Mind the Gap: Conflict-Related Sexual Violence and the Obligations of Armed Non-State Actors Under International Law

Abstract: War has changed. Since the Second World War, State monopoly on resort to violence has been significantly subverted. Instead, contemporary armed conflict witnesses the pervasiveness of armed non-State actors and the threat they pose to peace, security and human rights. Simultaneously, conflict- related sexual violence is a pervasive practice in contemporary conflicts, of which armed non-State actors are the major perpetrators. These interlinkages are obvious on the battlefield, but not reflected in a coherent approach under international law. The present thesis examines this connection: the definition of conflict-related sexual violence and how it corresponds to obligations of armed non-State actors under international law. This thesis argues that the approach to conflict-related sexual violence and the approach to armed non-State actors is fragmented under international law, resulting in discrepancies affecting the protection of victims and survivors of conflict-related sexual violence perpetrated by armed non-State actors. After contextualising contemporary armed conflicts and the problems elevated with regards to conflict-related sexual violence and armed non-State actors, this thesis examines the definition of conflict-related sexual violence in relation to norms of international law. Specifically, the definition of conflict-related sexual violence is contrasted to the corresponding proscriptions of rape and sexual violence under international humanitarian law, international criminal law and international human rights law applicable to armed non-State actors. This thesis concludes that there are discrepancies between the definition of conflict-related sexual violence and the corresponding proscriptions of international humanitarian law and international criminal law. This has particular consequences when the perpetrator of conflict-related sexual violence is an armed non-State actor, as the source, content and scope of armed non-State actors’ obligations under international human rights law is an uncertain and still-evolving field of international law. This affects the obligations and accountability of armed non-State actors under international law, and ultimately also the protection afforded to victims and survivors of conflict-related sexual violence under international law.