1. For a discussion of the situation in relation to human rights in times of armed conflict see Yoram, Dinstein,“;Human Rights in Armed Conflict: International Humanitarian Law”. in Theodor, Meron (Ed.), Human Rights in International Law: Legal and Policy Issues (1984), Vol.2, p.345Google Scholar and see Theodor, Meron, Human Rights in Internal Strife: Their International Protection (1987).Google Scholar

2. See e.g. Charlotte, Bunch, “Women's Rights as Human Rights: Towards a Re-Vision of Human Rights” (1990) 12 Hum.Rts.Q. 486Google Scholar; and Hilary, Charlesworth, “What Are Women's International Human Rights?”, in Rebecca, Cook (Ed.), Human Rights of Women: National and International Perspectives (1994), p.58.Google Scholar

3. See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, UN Doc.S/1994/674 (1994) that considers the issue of rape and sexual assault at paras.102–109 and 232–253. See generally Theodor, Meron, “Rape as a Crime Under International Humanitarian Law” (1993) 87 A.J.I.L. 424Google Scholar and Christine, Chinkin,”Rape and Sexual Abuse of Women in International Law” (1994) 5 E.J.I.L. 326.Google Scholar

4. See Draft Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflicts Annex E/CN.4/1995/6. The focus of concern in relation to children is the use by States of child combatants. This leads to a convergence between the regimes, as the use of child combatants involves the treatment by a State of its own nationals. the province of human rights law rather than the law of armed conflict. Geraldine Van, Bueren, “The International Legal Protection of Children in Armed Conflicts” (1994) 431.C.L.Q. 809, 817–818 criticises this selective focus.Google Scholar

5. See e.g. Arts.23, 89 and 98 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 Aug. 1949 (the Fourth Geneva Convention).

6. See e.g. idem, Art.27(2).

7. For a description of these rules see Mala, Tabory, “The Status of Women in Humanitarian Law”, in Yoram, Dinstein (Ed.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (1989), p.941Google Scholar and Francoise, Krill, “The Protection of Women in International Humanitarian Law” (1985) 249 Int.Rev. Red Cross 337.Google Scholar

8. I am not referring here to the hierarchy in the sense used by many scholars to distinguish between civil and political rights and social and cultural rights. For a discussion of this issue see Theodor, Meron, “On a Hierarchy of International Human Rights” (1986) 80 A.J.I.L. 1.Google Scholar

9. (1981) 1249 U.N.T.S. 14.

10. See Belinda, Clark. “The Vienna Reservations Regime and the Convention on Discrimination Against Women” (1991) 85 A.J.I.L. 281Google Scholar and Rebecca, Cook, “Reservations to the Convention on the Elimination of all Forms of Discrimination Against Women” (1990) 30 Virginia J.I.L. 643.Google Scholar

11. The law of armed conflict is divided into the Law of Geneva and the Law of The Hague. The former is based on principles developed through the auspices of the ICRC, whose purposes are to ensure respect for human life in armed conflict as far as is compatible with military necessity and public order. The Law of Geneva imposes no restrictions on the means and methods of warfare but provides for such matters as the treatment of prisoners of war, civilians in occupied territories and persons hors de combat. The Law of The Hague deals with the regulation of the conduct of warfare itself.

12. Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 (Protocol I).

13. For the definition of “grave breaches” and further discussion of this point see infra n.88 and accompanying text.

14. See Gardam, Judith G., “An Alien's Encounter with the Law of Armed Conflict”, in Ngaire, Naffine and Rosemary, Owens (Eds). Sexing the Subject of Law (1996), p.233Google Scholar; Catherine, Niarchos, “Women, War, and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia” (1995) 17 Hum.Rts.Q. 649, 672–676 and see the further discussion infra n.85 and accompanying text.Google Scholar

15. See e.g. Human Rights Watch, Global Report on Women's Human Rights (1995), pp.1–99 and 100–139, in relation to sexual assault of refugees and displaced women; Amnesty International, Bosnia-Herzegovina: Rape and Sexual Abuse by Armed Forces (1993); Helsinki Watch, War Crimes in Bosnia-Hercegovina (1993), Americas Watch and Women&s Rights Project, Untold Terror: Violence Against Women in Peru's Armed Conflict (1992) and Middle East Watch. A Victory Turned Sour, Human Rights in Kuwait Since Liberation (1991).Google Scholar

