Chapter

Gender based crimes as "tools of war" in armed conflicts

Francisco José Leandro

Gender violence in armed conflicts

Lisboa : Instituto da Defesa Nacional, 2013

p.148-182

English

For many generations of combatants, acts of sexual violence in armed conflicts were largely ignored, tolerated, blanketed, consider as a symbolic side effect, a mark of victory, and sometimes even taken as a “bonus or a compensation” for regular soldiers and mercenaries. For many years it has been perceived as essential to preserving the troops’ morale. Sometimes, it was perceived as “part of the game”. In fact, only in 1945 rape was recognized as an international crime, despite of the fact that the crime elements remained indeterminate until 1998. In this context women were considered property of unrestricted access. Likewise, for many generations, the international criminal law turned a blind eye to the accountability of perpetrators of sexual crimes in armed conflicts. Consequently, the purpose of this essay is to study how the International Humanitarian Law (IHL), the Law of Armed Conflicts (LOAC) and the International Criminal Law (ICL) are equipped to fight against impunity of gender-based crimes in armed conflicts each time they are perpetrated as a tool of war, while gender-based violence has recently emerged as a salient topic in the human security dimension. Recognizing that gender-based crimes in armed conflicts are neither a legal concept, nor a largely accepted and consensual designation, this study attempts to discover whether, currently, International Humanitarian Law and International Criminal Law incorporate the notion of gender-based violence as a tool of war, as a legal stand included into a larger concept of war crimes, as a constitutive act with respect to genocide and as a crime against humanity.

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