International Humanitarian Laws And Gender Criminology Essay

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"International human rights law, international humanitarian law and international refugee law have sought to provide a comprehensive framework to address the harms experienced by both men and women in war. However, discriminatory interpretation and application of these three strands of international law, as well as the failure to recognize women's singular experience of armed conflict, have meant that this framework has not provided the protection and response that women have required" [1] 

The use of sexual violence on women in times of armed conflicts - both internal and international conflicts is an event which is 'almost' taken for granted. Therefore, this essay aims to address this issue of rape of women in armed conflicts, assess the response of International Humanitarian Law (IHL) to this recurrent problematic

International Humanitarian Laws (IHL) which seek to govern the conduct of combatants during warfare in order to limit the adverse effects of the conflict on children, former participants and civilians. In recent times, there have been calls for the recognition of the different effects armed conflicts have on women and men and in response IHL has tried to come up with additional protocols in order to address this fault of the IHL rules. This essay will therefore be examining these Laws with particular focus on the protection it offers to female civilians who are caught in the exchange of fire between two combating parties. This will be done in order to determine of these rules are sensitive to the differences between the two sexes in light of the different effects of the war on them. It also intends to question if there are specific provisions that addresses these differences adequately in order to make proposals for its improvement.

"On September 30, 2009, the Security Council unanimously adopted a resolution that addresses the need to end sexual violence against women in conflict-affected countries. Introduced by the US government, at a session chaired by Secretary of State Hillary Clinton, the resolution builds on Security Council Resolutions 1325 and 1820, both of which were instrumental in raising the issue of sexual violence on the Security Council's agenda." [2] 

Inclusion of rape as a crime under the crimes of humanity, but only if committed "…as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack" [3] 

"International law is

contained in agreements between

States - treaties or conventions -, in

customary rules, which consist of

State practise considered by them

as legally binding, and in general principles" [4] 

QUESTION

Can more be done to protect women in times of war and should more be done? (this part of the essay will questioning if the focus should be on making 'war crimes' more gender sensitive or if the focus should be on eliminating war crimes)

This essay will be addressing the 'gender neutral' aspect of laws of war, focusing on the commission of sexual crimes by both sides

What is sexual violence?

Do the Laws of war provide adequate protection and reparation for female civilians in times of war and should they?

Are the laws if war adequately gender sensitive and do they need to be?

Women and International Humanitarian Law

Gender as a factor has been ignored within the law making machinery of humanitarian laws. Women as combatants and women as carers of old pple/children

"'Gender aspects' were often synonymous with

women's aspects. Men were seldom included except as analysed within their

traditional roles. For example, there was little focus on men as the carers of

children and old people. Likewise, women were generally presented as victims

rather than combatants or perpetrators. The gender issue was merely dealt

with in the context of the perceived traditional roles of men and women." [5] 

"However such scholars have argued that as societies

do not treat men and women alike, situations of armed conflicts will inevitably

impact upon men and women in an unequal manner. Armed conflicts

have the capacity to reinforce existing inequalities in society. On the other

hand, such situations can also provide new social possibilities for women - at

least during the armed conflict itself." [6] 

The Rome Statute of the International Criminal Court (ICC) includes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or "any other form of sexual violence of comparable gravity" as a crime against humanity when it is committed in a widespread or systematic way [7] 

In 2000, recognising the need to do more than punish rape in war, the Security Council went further. On 31 October 2000, the Council passed Resolution 1325, the first resolution ever passed by the Security Council that specifically addressed the impact of war on women, and women's contributions to conflict resolution and sustainable peace. [8] 

o complement the full implementation of resolution 1325, the Security Council voted unanimously for resolution 1820 in June 2009, which recognizes sexual violence as a tactic of war and a matter of international peace and security. It affirms sexual violence in conflict as a war crime, crime against humanity and constituent act of genocide that is prohibited. Stronger and clearer guidelines shall be given to United Nations peacekeepers to prevent sexual violence. Further, the resolution asserts the importance of women's participation in all processes related to stopping sexual violence in conflict, including their participation in peace talks. [9] 

Even in places where all the right mechanisms are in place, negative cultural attitudes towards women can make police stations and courts a hostile environment for survivors of sexual violence.

To address this, UN agencies and NGOs are advocating more resources for the training of police and military officers to better handle cases of sexual violence. [10] 

Changing negative cultural attitudes

Although training authorities and changing national laws are major steps towards punishing and ending these crimes, they cannot be successful without a fundamental change in people's attitudes towards the sexual abuse of women.

Sexual violence, whether in peace or in war has to become, for all people, a repugnant crime, which society refuses to accept and punishes severely. At present, says Dr Mukwege, director of Panzi hospital in Bukavu, Eastern DRC, this is not the case.

"Right now, the woman who gets raped is the one who is stigmatised and excluded for it. Beyond laws we have to get social sanction on the side of the woman. We need to get to a point where the victim receives the support of the community and the man who rapes is the one who is stigmatised and excluded and penalised by the whole community. It's the only way we can stop these crimes. Social sanction would be more effective in putting an end to these crimes than just the legal process."

This is where media, civil society and activist groups can play an important role. Through town hall meetings, radio and television talk shows, education campaigns and other means, these groups can advocate for removing the stigma on those who have been sexually assaulted, infected with HIV/AIDS, or who have conceived children as a result of such attacks, and generate societal condemnation against perpetrators. Moreover they can also lobby for the adoption and enforcement of more effective laws against such crimes. [11] 

Where is international

humanitarian law to be found?

A major part of international

humanitarian law is contained in the

four Geneva Conventions of 1949.

Nearly every State in the world has

agreed to be bound by them. The

Conventions have been developed

and supplemented by two further

agreements: the Additional

Protocols of 1977 relating to the

protection of victims of armed

conflicts.

When does international

humanitarian law apply?

International humanitarian law

applies only to armed conflict; it

does not cover internal tensions or

disturbances such as isolated acts

of violence. The law applies only

once a conflict has begun, and then

equally to all sides regardless of

who started the fighting.

weapons and tactics?

International humanitarian law

prohibits all means and methods of

warfare which:

fail to discriminate between

those taking part in the fighting

and those, such as civilians,

who are not, the purpose being

to protect the civilian

population, individual civilians

and civilian property;

cause superfluous injury or

unnecessary suffering;

cause severe or long-term

damage to the environment.

What should be done to

implement the law?

Measures must be taken to ensure

respect for international

humanitarian law. States have an

obligation to teach its rules to their

armed forces and the general public.

They must prevent violations or

punish them if these nevertheless

occur.

In particular, they must enact laws to

punish the most serious violations of

the Geneva Conventions and

Additional Protocols, which are

regarded as war crimes. The States

must also pass laws protecting the

red cross and red crescent

emblems.

Measures have also been taken at

an international level: tribunals have

been created to punish acts

committed in two recent conflicts

(the former Yugoslavia and

Rwanda). An international criminal

court, with the responsibility of

repressing inter alia war crimes, was

created by the 1998 Rome Statute.

Whether as individuals or through

governments and various

organizations, we can all make an

important contribution to compliance

with international humanitarian law.

"In eastern Congo, rape and sexual violence are routinely employed as weapons to subjugate villages and terrorise entire communities. From old women to young children, the soldiers do not discriminate; the stories of their brutality and torture are so horrific that they rarely reach western ears. Inside the country, however, the locals have accepted mass rape as the status quo; even women who have been attacked will tell you: "This is just Congolese life." [12] 

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