16. Equality theory is still the preferred option of liberal theorists as the mode of accommodating the demands of women for change. In the area of international law see Fernando, Teson, “Feminism and International Law: A Reply” (1993) 33 Virginia J.I.L. 647.Google Scholar

17. See supra n.5.

18. See e.g. Art.14 of the Geneva Convention relative to the Treatment of Prisoners of War of 12 Aug. 1949.

19. This was the view expressed by the UN Secretary General, Boutros Boutros-Ghali, at a forum on “Dignity for Women in War” in Sydney, Apr. 1995, and see the statement of Renee Guisan, member of the ICRC delegation to the Fourth World Conference on Women, Beijing, China, Sept. 1995. See also Report to the Secretary-General on Humanitarian Needs in Kuwait and Iraq, UN Doc.S/22366 (1991); Amnesty International, Report on the Gulf War (1991); Human Rights Watch, Needless Deaths in the Gulf War (1991); Harvard Study Team, Public Health in Iraq After the Gulf War (1991) and Health and Welfare in Iraq After the Gulf Crisis (1991), in particular chap.9, “Women Survey”.

20. For an account of rape in warfare over the centuries see Susan, Brownmiller, Against our Will: Men, Women and Rape (1975), pp.31–113 and see the sources cited supra n.3.Google Scholar

21. See Chinkin, , op. cit. supra n.3, at pp.327–328, illustrating the range of conflicts characterised by the sexual abuse of women.Google Scholar

22. See Maurice, Keen, The Laws of War in the Late Middle Ages (1965), pp.121–122Google Scholar and Theodor, Meron, Henry's Wars and Shakespeare's Laws (1993), pp.111–112.Google Scholar

23. See Ann, Orford, “The Politics of Collective Security” (1996) 17 Mich.J.I.L. 373Google Scholar and Julianne, Peck, “The U.N. and the Laws of War: How can the World's Peacekeepers be held Accountable?” (1995) 21 Syracuse J.I.L. & Com. 283 (detailing allegations of rape by UN soldiers in Bosnia-Herzegovina).Google Scholar

24. The loss of civilian life as a result of the coalition forces' bombing campaign in Iraq has been widely criticised. See Report to the Secretary-General, Report on the Gulf War and Needless Deaths in the Gulf War, op. cit. supra n.19.

25. See Judith Gail, Gardam. Non-Combatant Immunity as a Norm of International Humanitarian Law (1993), pp.56–58.Google Scholar

26. Guisan, statement supra n.19 and see also Harvard Study Team, Health and Welfare, op. cit. supra n.19 detailing the impact of the Gulf conflict on women's everyday lives and Change, Unheard Voices: Iraqi Women on War and Sanctions (1992).

27. See European Community Investigative Mission into the Treatment of Muslim Women in the former Yugoslavia, S/25240, 3 Feb. 1993, para.22. See generally “Refugee Women”, Refugees (UNHCR, 1995), Vol.100, detailing the particular burdens that refugee women carry as a result of displacement usually associated with armed conflict; UNICEF, The State of the World's Children (1996), referring to the greater economic responsibilities that women must assume in times of conflict; and Change, ibid.

28. See European Community Investigative Mission, idem, para.27 and “Refugee Women”, ibid.

29. See generally Theodor Meron, “The Protection of the Human Person under Human Rights Law and Humanitarian Law” (1992) 91/1 Bull.Hum.Rts.; Jacques Meurant, “Humanitarian Law and Human Rights Law: Alike Yet Distinct” and Louise Doswald-Beck and Sylvain Vite, “International Humanitarian Law and Human Rights Law” (1993) 293 lnt.Rev. Red Cross 89 and 94 respectively.

