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. Continue reading →