Pub Date : 2023-06-27DOI: 10.1163/18781527-bja10076
Juan-Pablo Perez-Leon-Acevedo
The Peruvian Communist Party/Shining Path or Sendero Luminoso (pcp-sl) and the Tupac Amaru Revolutionary Movement (mrta) committed rape and other sexual violence atrocities against women/girls and executions of lgbti+ persons during Peru’s non-international armed conflict (niac) (1980–2000). This article analyses sexual and gender-based violence (sgbv) perpetrated by these non-State armed groups (nsag s) against women/girls and lgbti+ persons under international humanitarian law (ihl) binding nsag s, complemented with a rebel governance approach (including female membership in these groups). This case-study can illustrate whether nsag s fulfil ihl obligations, also identifying inconsistencies between their doctrines and actions. After examining gender-related issues concerning the pcp-sl/mrta and their sgbv crimes against women/girls and lgbti+ persons, this article applies an analytical framework consisting of a gender-focused rebel governance approach and, mainly, ihl to sgbv perpetrated by the pcp-sl/mrta. ihl analysis involves: ihl bindingness over nsag s; prohibition of sgbv binding nsag s; and the nsag s’ (emerging) obligation to redress.
{"title":"Sexual and Gender-Based Violence Committed by Non-State Armed Groups Against Women/Girls and lgbti+ Persons in Non-International Armed Conflicts: Peru’s Case","authors":"Juan-Pablo Perez-Leon-Acevedo","doi":"10.1163/18781527-bja10076","DOIUrl":"https://doi.org/10.1163/18781527-bja10076","url":null,"abstract":"\u0000The Peruvian Communist Party/Shining Path or Sendero Luminoso (pcp-sl) and the Tupac Amaru Revolutionary Movement (mrta) committed rape and other sexual violence atrocities against women/girls and executions of lgbti+ persons during Peru’s non-international armed conflict (niac) (1980–2000). This article analyses sexual and gender-based violence (sgbv) perpetrated by these non-State armed groups (nsag s) against women/girls and lgbti+ persons under international humanitarian law (ihl) binding nsag s, complemented with a rebel governance approach (including female membership in these groups). This case-study can illustrate whether nsag s fulfil ihl obligations, also identifying inconsistencies between their doctrines and actions. After examining gender-related issues concerning the pcp-sl/mrta and their sgbv crimes against women/girls and lgbti+ persons, this article applies an analytical framework consisting of a gender-focused rebel governance approach and, mainly, ihl to sgbv perpetrated by the pcp-sl/mrta. ihl analysis involves: ihl bindingness over nsag s; prohibition of sgbv binding nsag s; and the nsag s’ (emerging) obligation to redress.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2023-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48870545","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-22DOI: 10.1163/18781527-bja10077
Frédéric Mégret
This article argues that the gendered constitution of the regulation of war runs even deeper than typically understood. Instead of merely the laws of war’s internal categories being gendered, it is the entire apparatus of war’s regulation as expressed in various versions of its denomination that manifests different shades of gender. Specifically, the article shows how the laws of war emerged as the hegemonic masculine synthesis between different conceptions of manhood, from the most unconstrained to the most chivalrous. As that compromise has been challenged by more ‘feminine’ approaches, this has triggered repeated reassertions of the regulation of war’s inherently masculine character. The article speculates about the staying power of the masculine script of war through law at the intersection of misogyny, racism and the politics of legal expertise. It concludes by reflecting on what it might mean to transcend the implicit heteronormativity of the regulation of war by queering its categories.
{"title":"Another Look at the Gendered Constitution of the Laws of War","authors":"Frédéric Mégret","doi":"10.1163/18781527-bja10077","DOIUrl":"https://doi.org/10.1163/18781527-bja10077","url":null,"abstract":"\u0000This article argues that the gendered constitution of the regulation of war runs even deeper than typically understood. Instead of merely the laws of war’s internal categories being gendered, it is the entire apparatus of war’s regulation as expressed in various versions of its denomination that manifests different shades of gender. Specifically, the article shows how the laws of war emerged as the hegemonic masculine synthesis between different conceptions of manhood, from the most unconstrained to the most chivalrous. As that compromise has been challenged by more ‘feminine’ approaches, this has triggered repeated reassertions of the regulation of war’s inherently masculine character. The article speculates about the staying power of the masculine script of war through law at the intersection of misogyny, racism and the politics of legal expertise. It concludes by reflecting on what it might mean to transcend the implicit heteronormativity of the regulation of war by queering its categories.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2023-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45787785","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-16DOI: 10.1163/18781527-bja10075
A. Alexander
This article traces the expansion of international law from the Hague Conventions, where only a state’s soldiers had legal status, to the contemporary understanding that international law governs all participants in conflict. This can be seen as a humanitarian shift that diminishes state power. This article, however, argues that the Hague Conventions only established a limited sphere of formal law because delegates deliberately left free-fighters outside the law, to be governed by their own will and moral code. In doing so, delegates echoed a philosophical tradition that situates true freedom outside the state. As this article shows, the expansion of law to include such fighters required the replacement of such alternative codes with a renewed and extended range of formal legal criteria. As such, the expansion of international law to the realm outside the state has led to a reaffirmation of that law which is synonymous with the state.