30. See Chris af, Jochnik and Roger, Normand, “The Legitimation of Violence: A Critical History of the Laws of War (1994) 35 Harv.I.L.J. 49, 58.Google Scholar

31. Doswald-Beck, and Vite, , op. cit. supra n.29, at p.98, point out that this is one reason for the preference of writers for the term the law of armed conflict or the law of war, rather than humanitarian law.Google Scholar

32. Jochnik, and Normand, , op. cit. supra n.30, at p.50.Google Scholar

33. To illustrate the power of the military in determining what the law will be, one has only to consider their role in the law-making processes. E.g. they have played a significant role in preventing the US to date from ratifying Protocol I. See George, Aldrich, “Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions” (1991) 85 A.J.I.L. 1Google Scholar and Theodor, Meron, “The Time has Come for the US to Ratify Geneva Protocol I” (1994) 88 A.J.I.L. 678.Google Scholar

34. The Third Geneva Convention, in relation to prisoners of war, has some 143 arts. and five annexes and goes to the lengths of stipulating what should be available in the prison canteen.

35. See Jochnik, and Normand, , op. cit. supra n.30, at pp.53–54, 68Google Scholar. Cf. a traditional description of the humanitarian ideal underlying the law of armed conflict and its relationship with military necessity by Gerald, Draper, “The Development of International Humanitarian Law”, in Jean, Pictet (Ed.), International Dimensions of Humanitarian Law (1988), p.67Google Scholar. See also Doswald-Beck, and Vite, , op. cit. supra n.29, at pp.95–101.Google Scholar

36. So, e.g., the rape of the enemy's women has traditionally been regarded as a perk of warfare and an inducement for the combatant: see sources cited supra n.22.

37. Paul, Kennedy and Andreopoulos, George J., “The Laws of War: Some Concluding Reflections”, in Michael, Howard, Andreopoulos, George J. and Schulman, Mark R. (Eds), The Laws of War: Constraints on Warfare in the Western World (1994), p.218.Google Scholar

38. See Meron, op. cit. supra n.1.

39. See e.g. Theodor, Meron, “On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument” (1983) 77 A.J.I.L. 589Google Scholar and Laura, Lopez, “Uncivil Wars: The Challenge of Applying International Humanitarian Law to Internal Armed Conflicts” (1994) 69 N.Y.U.L.Rev. 916. The Security Council is making a much needed contribution in this context with its approach to the mixed conflict in the former Yugoslavia and the civil conflict in RwandaGoogle Scholar: see Theodor, Meron, “International Criminalization of Internal Atrocities” (1995) 89 A.J.I.L. 554.Google Scholar

40. See Judith, Gardam, “Gender and Non-Combatant Immunity” (1993) 3 Trans.L. & Contemp. Problems 345.Google Scholar

41. See Peterson, V. Spike, “Security and Sovereign States: What Is at Stake in Taking Feminism Seriously”, in her (Ed.), Gendered Slates: Feminist (Re)Visions of International Relations Theory (1992), p.31 at pp.49–56Google Scholar and Judith, Stiehm, “The Protected, the Protector, the Defender”, in her (Ed.) Women and Men's Wars (1983), p.367.Google Scholar

42. See the sources cited supra n.2.

43. See generally Karen, Engle, “International Human Rights and Feminism: When Discourses Meet” (1992) 13 Mich.J.I.L. 517 for a discussion of the various rights-based analyses that characterise feminist international legal scholarship.Google Scholar

44. See e.g. Carol, Smart, Feminism and the Power of Law (1989), pp.138–159Google Scholar: cf. Patricia, Williams, “Alchemical Notes: Reconstructed Ideals From Reconstructed Rights” (1987) 22 Harv.C.R.-C.L.L.Rev. 401.Google Scholar

45. See e.g. Andrew, Byrnes, “Toward More Effective Enforcement of Women's Human Rights Through the Use of International Human Rights Law and Procedures”, in Cook. op. cit. supra n.2, at p.189Google Scholar and Galey, Margaret E., “International Enforcement of Women's Rights” (1984) 6 Hum.Rts.Q. 463.Google Scholar

46. See the sources cited supra n.2.

47. As feminists have demonstrated, the choice to leave the private sphere unregulated is not value free. See e.g. Margaret, Thornton, “Feminist Jurisprudence: Illusion or Reality?” (1986) 3 Aust.J.L. & Soc. 5.Google Scholar

