War crimes against women and international war crimes tribunals

This thesis reviews the treatment of women in practice and theory in regards to laws of war and gender prosecution in international war crimes tribunals. Dating back two thousand years, rape and sexual abuse of women has been commonplace during periods of armed conflict, and punishment of these crimes has been a low, or nonexistent, priority. From the evolution of the customs of war in the Middle Ages, to the first codification of the laws of war, to the initiation of international instruments regulating war, to international tribunals to punish war criminals of World War P, gender based violence against women during wartime has been shamefully neglected in both domestic and international laws (human rights and humanitarian). As such, the thesis combines the historical survey of the treatment of women in past war crimes tribunals, with practical steps to prosecute gender crimes in present war crimes tribunals, and with propositions to amend the laws to provide future protections. This thesis reviewed the history and establishment of the Nuremberg and Tokyo War Crimes Tribunals. In reviewing these tribunals, and subsequently the trials, special emphasis was placed on the crimes within the jurisdiction of the tribunals, and the Allied power's eagerness to invoke innovative crimes regarding persecution on religious or political grounds, particularly regarding the massacre of the Jews, but their reluctance to afford the most minimum of efforts to prosecute gender related offenses. In order to reconcile the international communities neglect of women's issues, the status of women in domestic and international law and practice was reviewed, both in the past and in the present, and scenarios presented as to how certain issues have contributed to the failure of the legal community to address women's issues, and suggestions made as to how some of these problems can be rectified. With the past history as a cornerstone of proof of the urgent need to afford adequate protection to women during wartime, and the desperate need to support this protection with enforcement, the Balkan conflict will be reviewed, and the International Criminal Tribunal for the former Yugoslavia will be analysed. Reports of gender specific violence will include rape, forced prostitution, genocide, torture, sexual mutilation, forced impregnation, forced sterilization, and forced maternity. Particular emphasis will be placed upon instances of organized, systematic rape and cases of single, isolated rape, and the prosecution of these offenses under the terms of the Yugoslav Statute. The central argument throughout the thesis will be that all gender based violence against women committed as a direct result of the armed conflict should be explicitly defined and rigorously punished as serious violations of international humanitarian law. An extensive analysis will be presented on ways in which the Yugoslav Tribunal, and subsequently the Rwandan and future tribunals, can prosecute gender related violence, and why they must do so. Throughout the thesis, reviewing women's subordination from 500 B.C. to the present, it will be consistently argued that the abuses against women in wartime are subjugated in part because women have not been afforded sufficient recognition and protection domestically. Domestically, women continue to be discriminated against when the international community ignores the abuses committed against them, or labels wartime abuses as belonging in the domestic sphere. Violence against women in wartime continues to be regarded as a natural occurrence of war, typically rejected for investigation or prosecution by both the domestic and international communities. As the poor treatment of women domestically marginalizes the attention given to victims of wartime violence, lack of attention to wartime violence against women marginalizes all women. The continuous circle of ignoring gender specific abuse against women continues, with neither domestic nor international laws affording adequate attention, protection, or redress. However, it appears that the cycle of complacency about gender issues in the international community has come to a halt, with several indictments in the Yugoslav Tribunal charging defendants with sexual assault offenses. Successful prosecution of gender related crimes in the Yugoslav and Rwandan Tribunals will not only provide current victims with a remedy, but will also extend protections to women in ongoing and future armed conflicts, by terminating the impunity with which sex crimes have previously been afforded