Women, rape and warfare: a gendered critique of Just War theory and the Immunity principle

Abstract

The just war tradition is based on two principles: jus ad bellum - just war-making, and jus in bello - just war-fighting. Jus in bello contains the non-combatant immunity principle. This “protects” civilians during war giving them “immunity” from the violence of war-fighting. Women are, for the most part, non-combatants. Still, their experiences during war are far from “protected”. Rape has been a feature of both traditional and civil warfare. The just war tradition is fundamentally ill-equipped to confront the lived experience of rape and sexual violence in the former and does not apply in the latter. Following the widespread use of rape in the conflicts in Rwanda and the former Yugoslavia, the raping of women in combat and occupation zones is now considered a human rights violation and treated as a crime against humanity. Yet, despite developments in international law and policy making on sexual violence in armed conflict, rape continues to be used as a weapon of war. This paper will consider the experiences of women who are raped during war and civil conflicts. It will demonstrate that the immunity principle does not protect women from the realities of war or other armed conflict. This paper will consider strategies of prevention and protection for women