48. See e.g. Katherine, O'Donovan, Sexual Divisions in Law (1985).Google Scholar

49. See Hilary, Charlesworth, Christine, Chinkin and Shelley, Wright. “Feminist Approaches to International Law” (1991) 85 A.J.I.L. 613, 625–630Google Scholar; Celina, Romany, “Women as Aliens: A Feminist Critique of the Public/Private Distinction in International Human Rights Law’ (1993) 6 Harv.H.R.J. 87Google Scholar: and Hilary, Charlesworth, “Worlds Apart: Public/Private Distinctions in International Law”, in Margaret, Thornton (Ed.), Public and private: Feminist Legal Debates (1995), p.243.Google Scholar

50. See e.g. Charlesworth, et al., idem, p.625Google Scholar and see also Hilary, Charlesworth, “Transforming the United Men's Club: Feminist Futures for the United Nations” (1994) 4 Trans.L. & Contemp. Problems 421.Google Scholar

51. But note the criticisms of the public/private dichotomy in Western liberal traditions: see e.g. Janet, Sharistanian (Ed.), Beyond the Public/Domestic Dichotomy: Contemporary Perspectives on Women's Public Lives (1987)Google Scholar. See also Karen, Engle. “After the Collapse of the Public/Private Distinction: Stralegizing Women's Rights”, in Dorinda, Dallmeyer (Ed.), Reconceiving Reality: Women and International Law (1993), p.143Google Scholar, who queries the success of this approach in international law. But cf. Charlesworth, , op. cit. supra n.49, at pp.252–254.Google Scholar

52. See Charlesworth, ibid.

53. See Charlesworth et al. loc. cit. supra n.49.

54. See Margareth, Etienne, “Addressing Gender-Based Violence in an International Context” (1995) 18 Harv.W.L.J. 139, 157–159.Google Scholar

55. Oloka-Onyango, J. and Sylvia, Tamale, “‘The Personal is Political’, or Why Women's Rights are Indeed Human Rights: An African Perspective on International Feminism” (1995) 17 Hum.Rts.Q. 691, 693Google Scholar. See also Chandra, Mohanty, “Cartographies of Struggle: Third World Women and the Politics of Feminism”, in Chandra, Mohanty, Ann, Russo and Lourdes, Torres (Eds), Third World Women and the Politics of Feminism (1991), p.1.Google Scholar

56. See Raimundo, Pannikar, “Is the Notion of Human Rights a Western Concept?” (1982), 120 Diogenes 75.Google Scholar

57. See further infra n.61 and accompanying text.

58. The difficulties and divisions this search can cause have been highlighted in the area of female genital surgeries. See Isabelle, Gunning, “Arrogant Perception. World Travelling and Multicultural Feminism: the Case of Female Genital Surgeries” (1991–1992) 23 Col.H.R.L.Rev. 189Google Scholar and Karen, Engle, “Female Subjects of Public International Law: Human Rights and the Exotic Other Female” (1992) 26 New Eng.L.Rev. 1509.Google Scholar

59. To establish this point one needs only to consider the very low level of acceptance of the treaty rules of armed conflict by Asian countries: see Christophe, Swinarski, “Regional Perspectives on International Humanitarian Law”, in William, Malley (Ed.). Shelters From the Storm: Developments in International Humanitarian Law (1995), p.323 and see generally International Dimensions of Humanitarian Law. op. cit. supra n.35.Google Scholar

60. So, e.g., although the provisions of Protocol I alter the requirements for combatant status to take account of the realities of guerrilla warfare in certain categories of wars of self-determination, they were adopted amid considerable controversy and arguably are based on a failure to appreciate the very nature of this type of fighter. See the discussion in Gardam, , op. cit. supra n.25, at pp.56–58 and 100–105.Google Scholar

61. See Geoffrey, Best, War and Law Since 1945 (1994), p.17.Google Scholar

62. See generally Keen. op. cit. supra n.22 and Best, ibid.

63. See generally Keen, ibid.

64. See the further discussion infra n.85 and accompanying text.

65. See Matthew, Ferretti “The Iran-Iraq War: United Nations Resolution of Armed Conflict” (1990) 35 Villanova L.Rev. 197, 197, 218–219, 225, 239–240.Google Scholar

66. See Sylvie-Stoyanka, Junod, Protection of the Victims of Armed Conflict Falkland- Malvinas Islands (1982) (ICRC. 1984).Google Scholar

67. For an analysis of the legal issues raised by the Gulf conflict, see Peter, Rowe (Ed.), The Gulf War 1990–91 in International and English Law (1993).Google Scholar

