Hidden Constructs of Sexual Victimization of Men and Boys in Armed Conflict: Prosecutorial and Jurisdictional Trajectories of the International Criminal Courts and Tribunals

2020 ◽  
Vol 1 (1) ◽  
pp. 87-112
Author(s):  
Tamara Frunse
Keyword(s):  
Sexual Violence ◽  
Armed Conflict ◽  
International Criminal ◽  
International Criminal Law ◽  
Male Victims ◽  
Criminal Courts ◽  
Community Members ◽  
Academic Literature ◽  
Criminal Jurisprudence ◽  
The Individual

During armed conflict, sexual violence against women regularly takes on different forms than against the male gender. Frequently, men and boys are attacked either by coercion to witness sexual violence committed against their family and community members, or to rape and sexually assault others. The shared feature of both forms of such victimization is that they rarely constitute an attack on the individual alone. Instead, they are utilized by perpetrators as a war tactic to debase entire communities. Protection for male victims of these forms of sexual violence is limited due to a disconnect between formal statutory provisions under International Criminal Law (ICL) criminalizing sexual violence and the jurisprudential interpretation thereof. The jurisprudence of the international criminal courts and tribunals has been widely criticized in academic literature for misclassifying sexual harm against men and accommodating it incoherently under various provisions other than the explicit sexual violence norms. The prosecutorial and jurisprudential dichotomy partly originates in the lack of clarity surrounding these selected forms of sexual violence. In light of their devastating impact on men and boys, this article aims to map the inconsistencies within and between selected international criminal courts and tribunals and prompts to rethink current international criminal jurisprudence to coherently address and condemn such forms of sexual violence.

scholarly journals Towards an Intersectional Understanding of Conflict-Related Sexual Violence: Gender, Sexuality, and Ethnicity at the ICTY

2018 ◽  
Vol 18 (5) ◽  
pp. 853-882
Author(s):  
Maike Isaac ◽  
Olga Jurasz
Keyword(s):  
Sexual Violence ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
International Criminal Law ◽  
Male Victims ◽  
Cultural Dynamics ◽  
The Past ◽  
Yugoslav Wars ◽  
Gender Based

In the past 25 years, the International Criminal Tribunal for the former Yugoslavia (ICTY) has contributed significantly to a more sophisticated understanding of conflict-related sexual violence (CRSV) in international criminal law. The ICTY’s jurisprudence has broken new ground in relation to the prosecution of CRSV, but also has brought to light the multifaceted challenges associated with the prosecution of such crimes at an international level. Whilst cases heard by the ICTY have addressed both CRSV committed against women and men, there exist significant differences in the ways in which the ICTY has approached the experiences of male victims of sexual violence during the Yugoslav Wars. We therefore analyse the extent to and ways in which the ICTY has fostered the understanding of CRSV as gender-based violence that is embedded into the socio-cultural dynamics of the community within which the violence occurs.

scholarly journals Protecting Children from Sexual Violence in Armed Conflict under International Humanitarian Law

2019 ◽  
Vol 10 (2) ◽  
pp. 217-239
Author(s):  
Elina Almila
Keyword(s):  
Sexual Violence ◽  
Armed Conflict ◽  
International Criminal ◽  
Case Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Criminal Courts ◽  
Gradual Improvement ◽  
International Courts ◽  
Special Protection

Children enjoy special protection from the harms of armed conflict under international humanitarian law. While the protection of children in armed conflict has been widely researched with regard to recruitment and use of children in armed conflict, the research on protection of children from sexual violence has received less attention. In this paper I look at the protection of children in relation to sexual violence under international humanitarian law and its actualisation in the practise of international criminal courts and tribunals. I consider first how the protection of children from sexual violence under international humanitarian law made its way to Conventions. Second, I explore the case law of sexual violence as a war crime in international courts and tribunals and how the special protection of children is reflected in the case law. I argue that despite a gradual improvement, the provisions of the Conventions have not been recognised particularly well. While there have been cases in which more attention has been paid to sexual violence against children, the practice is mostly incoherent and sporadic: there exists a discrepancy between the Conventions, and the practice of international criminal courts and tribunals.

