All civilians – men and boys as well as women and girls – are at risk of sexual and gender-based violence in peacetime and during armed conflict. All are protected against such violence under international humanitarian law (IHL) during situations of armed conflict and by international human rights law. This protection applies at all times and in all circumstances. As the International Committee of the Red Cross (ICRC) has stated: ‘While the prohibition of sexual violence applies equally to men and women, in practice women are much more affected by sexual violence during armed conflicts.’ This chapter explores the legal protection against sexual violence and describes ongoing initiatives to tackle rape as a weapon of war.

Chapter 3 addresses the potential for norm conflict arising from the parallel application of investment treaties and international humanitarian law. It argues that such conflict must be avoided through treaty interpretation. Drawing from their interaction with human rights law, the rules of armed conflict should inform the meaning of investment treaty clauses through ‘systemic integration’. The chapter shows that investment tribunals possess the authority and duty to conduct such a subordinate examination under humanitarian law as part of the interpretive exercise. Although standards of protection may, as a result, be lower than in peacetime, the chapter argues that giving effect to humanitarian rules through investment law ensures the normative appeal of investment treaties. It allows taking into account military concerns and rejects special treatment of foreign investors compared to ‘ordinary’ civilians. At the same time, the chapter highlights, investment treaties give investors a unique opportunity to enforce international rules during armed conflict and secure compensation for unlawful conduct in hostilities.

This chapter outlines and discusses the policies and practices relating to the protection of civilians within the United Nations (UN) system. First, it reviews the policy work of the Department of Peace Operations (DPO) with respect to UN peace operations. It then considers efforts to protect civilians by a range of UN agencies and bodies. These include the Office for the Coordination of Humanitarian Affairs (OCHA), which is responsible for drafting the Secretary-General’s reports to the Security Council on the protection of civilians; the Office of the High Commissioner for Human Rights, which engages in protection at field level as well as providing guidance on international standards; UNICEF, which seeks to protect children affected by armed conflict; UNHCR; and the World Food Programme (WFP).

Besides Switzerland, the United Kingdom is the only State to have elaborated a national strategy on the protection of civilians. A formal 2010 UK Government Strategy on the Protection of Civilians in Armed Conflict has been supplemented by an August 2020 Policy Paper, UK Approach to Protection of Civilians in Armed Conflict. The Policy Paper was the joint work of the Department for International Development, the Foreign & Commonwealth Office, and the Ministry of Defence.

Chapter 2 accounts for the selection of case law which forms the basis of the legal analyses of Article 13. The chapter, further, accounts for three building blocks of importance for the analyses. First, how the Court has provided little abstract and principled reasoning concerning the content of Article 13. Second, how the Court's method of interpretation, as such, provides few answers as to how Article 13 could and should be construed and applied. Third, how the wider precedential effect of the Court's judgments may influence how the Court construes and applies Article 13 in individual cases. These building blocks explain, at least partly, why there there has been, and still is, considerable uncertainty concerning the content of the case law and why the Court's law-making potential concerning Article 13 still is large. The chapter, also, briefly explains how legal literature has been used to clarify the content of Article 13 and why a larger comparative analysis has not been performed.

Chapter 1 accounts for the goals and limits of the book and provides an overview of the content, uncertainty, and development of Article 13 in the Court's case law. It describes how Article 13 has developed into a proper right encompassing both procedural rights of access to justice and a substantive right to redress. It, also, explains how Article 13 not only grants a right for the individual, but is an important expression of the principle of subsidiarity upon which the system for the protection of human rights under the Convention is based. Yet, even though the case law concerning Article 13 is abundant, there is still considerable uncertainty concerning the content and scope of the obligations arising therefrom. Further, the case law reveals diverging opinions among judges as to how Article 13 could be further developed. This is connected to the Court's case load and the calls for the improvement of domestic remedies and a more subsidiary protection of human rights, most notably, in the process of reform of the Court and Convention system. How Article 13 could and should be a tool (or not) to mitigate such systemic concerns is a central part of the normative goal of the book.

Chapter 5 commences the book’s analysis of the operation of the most important investment treaty standards in armed conflict. It focuses on so-called war or armed conflict clauses. These provisions, present in many investment agreements, establish state obligations vis-à-vis investors who have suffered losses during armed conflict and other emergencies. Considering recent arbitral practice in the context of the so-called Arab Spring, the chapter gives guidance on how to understand these understudied clauses, their specific elements as well as their systematic function. While ‘basic’ armed conflict clauses establish a duty of non-discrimination in case the host state compensates other investors for losses suffered, ‘extended’ clauses give a standalone right to claim compensation for certain losses. These clauses convey such a right, among others, in case of requisitioning or unnecessary destruction at the hands of the state’s authorities or armed forces. The chapter shows how the general rules of attribution as well as the rules of international humanitarian law should crucially inform the application of these extended armed conflict clauses.

Lesbian, gay, bisexual, trans, and intersex (LGBTI) persons are at particular risk of being targeted in situations of violence because of their gender or sexual preference. Discrimination against LGBTI persons could be based on sexual orientation (to whom someone is attracted); gender identity (how people define themselves, irrespective of biological sex), gender expression (how gender is expressed, through clothing, hair, or make-up), or sex characteristics (for example, genitals, chromosomes, reproductive organs, or hormone levels). The UN Special Rapporteur on extrajudicial, summary or arbitrary executions has observed that LGBTI persons are especially vulnerable to extrajudicial killings. The prohibition on executing LGBTI persons on the basis of their gender or sexual identity is not only a customary rule, but it is also a peremptory norm of international law.

While women face a myriad of threats to their physical well-being in any situation of armed conflict, there is a particularly heightened risk of sexual or gender-based violence, including rape. Armed conflict, including military occupation, often leads to increased prostitution, trafficking in women, and sexual assault of women, which demands specific protective and punitive measures. Within the UN system, the position of Special Representative of the Secretary-General on Sexual Violence in Conflict was established by UN Security Council Resolution in 2009 to serve as the UN spokesperson and political advocate on conflict-related sexual violence.

Chapter 6 accounts for the material, personal, territorial, and temporal scope of the right to an effective remedy in Article 13.

During armed conflict, children are protected both generally (as persons) and specifically (as children) by international humanitarian law and by international human rights law. Their protection under IHL during the fighting is first and foremost in their capacity as civilians, although special protection is also afforded to children against recruitment, as well as when they are detained by an enemy or are otherwise in its power. International human rights law offers parallel protection to children and, when IHL is not applicable, will be the primary source of protection under international law as this chapter describes.

This chapter summarises the main elements in international crimes against civilians in situations of armed conflict and illustrates the prosecution of offenders. Only a tiny percentage of the crimes actually committed are even properly investigated and only in even fewer cases are the perpetrators actually prosecuted. This is despite the fact that the extent of unlawful violence against civilians would be greatly reduced by substantially enhanced efforts to ensure respect for domestic and international law by holding individuals to due account for their illegal actions.