Sexual and gender-based violence under the Geneva Conventions: A New Commentary

The 1949 Geneva Conventions, A Commentary (A. Clapham, P. Gaeta, M. Sassòli, Eds. OUP, October 2015), is a mammoth effort to update the interpretation of the Conventions to take account of the significant developments in international law, especially international human rights and international criminal law, since the ICRC published Jean Pictet’s edited commentaries* in the middle of last century.

As the editors point out, since Pictet’s commentaries were published the international legal landscape has dramatically shifted. For one thing, the 1949 Conventions have been universally ratified and their application interpreted in hundreds of cases. International human rights law (IHRL) has developed enormously since the 1960s and its intersection with IHL is more commonly acknowledged. Recently concluded human rights treaties expressly address their application to situations of armed conflict (e.g., Istanbul Convention on violence against women; Convention on the Rights of Persons with Disabilities). International criminal law has become something of a growth industry since the 1990’s when the tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and the International Criminal Court (ICC) were established with jurisdiction over IHL violations.

Since Pictet’s day, the worldview of sexual and gender-based violence (SGBV) and IHL has also radically changed. Due to the persistence of feminists over many decades, there is greater awareness of the prevalence of SGBV during armed conflict and a growing intolerance of it as an inevitable part of war. There have been numerous convictions for SGBV crimes as a violation of IHL (e.g., at ICTY, ICTR and ICC). In this context, SGBV has also evolved from its arcane conception in the Conventions as an attack against the honour of a female person, focussed on forced sexual intercourse, to encompass a wide range of acts against the sexual integrity of a person of any gender.

Patricia Viseur-Sellers and I wrote the chapter on protections from rape and other sexual violence and we start from the principle that humane treatment, the fundamental tenet of the Conventions regime, prohibits these acts against any person in every circumstance. We look in detail at Article 27, Fourth GC on civilians as the only article in the Conventions to refer expressly to sexual violence. It requires that female civilians “be protected against any attack on their honour, in particular against rape, forced prostitution and indecent assault”.

None of these terms are defined in the Conventions. We examine each one drawing on a range of sources, including international jurisprudence where available (e.g., Nuremberg, the International Military Tribunal for the Far East, the ICTY and ICTR), the Rome Statute and Elements of Crimes of the ICC, as well as leading critical feminist analysis, especially the work of J. Gardam & M. Jarvis in Women, Armed Conflict and International Law (Kluwer, 2001).

Much of the discussion focuses on a critical assessment of the imprecise and out-dated approach in Article 27(2) that protects women from sexual assault as “attacks on their honour” rather than against their person and sexual integrity. We agree with Gardam and Jarvis that IHL is a “thoroughly gendered system” and that equating female honour with chastity and modesty mischaracterises sexualised violence and perpetuates the discriminatory gender stereotype which sees women’s honour as belonging to her family and community, especially its male members. We point out that it also perpetuates the myth that sexual violence, especially rape, can only be committed against females.

Our discussion on “forced prostitution” references criticism by survivors of the Japanese military brothels of the 1930-40’s that the term “obscures the terrible gravity of the crime, suggests a level of voluntariness, and stigmatizes its victims as ‘immoral’” (Judgement, Women’s International War Crimes Tribunal). The Chapter also affirms an expansive interpretation of the protection from “other indecent assault”.

We look briefly at the implied protection from SGBV in the other GCs, applicable to all persons regardless of gender, especially the obligation for the humane treatment of prisoners of war (Art. 14 Third GC), the wounded and sick at sea (Art. 12 Second GC), and on land (Art. 12 First GC), as well as protections under the Additional Protocols (Arts. 75-77 AP 1 and Art. 4 AP II). There is a brief discussion of the protections in non-international armed conflict from outrages on personal dignity, torture and degrading treatment under common Article 3, but this is covered more fully in the chapter in the Commentary that is devoted to that Article.

On children, we focus on Article 77 of AP I, which requires parties to a conflict, including an adverse party detaining children as prisoners of war or otherwise, to afford them “special respect” and protection against indecent assault. We say this Article extends protection from acts of SGBV committed against children by members of their own side. This is crucial given the widespread use of child soldiers and evidence that they are often targeted for, and forced to commit such acts. In our view, this is an area warranting further consideration.

Following the format for each chapter of the Commentary, we examine the legal consequences for violations by individuals and states, including individual criminal responsibility and grave breaches of the Geneva Conventions, the Security Council’s resolutions on Women, Peace and Security, and the obligation of states to prosecute or extradite, including through universal jurisdiction.

The new Commentary on the protections against sexual violence is important and timely. Much of the world’s population lives with, or under the threat of, some kind of armed conflict. In this context, as in ‘peace’ time, females are always targeted for sexual violence, as are some males. Yet, despite the increase in attention on these violations in the past 25 years, they continue unabated and sexual violence is commonly used as a deliberate political and military strategy. We need to apply all the tools at our disposal, including the GC regime, to come up with ways to better protect from SGBV in armed conflict of all kinds. Insisting on a non-sexist and expansive understanding of the protections already in place under that regime, as we have tried to do, is essential if it is to be more responsive and effective.

*The ICRC is revising these Commentaries and launched the first part of this update in March 2016 on the First Geneva Convention on the wounded and sick.

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