Responses of International Law to Conflict-Based Sexual and Gender-Based Violence
Sample Syllabus Compiled by the Gender Jurisprudence Collections Project
Introduction and Goals of the Course
Sexual and gender-based crimes committed in times of conflict or repression traditionally have been ignored, or at most, treated as secondary to other crimes. However, in the past two decades, and particularly since 1998, there has been an incredible transformation in the treatment of sexual and gender-based violence in the fields of international humanitarian law and international criminal law. This course aims to provide an overview and evaluation of the responses of international law to the experience of survivors of such violence. The course will examine feminist critiques of IHL and consider the links between conflict and issues such as women’s inequality and inequitable economic and social conditions. Specifically, the course will explore how survivors of sexual and gender-based violence in times of conflict are treated under the various categories of the laws of war, such as civilians, combatants, detainees and POWs, but also question whether these laws are sufficient to encompass the variety of ways survivors of such violence are affected by conflict. The course will also look at the developing jurisprudence dealing specifically with accountability for sexual and gender-based violence from the ad hoc international criminal tribunals for Rwanda and the former Yugoslavia and the “hybrid” or internationalized courts, as well as the provisions specifically relating to such violence in the Rome Statute and the practice of the International Criminal Court in implementing these provisions. The course will end with a critical evaluation of the consequences, both intended and unintended, of the prosecution of sexual and gender-based violence by these courts and tribunals and of feminist interventions in international law more generally.
Schedule of Classes and Assignments
Topic 1: The Impact of Conflict on Women Defining Gender
• Judith Gardam and Michelle Jarvis, WOMEN, ARMED CONFLICT AND INTERNATIONAL LAW, Ch. 2 (2001).
• Dara Kay Cohen, Amelia Hoover Green, and Elisabeth Jean Wood, Wartime Sexual Violence
Misconceptions, Implications, and Ways Forward, United States Institute of Peace Special Report 323
• Valerie Oosterveld, The Definition of “Gender” in the Rome Statute of the International Criminal Court:
A Step Forward or Back for International Criminal Justice, 18 HARVARD HUM. RTS J. 55, 66-71 (2005).
• Katherine G. Southwick, Srebrenica as Genocide? The Krstić Decision and the Language of the
Unspeakable, 192 YALE H.R. AND DEVELOPMENT L.J. 188, 192-195 (2005).
Topic 2: Introduction to International Humanitarian Law and International Criminal Law
• Van Schaack, B., & Slye, R, INTERNATIONAL CRIMINAL LAW AND ITS ENFORCEMENT, 219-224, 245-256, 268-278, 290-292 (2007).
• Van Schaack, B., & Slye, Defining International Criminal Law (Santa Clara Law Digital Commons, 2007).
• Podgor, E. & Clark, R., UNDERSTANDING INTERNATIONAL CRIMINAL LAW 157-160, 167-182 (2008).
Topic 3: Women in International Humanitarian Law
• Judith Gardam and Michelle Jarvis, WOMEN, ARMED CONFLICT AND INTERNATIONAL LAW, Ch. 3 (2001).
• Helen Durham, International Humanitarian Law and the Protection of Women, in LISTENING TO THE
SILENCES: WOMEN AND WAR 100-105 (H. Durham and Tracey Gurd, eds., 2005).
• Addressing the Needs of Women Affected by Armed Conflict: An ICRC Guidance Document, 5-14
• Declaration on the Protection of Women and Children During Armed Conflict, UNGA Res 3318 (XXIX)
of 14 December 1974.
Topic 4: Women as Combatants
Women in Detention – Civilian Internees, POWs
• Penny Cummings, Combat Operations in Iraq: An Australian Soldier’s Perspective, LISTENING TO THE SILENCES: WOMEN AND WAR (Helen Durham & Tracy Gurd, eds., 2005).
• Lucinda Peach, Women at War: The ethics of women in combat, 15 HAMLINE JOURNAL OF PUBLIC LAW AND POLICY 199 – 241 (2000).
• Claudette Roulo, Defense Department Expands Women’s Combat Role, American Forces Press Service (Jan. 24, 2013).
• David F. Burrelli, Women in Combat: Issues for Congress, Congressional Research Service (May 9, 2013).
• Anna Mulrine, Women in combat no later than 2016, Pentagon says, Christian Science Monitor ( July 25, 2013)
• Charlotte Lindsey, Women and war: the detention of women in wartime 83 INTERNATIONAL REVIEW OF THE RED CROSS 505 – 520 (2001).
• Alexandra Hemmerly-Brown, Female POWs prove women can endure war’s hardships, US Army (Mar. 31, 2011), available at http://www.army.mil/article/54136/.
Topic 5: Feminist Critiques of International Law and International Humanitarian Law
• Hilary Charlesworth and Christine Chinkin, THE BOUNDARIES OF INTERNATIONAL LAW: A FEMINIST ANALYSIS 23-61 (2000).
• Judith Gardam and Michelle Jarvis, WOMEN, ARMED CONFLICT AND INTERNATIONAL LAW, Ch. 4 (2001).
• Judith Gardam, Women and Armed Conflict: The Response of International Humanitarian Law, in
LISTENING TO THE SILENCES: WOMEN AND WAR 109-123 (H. Durham and Tracey Gurd, eds., 2005).
• Helen Durham and Katie O’Brien, The Dialogue of Difference: Gender Perspectives on International
Humanitarian Law, INTERNATIONAL REVIEW OF THE RED CROSS 31-52 (March 2010). 2
Topic 6: International Prosecution of Sexual and Gender-Based Violence Historical Development
• Patricia Viseur-Sellers, The Context of Sexual Violence: Sexual Violence as Violations of International
Humanitarian Law, in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW: THE EXPERIENCE OF INTERNATIONAL AND NATIONAL COURTS, Vol.I 263-293 (G. Kirk-McDonald and O. Swaak-Goldman, eds., 2000).