Sexual Violence and the Relevance of the Doctrine of Superior Responsibility in the Light of the Katanga Judgment at the International Criminal Court

2015 ◽  
Vol 84 (4) ◽  
pp. 533-579 ◽  
Author(s):  
Linnea Kortfält
Keyword(s):  
Sexual Violence ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Criminal Courts ◽  
Potential Benefits ◽  
Superior Responsibility

In this article, I set out to investigate the interplay between sexual violence and various linking theories in international criminal law. I will demonstrate some of the possibilities and shortcomings of various modes of liability available to the International Criminal Court with regard to cases involving sexual violence. In so doing it is necessary to thoroughly explain and discuss the potential reasoning of the Court in these matters. Since the case against Germain Katanga presents a perfect illustration of the distinction in application and analysis of the modes of liability with regard to sexual violence as opposed to other crimes, the reasoning provided in said judgment will be used as a springboard for such an analysis. Therefore the background to the case against Katanga will firstly be presented and the modes of liability as used in this particular case will subsequently be scrutinised. Considering the fact that Katanga was acquitted of sexual violence, this investigation will mostly demonstrate the deficiencies of these modes of liability and in the vacuum left after such an analysis, I will show the potential benefits of utilising the doctrine of superior responsibility in cases involving sexual violence. In my opinion, though fraught with complexities, this doctrine presents the perfect avenue to prosecute the higher echelons of organisations, i.e., the persons that international criminal courts and tribunals are intent on convicting, for sexual violence in particular. Thus, the aim of this article is to highlight the potential benefits of utilising broad charging strategies and more particularly, the importance of including the doctrine of superior responsibility, in sexual violence cases.

scholarly journals Crimes of Sexual Violence within International Criminal Law: A Historical Outline

2020 ◽  
Vol 14 (1) ◽  
pp. 1
Author(s):  
Miranda Das ◽  
Sukhdev Singh
Keyword(s):  
Sexual Violence ◽  
Criminal Law ◽  
Armed Conflict ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Critical Examination ◽  
Sexual Crimes ◽  
International Criminal Tribunals ◽  
Historical Outline

This article will provide a synoptic historical outline of international criminal law (ICL) from a gender perspective. An effort is made to highlight the landmark stages in the evolution of the ICL, particularly in its treatment of rape and other sexual crimes perpetrated against women during armed conflict. For this purpose, a critical examination of Nuremberg and Tokyo tribunals, criminal tribunals for Yugoslavia and Rwanda as well as Special Court for Sierra Leone, and the International Criminal Court is attempted. Endeavour is to outline the gender and sexual crimes jurisprudence developed by the above mentioned international criminal tribunals as well as courts, and then to examine its effectiveness in prosecuting crimes of rape and sexual violence carried out against women. An analysis of what might have gone wrong within the ICL in dealing with rape and crimes of sexual nature is also attempted.

scholarly journals The Classification of Armed Conflicts by International Criminal Courts and Tribunals

2020 ◽  
Vol 20 (4) ◽  
pp. 595-668
Author(s):  
Rogier Bartels
Keyword(s):  
Armed Conflict ◽  
Ad Hoc ◽  
International Criminal ◽  
Legal Framework ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
Classification Problems ◽  
Criminal Courts ◽  
Comprehensive Overview ◽  
Scope Of Application

This article analyses how international criminal courts and tribunals have pronounced on the contextual elements of their respective war crimes provisions. A comprehensive overview of the way these institutions treated the material scope of application of ihl shows that the ad hoc tribunals tended to avoid classification as either international or non-international armed conflict​, and merely found that a generic ‘armed conflict’ existed at the relevant​ time. The icc shows a tendency to classify situations as non-international armed conflicts without considering whether the situation concerned may instead (or at the same time) qualify as an international armed conflict. Non-international​ armed conflict is often, mistakenly, treated as a residual regime. Incorrect conflict classification may​ affect ihl’s scope of application, and negatively impact on an accused’s fair trial​ rights under international criminal law. The author proposes a fresh look at the​ icc’s legal framework to solve conflict classification​ problems.

The ‘Soul of an Army’: A Defence of Military Court Trials for Violations of the Law of Armed Conflict

2020 ◽  
pp. 1-33
Author(s):  
Conor Donohue
Keyword(s):  
Criminal Law ◽  
Armed Conflict ◽  
International Criminal ◽  
Large Body ◽  
International Criminal Law ◽  
Service Members ◽  
Legal Basis ◽  
International Forum ◽  
Military Justice ◽  
Law Of Armed Conflict

Military justice as a body of law was subject to much criticism in the preceding decades before undergoing significant reforms to ensure that fair trial rights could be achieved. However, modern military justice systems are appropriate mechanisms for addressing law of armed conflict (LOAC) violations committed by service members. It is argued that the goals of military justice are consistent with LOAC, and that military justice has a valid legal basis to try violations. Such trials have a large body of precedent. The purported disadvantages of military trials are sufficiently mitigated to prevent cover-ups and unfair trials. Furthermore, military justice offers several benefits that cannot be achieved in a civilian or international forum. It is concluded that although military legal systems are imperfect, their role in the enforcement of international criminal law is worthy of further debate.

