conflicts

A Legislative Fact Amply Proved

Aetiology of the High Frequency of Sexual Violence during Armed Conflicts

The Theory of Inevitability of Sexual Violence during Armed Conflicts

An Evolutionary Theory of Rape

The Theory of Opportunism of Sexual Violence during Armed Conflicts

The Theory of Deliberate Policy of Sexual Violence during Armed Conflicts

Sexual Violence Traditionally Articulated as Policy

Sexual Violence Not Often Articulated as Policy—Systematic Connivance or Condonation

Conclusion

Chapter 2: Superior Responsibility for the Rape of Women during Armed Conflicts

Introduction

The Law as It Should Be

The Law as It Is

The Requirement of Knowledge

Routes around the Difficulties of the Lex Lata

Joint Criminal Enterprise

Much Ado About Joint Criminal Enterprise

Ordering

Planning and Instigating

Aiding and Abetting

Arguable Limits of Routes around the Difficulties of the Lex Lata

Superior Responsibility and the Duty to Punish

Conclusion

Chapter 3: Defining Rape in International Criminal Law: An Unsettled Tug of War?

Introduction

Primary Focus on the Violence of the Occasion

Reversion to Focus on Body Parts and Consent

Caught between Violence and Body Parts

Rape Law Reform in Domestic Jurisdictions

The Problems with Kunarac

Conclusion

Chapter 4: Rape as Genocide and Some Questions Arising

Introduction

Rape as Genocide in Light of the Debate regarding Intent to Destroy the Group in Whole or in (Substantial) Part

The Effect of the Debate on the Concept of Rape as Genocide

Joint Criminal Enterprise and Rape as Genocide

Conclusion

Chapter 5: Armed Conflicts, Sexual Violence and the Mens Rea of the War Crime of Terrorism

Introduction

The Conventional Source of the War Crime of Terrorism

The Origins of the Jurisprudence of Specific Intent

Terrorism and the Mens Rea of Sexual Slavery

(a) The Primary Purpose of Spreading Terror and the Nature and Circumstances of the Acts

(b) The Multi-Purpose Approach

(c) A Holistic View of Attack: A Campaign of Terror

Terrorism and Specific Intent: a Matter of General Principle

A Purposive Analysis of Terrorism as War Crime

Subjective and Objective Examination of Primary Purpose of Attack

The Statute of Rome on the War Crime of Terrorism

Conclusion

Chapter 6: Internal Armed Conflicts, Sexual Violence and ‘Grave Breaches’

Introduction

Defining ‘War Crimes’

‘Serious Violations’ and ‘Grave Breaches’

Conclusion

Chapter 7: Forced Marriage—an International Crime?

Introduction

The Judgment of the Special Court for Sierra Leone

A Proper Subject of International Criminal Law

A Recognised Crime in International law?

Evidential Problems of the SCSL Appeal’s Chamber’s Reasoning

Doctrinal Problems of the SCSL Appeal’s Chamber’s Reasoning

Forced Marriage and other Gender-oriented Crimes against Humanity

Forced Marriage versus Sexual Slavery

Forced Marriage versus Trafficking in Persons

Conclusion

Chapter 8: Prosecution of Sexual Violence against Women in Post-Conflict Societies

Introductory: A Question of Choices?

The Importance of Sexual Violence Prosecution

Post-Conflict Social (Re)Engineering as an Objective of the Prosecution Strategy

The Need to Avoid Double Victimisation of Women

Conclusion

Chapter 9: Reparation for Female Victims of Sexual Violence in Armed Conflicts

Introduction

The Theoretical Bases for Reparation

(i) The Fault Basis for Reparation

Regarding Chorzów Case as a Reference for Reparation

Other Juristic Anchors for Reparation for Human Rights Violations

(ii) Fault resulting from Actions

(iii) Fault resulting from Omission

(a) Fault resulting from Omissions of State of Nationality in respect of State Agents

(b) Responsibility to Protect and National State’s Omissions Regarding Rogue Agents of State and Non-State Actors

(c) National State’s Omissions Regarding Non-State Actors

(d) Diplomatic Protection and National State’s Omissions Regarding Foreign States

Armed Conflicts and Diplomatic Protection

Diplomatic Protection as a Question of Duty on the National State

(e) The International Community and Fault resulting from Omissions

(iv) A No-Fault Basis for Reparation

The Special Focus on Female Victims

Conclusion

Epilogue

Summary of the Study

A Note of Optimism

Bibliography

Index