{"title":"Filling the Gaps: The Expansion of International Humanitarian Law and the Juridification of the Free-Fighter","authors":"A. Alexander","doi":"10.1163/18781527-bja10075","DOIUrl":"https://doi.org/10.1163/18781527-bja10075","url":null,"abstract":"\u0000This article traces the expansion of international law from the Hague Conventions, where only a state’s soldiers had legal status, to the contemporary understanding that international law governs all participants in conflict. This can be seen as a humanitarian shift that diminishes state power. This article, however, argues that the Hague Conventions only established a limited sphere of formal law because delegates deliberately left free-fighters outside the law, to be governed by their own will and moral code. In doing so, delegates echoed a philosophical tradition that situates true freedom outside the state. As this article shows, the expansion of law to include such fighters required the replacement of such alternative codes with a renewed and extended range of formal legal criteria. As such, the expansion of international law to the realm outside the state has led to a reaffirmation of that law which is synonymous with the state.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2023-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49269393","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-09DOI: 10.1163/18781527-bja10062
M. Killingsworth
The modern laws of war are an integral foundation of 19th century efforts to establish and maintain order within the then emerging international society of states. But membership was conditional; only ‘civilised’ states were permitted entry to international society. Engaging with the concept of ‘the standard of civilisation’, the aim of this paper is to demonstrate a continuity of double standards as they relate to protections afforded by the modern laws of war. It will argue that these double standards have been, and continue to be, underpinned by attempts to de-humanise belligerents via the language of the ‘standard of civilisation’. In making this argument, the paper will draw attention to the historical centrality of the state and the role it has played in establishing conditionality with regards to protections afforded by the modern laws of war through the language of raison d’état and the standard of civilisation.
{"title":"International Humanitarian Law: Necessity, Distinction and the ‘Standard of Civilisation’","authors":"M. Killingsworth","doi":"10.1163/18781527-bja10062","DOIUrl":"https://doi.org/10.1163/18781527-bja10062","url":null,"abstract":"\u0000The modern laws of war are an integral foundation of 19th century efforts to establish and maintain order within the then emerging international society of states. But membership was conditional; only ‘civilised’ states were permitted entry to international society. Engaging with the concept of ‘the standard of civilisation’, the aim of this paper is to demonstrate a continuity of double standards as they relate to protections afforded by the modern laws of war. It will argue that these double standards have been, and continue to be, underpinned by attempts to de-humanise belligerents via the language of the ‘standard of civilisation’. In making this argument, the paper will draw attention to the historical centrality of the state and the role it has played in establishing conditionality with regards to protections afforded by the modern laws of war through the language of raison d’état and the standard of civilisation.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2023-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46307510","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-30DOI: 10.1163/18781527-bja10074
Tamer Morris
When the Security Council mandates the protection of civilians mandate in UN peacekeeping missions, it inadvertently forms an obligation on States involved with UN peace missions. To affirm the concept of State sovereignty, the Security Council constantly references ‘the primary responsibility of the State to protect’ within their resolutions. This developing norm, beginning within the protection of civilians mandate, is an expansion of existing obligations under ihl and ihrl. Within the text of Security Council resolutions there is an obligation that States who are a party to a niac are responsible for peace and security. Therefore, force should be used for peace and security, rather than for “triumphing” in the conflict or entrenching power. As such, a State can achieve its obligations under ihl when governments take all reasonable steps to conclude the conflict, for any hostilities within civilian areas by its very nature is a breach of a State’s obligation and responsibility to protect their own civilians.