The “Kouwenhoven” Case

2019 ◽  
Vol 181 ◽  
pp. 568-704
Keyword(s):  
Criminal Law ◽  
Armed Conflict ◽  
International Criminal ◽  
Criminal Liability ◽  
Criminal Activity ◽  
War Crimes ◽  
International Criminal Law ◽  
Post Conflict ◽  
Arms Embargo ◽  
Witness Statements

Economics, trade and finance — Economic sanctions — Liberia — UN Security Council Resolutions 1343 (2001) and 1408 (2002) — Implementation of arms embargo under Dutch law — Whether sanctions regime violatedInternational criminal law — Difference between perpetrator and accomplice liability — Complicity in war crimes — Requirement that defendant promoted or facilitated the commission of war crimes — Conditional intent — Whether defendant consciously accepted the probability that war crimes would be committed in connection with his material support — Risk of doing business with a government engaged in international criminal activityInternational criminal law — Evidence — Admissibility and weight of witness statements — Factors relevant to assessing witness statements obtained in post-conflict environment — Coercion of witnesses — Whether inconsistencies in witness statements requiring acquittalInternational criminal law — Circumstances excusing unlawful conduct — National emergency — Whether violations of arms embargo and laws and customs of war justified by right to self-defence under international lawJurisdiction — Universal jurisdiction — War crimes — Prosecution of a Dutch national for offences committed abroad — Whether conduct of investigation by Dutch authorities making prosecution inadmissible — Whether amnesty scheme in Liberia barrier to prosecution — No violation of fair trial rightsWar and armed conflict — Existence of armed conflict — Whether armed conflict international or internal — Limited gap between norms applicable to international versus non-international armed conflict — Whether violations of laws and customs of war giving rise to individual criminal liability under Dutch law — The law of the Netherlands

Judicial Lawmaking, Discourse Theory, and the ICTY on Belligerent Reprisals

2011 ◽  
Vol 12 (5) ◽  
pp. 1261-1278 ◽  
Author(s):  
Milan Kuhli ◽  
Klaus Günther
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Individual Case ◽  
Criminal Court ◽  
Discourse Theory ◽  
Criminal Courts ◽  
Normative Expectations ◽  
Judicial Lawmaking ◽  
The Individual

Without presenting a full definition, it can be said that the notion of judicial lawmaking implies the idea that courts create normative expectations beyond the individual case. That is, our question is whether courts' normative declarations have an effect which is abstract and general. Our purpose here is to ask about judicial lawmaking in this sense with respect to international criminal courts and tribunals. In particular, we will focus on the International Criminal Tribunal for the Former Yugoslavia (ICTY). No other international criminal court or tribunal has issued so many judgments as the ICTY, so it seems a particularly useful focus for examining the creation of normative expectations.

The Formation of a Customary International Crime: Global Terrorism Human (In) Security

2015 ◽  
Vol 15 (4) ◽  
pp. 665-699 ◽  
Author(s):  
Noemi Gal-Or
Keyword(s):  
Armed Conflict ◽  
International Criminal ◽  
International Crime ◽  
Customary Law ◽  
International Criminal Law ◽  
General Assembly ◽  
The Past ◽  
Peace And Security ◽  
Global Terrorism ◽  
Definition Of

The article studies the concept of human security (hs) as embraced by the un General Assembly and Secretary Generals, and its instrumentality in the promotion of a customary international crime of global terrorism. Such a crime exists in the opinion of the Appellate Chamber of the Special Tribunal for Lebanon. Regarding terrorism in international criminal law (icl), not in armed conflict, I maintain that the concept of hs has been pivotal in furthering the “criminalisation” of terrorism in matters peace and security. I submit that (i) that the absence of a universally agreed upon definition of (global) terrorism does not suffice to detract from the finding that such a transnational crime exists, and (ii) in addition to the various and largely agreed constitutive elements of customary law, normative paradigmatic developments – here in the case of terrorism, and in the past two decades – have significantly supported this customarisation trend.

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