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Noelle N.R. Quenivet has constructed a valuable tool for navigating the morass of sexual offences and international law. Using Bosnia-Herzegovina a jumping off point, she proceeds to show how, over the last two decades, the Western world has been swept up by a wave of feminist scholars writing about international law and more particularly humanitarian and human rights law. Although these articles, books and statements have covered a broad range of issues, the focus has been on sexual offences and, more specifically, on rape in times of conflict. These authors, as well as NGOs supporting their ideas, have made a series of assumptions concerning sexual offences in times of armed conflict. On the basis of these presumptions, they have claimed inter alia that international law does not adequately prohibit sexual offences and that prosecution is scarce. This timely work examines whether the assumptions made by feminist scholars are solidly grounded in international law and whether their claims are still valid regarding the latest legal developments. A thorough examination of the laws and the jurisprudence relating to sexual offences demonstrates that whereas before the creation of the ad hoc international criminal tribunals some of their claims were founded, these claims are now partially ill-founded. Published under the Transnational Publishers imprint.
TABLE OF CONTENTS Preface / Acknowledgments / Introduction Chapter 1. Defining Sexual Offenses: Acts and Consent 1.1. Describing the Technicality of the Act 1.1.1. Legal Definitions Brief review of national definitions International definitions: two definitions of rape looking at the technical description of the act 1.1.2. Feminist Critique Regarding These Definitions A broad definition? Still centred on penetration Gender-neutrality 1.2. The Lack of Consent 1.2.1. The Lack of Consent in National Law A subjective/objective point of view Brief overview of the definition of the word 'consent' in domestic jurisdictions 1.2.2. The Lack of Consent: International Law Rule 96 of the ICTY The jurisprudence of the ICTY Chapter 2. Rape and Other Forms of Sexual Offenses as Torture and Other Forms of Ill-Treatment 2.1. Rape and Other Sexual Offenses as Violations of One's Physical Integrity 2.1.1. Reaching the Threshold 2.1.2. Distinction Between the Different Types of Ill- Treatment 2.2. Sexual Offenses as Torture 2.2.1. The Prohibition of Sexual Offenses as Torture 2.2.2. The 'Public Official' Element 2.2.3. The Purpose of Torture and the Function of Sexual Offenses The extraction of information or confession The punishment for an act the person has committed or is suspected to have committed The intimidation of the person or of another Discrimination of any kind 2.2.4. Torture and State Responsibility State responsibility for acts committed by State agents State responsibility for acts committed by non- State agents 2.3. Violations of One's Physical Integrity, Individual Liability and Sexual Offenses 2.3.1. The Protection of One's Physical Integrity Under International Humanitarian Law 2.3.2. The Irrelevance of the Public/Private Divide in International Criminal Law 2.4. General Criticism Chapter 3. Sexual Offenses as Violations of International Humanitarian Law 3.1. A Crime That has Never Been Prosecuted 3.2. A Crime That is Not a Crime 3.2.1. Confusing the Notions of 'Prohibition' and of 'Protection' 3.2.2. Confusing the Notions of 'Grave Breach', 'War Crime' and Violations of International Humanitarian Law 3.2.3. Other Provisions Relevant for the Prosecution of Sexual Offenses 3.3. The Power of the Prosecution of Sexual Offenses in Times of Armed Conflict Chapter 4. Sexual Offenses as Crimes Against Humanity 4.1. Women as Civilians 4.2. The Persecutory/Discriminatory Element of Crimes Against Humanity 4.2.1. The Definition of 'Persecution'/'Discrimination' 4.2.2. Ethnicity as the Discrimination Ground and not Gender 4.2.3. The Link Between Ethnicity and Gender 4.3. The 'Widespread and Systematic' Element of the Crime 4.3.1. Crimes Against Humanity as Mass Crimes 4.3.2. The Policy Behind These Rapes Chapter 5. Sexual Offenses as Acts of Genocide 5.1. Genocide and Ethnic Cleansing 5.1.1. The Relation Between Genocide and Ethnic Cleansing 5.1.2. Sexual Offenses as Ethnic Cleansing Sexual offenses as a means to terrorise the population Sexual offenses as a means to humiliate the community 5.2. Sexual Offenses as Acts of Genocide 5.2.1. Preliminary Remarks on the Discourse of Genocide International and national public order Raped women versus the individual raped woman 5.2.2. 'Gendercide' and 'Genocidal Rape' Gendercide Genocidal rape 5.2.3. Sexual Offenses as Acts of Genocide Actus reus The intent Conclusion Bibliography Index

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