The paper analyzes the issue of member-on-member sexual and gender-based crimes in armed conflict (particularly non-international ones) and aims to reassess it in light of the recent practice of international criminal courts (particularly that of the International Criminal Court), in the broader context of the interactions between international humanitarian law (IHL) and international criminal law (ICL). Sexual and gender-based violence among members of the same armed force or group has been historically underreported and under-prosecuted in the practice of national courts, and virtually absent from international prosecutions. The main reason for this enforcement gap stems from the fact that, according to the traditional view, international law requires that in order to establish the commission of a war crime the relevant conduct must also be in violation of an underlying primary rule of IHL. Recent international case law has called into question this approach, affirming jurisdiction as regards member-on-member sex and gender-based violence irrespective of the status of the alleged victim. The paper inquires whether this might represent a progressive development of the law of war crimes and assesses the criminal policy objectives militating in favor of such an expansionary solution, as well as the potential risks of this judicial practice. Finally, the article touches upon the issue of reparation for the benefit of victims of member-on- member sexual violence, discussing whether judicial reparation administered through criminal proceedings could represent a viable alternative to other redress mechanisms.

Member-on-member Sexual and Gender-based Crimes as War Crimes: Towards the Progressive Autonomy of International Criminal Responsibility from International Humanitarian Law? / Nesi, Giuseppe; Poltronieri Rossetti, Luca. - In: LA COMUNITÀ INTERNAZIONALE. - ISSN 0010-5066. - STAMPA. - 2020:3(2020), pp. 341-365.

Member-on-member Sexual and Gender-based Crimes as War Crimes: Towards the Progressive Autonomy of International Criminal Responsibility from International Humanitarian Law?

Nesi, Giuseppe;Poltronieri Rossetti, Luca
2020-01-01

Abstract

The paper analyzes the issue of member-on-member sexual and gender-based crimes in armed conflict (particularly non-international ones) and aims to reassess it in light of the recent practice of international criminal courts (particularly that of the International Criminal Court), in the broader context of the interactions between international humanitarian law (IHL) and international criminal law (ICL). Sexual and gender-based violence among members of the same armed force or group has been historically underreported and under-prosecuted in the practice of national courts, and virtually absent from international prosecutions. The main reason for this enforcement gap stems from the fact that, according to the traditional view, international law requires that in order to establish the commission of a war crime the relevant conduct must also be in violation of an underlying primary rule of IHL. Recent international case law has called into question this approach, affirming jurisdiction as regards member-on-member sex and gender-based violence irrespective of the status of the alleged victim. The paper inquires whether this might represent a progressive development of the law of war crimes and assesses the criminal policy objectives militating in favor of such an expansionary solution, as well as the potential risks of this judicial practice. Finally, the article touches upon the issue of reparation for the benefit of victims of member-on- member sexual violence, discussing whether judicial reparation administered through criminal proceedings could represent a viable alternative to other redress mechanisms.
2020
3
Nesi, Giuseppe; Poltronieri Rossetti, Luca
Member-on-member Sexual and Gender-based Crimes as War Crimes: Towards the Progressive Autonomy of International Criminal Responsibility from International Humanitarian Law? / Nesi, Giuseppe; Poltronieri Rossetti, Luca. - In: LA COMUNITÀ INTERNAZIONALE. - ISSN 0010-5066. - STAMPA. - 2020:3(2020), pp. 341-365.
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11572/247042
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