Arimatsu, Louise
(2007)
Understanding defences in international criminal law.
PhD thesis, London School of Economics and Political Science.
Abstract
The objective of this study is to offer a different way of seeing and understanding defences in international criminal law. By contrast to the standard texts on defences which identify what the law is - and in some few cases to suggest what it should be - this work seeks to understand why the law is the way it is, and in doing so, reveal the gender biases that international criminal law defences conceal. International criminal law evolved out of a need to respond to gross wrongdoings that amounted to international offences perpetrated during conflict. The paradox is that conflict is about the 'legalised' use of violence by men and it is through this process that all too often women, subsumed within the category of civilians, become the direct and indirect victims of that violence. From its inception international criminal law has primarily addressed wrongs committed in conflict - but as perceived and defined by men. Moreover, because war crimes trials have always been about selective narratives that are controlled by the most powerful, women's voices have consistently been excluded. This study questions whether, as with offences, defences have evolved in such a way as to prefer the interests of the male soldier over the civilian and thereby foster a gendered view of defences in international criminal law. This work has been guided by some of the more recent theoretical debates that have engaged the scholarly community on the domestic level that challenges the traditional explanations of defences and that exposes the law to be fundamentally incoherent and characterised by bias. It offers an alternative perspective on defences in international criminal law that seeks to understand the interests that legal defences serve to protect. This thesis concludes that defences play a vital function in regulating relations between individuals and between the state and citizens by articulating the responsibilities of the different participants in a social grouping. Defences provide a powerful means through which the law delineates a society's moral boundaries and an effective mechanism through which specific normative values of liberal states are conveyed. The overriding objective of this study is to emphasise the need to take greater account of the inherent gender bias that continues to characterise the law in the process of judging the defendant who is charged with serious violations of international law perpetrated in a conflict.
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