• Theodore Meron, Rape as a Crime under International Humanitarian Law, 87 AJIL 424 (1993) (excerpts).
Topic 7: Case Study: The “Comfort Women”
• Jan Ruff-O’Herne, Fifty Years of Silence: Cry of the Raped, in Listening to the Silences: Women and War 3 (H. Durham and Tracey Gurd, eds., 2005).
• Kelly Askin, Shifting Shame and Stigma from Victim to Victimizers, 1 INTL. CRIM. L. REV. 2 (2001).
• The Prosecutors and the Peoples of the Asia-Pacific Region v. Japan et al., Case NO. PT-200-1-T,
Judgment (Dec. 4, 2001) (excerpts).
Topic 8: Advances and Challenges to International Prosecution of Sexual and Gender-Based Violence
• Prosecutor v Kunarac, Vukovic and Kovac, ICTY Judgment of 22 February 2001, Trial Chamber: paras. 1-11, 48-75, 141-159, 746-782; Appeals Chamber Judgment of June 12, 2002: paras 125-133, 272-282.
• Maria Grahn Farley, The Politics of Inevitability: An Examination of Janet Halley’s Critique of the Criminalisation of Rape as Torture, in FEMINIST PERSPECTIVES ON CONTEMPORARY INTERNATIONAL LAW 109-129 (Sari Kuovo and Zoe Peterson eds., 2011).
• Kiran Grewal, The Protection of Sexual Autonomy under International Criminal Law, 10 J. INT’L CRIM. J. 373 (2012).
• Valerie Oosterveld,, Gender and the Charles Taylor Case at the Special Court for Sierra Leone, 19 WM. & MARY J. WOMEN & L. 7-28, 30-32 (2012).
• Susana SáCouto and Katherine Cleary, Importance of Effective Investigation of Sexual Violence and Gender-Based Crimes at the International Criminal Court, 17 J. OF GENDER, SOCIAL POL’Y & L. 339, 347-359 (2009) (excerpts).
Topic 9: “Genocidal Rape”: Women as Agents of Violence
• Beth Van Schaack, Engendering Genocide: Akayesu and the Affirmation of Genocidal Rape HUMAN
RIGHTS ADVOCACY STORIES (Forthcoming Foundation Press 2008); Santa Clara University School of
Law, Legal Studies Research Papers Series, Working Paper No. 08-55, July 2008.
• Mark Drumbl, “She Makes Me Ashamed to be a Woman”: The Genocide Conviction of Pauline
Nyiramasuhuko, MICHIGAN J. INT’L L. (2013)
• Prosecutor v. Gbagbo, ICC-02/11-01/12, Warrant of Arrest for Simone Gbagbo (Feb. 29, 2012).
Topic 10: Prosecuting Sexual and Gender-Based Violence at the International Criminal Court
• Cate Steains, Gender Issues, Roy S Lee (ed), THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE: ISSUES, NEGOTIATIONS, RESULTS 357-390 (1999).
• Susana SáCouto, Perspectives on Crimes of Sexual Violence in International Law: Advances and Challenges at the International Criminal Court, ILSA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW (forthcoming 2013)
• Women’s Initiatives for Gender Justice, Statement on the ICC Decision to Omit Charges for Gender- Based Crimes against Jean-Pierre Bemba Gombo (2009), available at http://www.iccwomen.org/news/docs/Statement—PTC-Decision-on-Bemba.pdf.
• Women’s Initiatives for Gender Justice, First acquittal by the ICC: The Prosecutor v. Mathieu Ngudjolo Chui, Press Release (Dec. 18, 2012), available at http://www.iccwomen.org/documents/Ngudjolo-Press- Release–final.pdf.
• Fionnuala Ni Aoláin, Gendered Harms and their Interface with International Criminal Law: Norms, Challenges and Domestication, University of Minnesota Law School Legal Studies Research Paper Series Research Paper No. 13-19, 20-27 (2013).
Topic 11: Participation of Survivors of Sexual or Gender Violence in International/ized Criminal Proceedings: Step Forward or Step Back?
• Nicola Henry, Witness to Rape: The Limits and Potential of International War Crimes Trials for Victims
of Wartime Sexual Violence, 1 INT’L J. OF TRANSITIONAL J. 114 (2009).
• Susana SáCouto, Victim Participation at the International Criminal Court and the Extraordinary
Chambers in the Courts of Cambodia: A Feminist Project, MICHIGAN J. GENDER & L. 1, 18-28 (2012).
• Women’s Initiatives for Gender Justice, 2012 GENDER REPORT CARD ON THE INTERNATIONAL CRIMINAL
COURT, 248-283 (November 2012).
Topic 12: Women in Conflict Resolution and Peace-Building
• UNSC Resolution 1325 (2000).
• UNSC Resolution 1820 (2008).
• UNSC Resolution 1888 (2009).
• UNSC Resolution 1889 (2009).
• UNSC Resolution 1960 (2010).
• UNSC Resolution 2106 (2013).
• Natalie Florea Hudson, UNSCR 1325: The Challenges of Framing Women’s Rights as a Security Matter,
Norwegian Peacebuilding Resource Center Policy Brief (February 2013).
• Diane Otto, Power and Danger: Feminist Engagement with International Law through the UN Security
Council, 32 AUSTRALIAN FEMINIST L.J. 97 (2010).