68. See United States: Department of Defense Report to Congress on the conduct of the Persian Gulf War—Appendix on the Role of the Law of War. repr. in (1992) 31 I.L.M. 612.Google Scholar

69. For a discussion of the privileging of the combatant by the law of armed conflict, see Gardam, , op. cit. supra n.40, at pp.351–355. The same phenomenon can be observed in relation to children, with the focus of efforts being attempts to regulate the use of child combatants. See Van Bueren, op. cit. supra n.4.Google Scholar

70. The regulation of weaponry in some contexts, however, is of even greater significance to civilians than combatants. An example is land mines. See Human Rights Watch, Landmines: A Deadly Legacy (1993).

71. See Judith Gail, Gardam, “The Law of Armed Conflict: A Gendered Regime”, in Dallmeyer, op. cit. supra n.51, p.171 at pp.183–188.Google Scholar

72. See Christine, Chinkin, “A Gendered Perspective to the International Use of Force” (1992) 12 Aust.Y.I.L. 279 and Orford, op. cit. supra n.23.Google Scholar

73. For a discussion of the principle of proportionality in both the law on the use of force and the law of armed conflict, see Gardam, Judith G., “Proportionality and Force in International Law” (1993) 87 A.J.I.L. 391.Google Scholar

74. Arts.48–58 of Protocol I generally provide a detailed set of rules for the protection of civilians against the effects of hostilities. For a full description of their operation see Gardam, , op. cit. supra n.25, at pp.111–121.Google Scholar

75. See Matheson, Michael J., “Customary Law and Additional Protocol I to the Geneva Conventions for Protection of War Victims: Future Directions in Light of the U.S. Decision not to Ratify” (1987)Google Scholar 81 Proc. Am.Soc.I.L. 26. For an analysis of the attitude of the US and its coalition allies to the legal position in relation to indiscriminate attacks see Christopher Greenwood, “Customary International Law and the First Geneva Protocol of 1977 in the Gulf Conflict”, in Rowe, , op. cit. supra n.67, p.63 at pp.76–79.Google Scholar

76. See the sources cited supra n.24.

77. See Department of Defense Report, Appendix, supra n.68. Commentators have not been entirely uncritical of the conduct of the campaign. See e.g. Oscar, Schachter, “United Nations Law in the Gulf Conflict” (1991) 85 A.J.I.L. 452, 465Google Scholar; Weston, Burns H., “Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy” (1991) 85 A.J.I.L. 516, 529Google Scholar and Judith Gail, Gardam, “Noncombatant Immunity and the Gulf Conflict” (1992) 32 Virginia J.I.L. 813. Most of the criticism in the area of the law of armed conflict, however, has been directed at Iraq's conduct.Google Scholar

78. See Gardam, , op. cit. supra n.40, at pp.351–355. E.g. the rules in relation to the treatment of prisoners of war are extremely detailed and specific. They, moreover, have a long and complex historyGoogle Scholar:see generally Allan, Rosas, The Legal Status of Prisoners of War. A Study in International Humanitarian Law Applicable in Armed Conflicts (1976).Google Scholar

79. I use the term sexual violence to cover a variety of abuses of women that occur in armed conflict, rape being just one of them. The conflict in the former Yugoslavia demonstrates the differing degrees and forms that sexual violence against women can take in armed conflict and the problems that this complexity poses to attempts to reform the law. See generally Jennifer, Green, Rhonda, Copelon, Patrick, Cotter and Beth, Stephens, “Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique” (1994) 5 Hastings Women's L.J. 171.Google Scholar

80. See e.g. Ustinia, Dolgopol and Snehal, Paranjape, Comfort Women, an Unfinished Ordeal (1994) pp.15–19.Google Scholar

81. See e.g. the sources cited supra n.3.

82. Although the Commission created by the victors after the First World War to enquire into breaches of the laws of war by Germany and its allies (The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (1919)) designated rape as a war crime that should lead to criminal responsibility, no prosecutions for rape resulted from the Commission's work: see Leon, Friedman (Ed.), The Law of War: A Documentary History, Vol.1 (1972), pp.776–777. Despite the widespread resort to rape in the Second World War there was no suggestion that it be included in the jurisdiction of the Nuremberg Tribunal, although there were prosecutions for rape by the International Military Tribunal at Tokyo.Google Scholar