{"title":"The Language of the Protection of Civilians Mandate and the Primary Responsibility of the State: A Legal Norm for Peace and Security","authors":"Tamer Morris","doi":"10.1163/18781527-bja10074","DOIUrl":"https://doi.org/10.1163/18781527-bja10074","url":null,"abstract":"\u0000When the Security Council mandates the protection of civilians mandate in UN peacekeeping missions, it inadvertently forms an obligation on States involved with UN peace missions. To affirm the concept of State sovereignty, the Security Council constantly references ‘the primary responsibility of the State to protect’ within their resolutions. This developing norm, beginning within the protection of civilians mandate, is an expansion of existing obligations under ihl and ihrl. Within the text of Security Council resolutions there is an obligation that States who are a party to a niac are responsible for peace and security. Therefore, force should be used for peace and security, rather than for “triumphing” in the conflict or entrenching power. As such, a State can achieve its obligations under ihl when governments take all reasonable steps to conclude the conflict, for any hostilities within civilian areas by its very nature is a breach of a State’s obligation and responsibility to protect their own civilians.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2023-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47964548","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-29DOI: 10.1163/18781527-14010000
{"title":"Front matter","authors":"","doi":"10.1163/18781527-14010000","DOIUrl":"https://doi.org/10.1163/18781527-14010000","url":null,"abstract":"","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135791771","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-11DOI: 10.1163/18781527-bja10073
J. Tous
{"title":"Jelena Aparac, Business et droits de l’homme dans les conflits armés","authors":"J. Tous","doi":"10.1163/18781527-bja10073","DOIUrl":"https://doi.org/10.1163/18781527-bja10073","url":null,"abstract":"","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2023-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48042622","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-25DOI: 10.1163/18781527-bja10069
H. Durham, A. Quintin
The faithful application of ihl during armed conflicts requires working on a variety of systems, structures and institutions that exist within a society, to ensure that the environment is conducive to respect for the law. Accordingly, there are many different roads to travel down, from developing and interpreting international legal rules to building adequate domestic frameworks, and from training armed actors on the rules applicable in warfare to working with communities affected by violence to ensure their voices are heard. This article aims to recognize the value of bringing different actors together, fostering complementarity among them and joining their forces towards the common aim of ensuring better respect for the law. Based on recent examples and studies in the field of ihl training, application and implementation, the article also aims to help humanitarian practitioners, armed actors, diplomats, legal scholars and others identify ways to work together and cross-fertilize their work.
{"title":"At the Crossroads: Multi-Stakeholder and Multi-Disciplinary Approaches in the Application of ihl","authors":"H. Durham, A. Quintin","doi":"10.1163/18781527-bja10069","DOIUrl":"https://doi.org/10.1163/18781527-bja10069","url":null,"abstract":"\u0000The faithful application of ihl during armed conflicts requires working on a variety of systems, structures and institutions that exist within a society, to ensure that the environment is conducive to respect for the law. Accordingly, there are many different roads to travel down, from developing and interpreting international legal rules to building adequate domestic frameworks, and from training armed actors on the rules applicable in warfare to working with communities affected by violence to ensure their voices are heard. This article aims to recognize the value of bringing different actors together, fostering complementarity among them and joining their forces towards the common aim of ensuring better respect for the law. Based on recent examples and studies in the field of ihl training, application and implementation, the article also aims to help humanitarian practitioners, armed actors, diplomats, legal scholars and others identify ways to work together and cross-fertilize their work.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2023-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43733791","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-24DOI: 10.1163/18781527-bja10068
S. Murphy, Y. Parkhomenko
One intersection between scholarship and practice in international humanitarian law is observable in international litigation concerning violations of the law of war. An interesting example in this regard recently arose in the case by the Democratic Republic of the Congo against Uganda for war-related claims. At the reparations phase, the Court decided not to rely solely on the submissions of the Parties, but to task certain scholars and other experts to answer evidentiary questions. Yet, when the Court’s judgment was issued in February 2022, the role of these experts turned out to be almost negligible, with one significant exception. The overall lesson may be that – while the work of scholars can be highly important for claims practice relating to international humanitarian law – it has its limits, such as when proving and quantifying mass civil injury resulting from a lengthy and complex armed conflict.
{"title":"Now You See Them, Now You Don’t: Court-Appointed Experts, Wartime Reparations, and the drc v Uganda Case","authors":"S. Murphy, Y. Parkhomenko","doi":"10.1163/18781527-bja10068","DOIUrl":"https://doi.org/10.1163/18781527-bja10068","url":null,"abstract":"\u0000One intersection between scholarship and practice in international humanitarian law is observable in international litigation concerning violations of the law of war. An interesting example in this regard recently arose in the case by the Democratic Republic of the Congo against Uganda for war-related claims. At the reparations phase, the Court decided not to rely solely on the submissions of the Parties, but to task certain scholars and other experts to answer evidentiary questions. Yet, when the Court’s judgment was issued in February 2022, the role of these experts turned out to be almost negligible, with one significant exception. The overall lesson may be that – while the work of scholars can be highly important for claims practice relating to international humanitarian law – it has its limits, such as when proving and quantifying mass civil injury resulting from a lengthy and complex armed conflict.","PeriodicalId":41905,"journal":{"name":"Journal of International Humanitarian Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2023-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47716899","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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