Full Description
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.
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
1.1.1.1. Brief review of national definitions
1.1.1.2. International definitions: two definitions of rape
looking at the technical description of the act
1.1.2. Feminist Critique Regarding These Definitions
1.1.2.1. A broad definition? Still centred on penetration
1.1.2.2. Gender-neutrality
1.2. The Lack of Consent
1.2.1. The Lack of Consent in National Law
1.2.1.1. A subjective/objective point of view
1.2.1.2. Brief overview of the definition of the word
'consent' in domestic jurisdictions
1.2.2. The Lack of Consent: International Law
1.2.2.1. Rule 96 of the ICTY
1.2.2.2. 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
2.2.3.1. The extraction of information or confession
2.2.3.2. The punishment for an act the person has
committed or is suspected to have committed
2.2.3.3. The intimidation of the person or of another
2.2.3.4. Discrimination of any kind
2.2.4. Torture and State Responsibility
2.2.4.1. State responsibility for acts committed by State
agents
2.2.4.2. 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
5.1.2.1. Sexual offenses as a means to terrorise the
population
5.1.2.2. 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
5.2.1.1. International and national public order
5.2.1.2. Raped women versus the individual raped
woman
5.2.2. 'Gendercide' and 'Genocidal Rape'
5.2.2.1. Gendercide
5.2.2.2. Genocidal rape
5.2.3. Sexual Offenses as Acts of Genocide
5.2.3.1. Actus reus
5.2.3.2. The intent
Conclusion
Bibliography
Index