83. Rape was specifically prohibited by Arts.XLIV and XLVII of the Lieber Code, General Orders No.100, 24 Apr. 1863 (repr. in Friedman, idem, p.167): Art.XXXVIII of the Declaration of Brussels Concerning the Laws and Customs of War 1874 (repr. in idem) referred to the need to respect the “honour and rights of the family”: the Oxford Manual (repr. in Dietrich, Schindler and Jiri, Toman (Eds), The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents (1973) p.35) required respect for “family honour” in Art.49 and Art.XLVI of the Hague Regulations Respecting the Laws and Customs of War on Land, annexed to the Hague Conventions with respect to the Laws and Customs of War on Land of 1899 and 1907, provided for family honour to be respected.Google Scholar

84. See Gardam, , op. cit. supra n.40, at pp.356–359.Google Scholar

85. See e.g. Niarchos, , op. cit. supra n.14, at p.673 (who is well aware, however, of the equivocal nature of the provisions in relation to rape) and Meron, op. cit. supra n.39.Google Scholar

86. As feminists have argued, rape is used by men in warfare to humiliate and bring dishonour upon the enemy men who have been unable to protect their women: see Brown, Miller, op. cit supra n.20, at p.38Google Scholar and Chinkin, , op. cit. supra n.3, at p.328.Google Scholar

87. The definition of “Protected Persons” in Art.4 does not cover a party's own nationals or nationals of a neutral State and co-belligerent State who are in the territory of a belligerent State. for a comprehensive description of the exceptions to protected status under the Fourth Convention see Michael, Botheet al. (Eds), New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (1982), pp.442et seq.Google Scholar

88. See e.g. Art. 146 of the Fourth Geneva Convention (common to all the Geneva Conventions) which imposes these obligations on States and the art. common to the four Geneva Conventions defining grave breaches (Art.50, Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 Aug. 1949, Art.51, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 Aug. 1949, Art.130 of the Third and Art.147 of the Fourth Geneva Conventions).

89. See Yougindra, Khushalani, Dignity and Honour of Women as Basic and Fundamental Human Rights (1982), pp.71–73Google Scholar and Meron, , op. cit. supra n.3, at p.426.Google Scholar

90. Pictet, Jean S. (Ed.), Commentary on the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958), p.204.Google Scholar

91. However, the fact that the list of grave breaches in the conventional rules is exhaustive does not prevent other offences being subject to universal jurisdiction at customary international law: see Yves, Sandozet al. (Eds), Commentary on the Additional Protocols of8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), p.976 n.11.Google Scholar

92. See Pictet, , op. cit. supra n.90, at p.39.Google Scholar

93. ICRC, Update on Aide-Mémoire of 3 Dec. 1992. Meron, , op. cit. supra n.3, at p.427, points out that the US Department of State interprets the conventional provisions as including rape as a grave breach.Google Scholar

94. See Final Report, supra n.3, at para.105.

95. See Art.I of Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977, for its field of application.

96. Meron, op. cit. supra n.3 and see Christine Chinkin's careful analysis of the potential of crimes against humanity as a method of punishing rape committed during international armed conflict (op. cit. supra n.3, at pp.332–333).

97. Prosecutions for rape in the former Yugoslavia could, as argued above, be covered by the definition of grave breaches set out in Art.2 of the statute of the international tribunal: “wilfully causing great suffering or serious injury to body and health”. However, the specific reference in the draft statute to rape as a crime against humanity and the fact that the indignation expressed in the international community has been in relation to the systematic nature of these crimes probably make this unlikely.

98. See Anthony D'Amato's review of Cook. op. cit. supra n.2, in (1995) 89 A.J.I.L. 840, 842. Cf. the approach of Martti Koskenniemi, in his review of Dallmeyer, op. cit. supra n.51, in idem, p.227.Google Scholar

99. Koskenniemi, , idem, p.228.Google Scholar

100. Reparations for Injuries Suffered in the Service of the United Nations I.C J.Rep. 1949, 174 and see Gardam, Judith G., “Legal Restraints on Security Council Military Enforcement Action” (1996) 17 MichJ.I.L. 285, 312–320.Google Scholar