1 International Criminal tribunal for Rwanda (ICTR), Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment (Trial Chamber), 2 September 1998, para. 688: “The Tribunal considers sexual violence, which includes rape, as any act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact.” For Gender-based violence (GBV), see International Criminal Court (ICC) Office of the Prosecutor, Policy Paper on Sexual and Gender-Based Crimes, 5 June 2014, p. 3: “Gender-based crimes are those committed against persons, whether male or female, because of their sex and/or socially constructed gender roles. Gender-based crimes are not always manifested as a form of sexual violence. They may include non-sexual attacks on women and girls, and men and boys, because of their gender.” See also Inter-Agency Standing Committee (IASC), The Gender Handbook for Humanitarian Action, February 2018, p. 19: “GBV is an umbrella term for any harmful act that is perpetrated against a person's will and that is based on power imbalances and socially ascribed (i.e., gender) differences between women, girls, men and boys. It includes acts that inflict physical, sexual or mental harm or suffering, threats of such acts, coercion and other deprivations of liberty.” For a discussion on the relationship between sexual violence and GBV, see Gaggioli, Gloria, “Sexual Violence in Armed Conflicts: A Violation of International Humanitarian Law and Human Rights Law”, International Review of the Red Cross, Vol. 96, No. 894, 2014, p. 509CrossRefGoogle Scholar.

2 United Nations (UN) General Assembly, Report of the Independent Expert on Protection against Violence and Discrimination Based on Sexual Orientation and Gender Identity, UN Doc. A/72/172, 19 July 2017, p. 3, para. 2: “Sexual orientation denotes a person's physical, romantic and/or emotional attraction towards others, while gender identity concerns a person's self-perceived identity, which may be different from the sex assigned at birth, as well as the expression of gender identity.” For the acronym LGBTQI, see ibid., p. 4, para. 7.

3 UN Office of the High Commissioner for Human Rights (UN Human Rights), Discrimination and Violence against Individuals Based on Their Sexual Orientation and Gender Identity, UN Doc. A/HRC/29/23, 4 May 2015, p. 4.

4 UN Human Rights, “Homophobic and Transphobic Violence Fact Sheet”, 2017, p. 1, available at: https://www.unfe.org/wp-content/uploads/2017/05/Homophobic-and-Transphobic-Violence.pdf (all internet references were accessed in September 2021).

5 UN Human Rights, above note 3, p. 12, para. 42: “Discrimination against LGBT individuals is often exacerbated by other identity factors, such as sex, ethnicity, age and religion, and socioeconomic factors, such as poverty and armed conflict.” For a discussion on the hyper-masculine context of armed conflict, see Jones, Adam, “Straight as a Rule: Heteronormativity, Gendercide, and the Non-Combatant Male”, Men and Masculinities, Vol. 8, No. 4, 2006CrossRefGoogle Scholar.

6 UN Security Council, Conflict-Related Sexual Violence, UN Doc. S/2020/487, 3 June 2020, p. 6, para. 14. See also IASC, above note 1, p. 18.

7 UN Human Rights, above note 3, p. 9, para. 31; p. 10, paras 34–38; UN Security Council, Conflict-Related Sexual Violence, UN Doc. S/2015/203, 23 March 2015, paras 6, 20, 30, 61; UN Security Council, Conflict-Related Sexual Violence, UN Doc. S/2021/312, 30 March 2021, para. 60. For an understanding of the vulnerability that comes with detention and any form of deprivation of liberty, see Aeschlimann, Alain, “Protection of Detainees: ICRC Action Behind Bars”, International Review of the Red Cross, Vol. 87, No. 857, 2005, pp. 83–84CrossRefGoogle Scholar: “Every detainee is in a situation of particular vulnerability, both vis-à-vis their captor and in relation to their environment.”

8 UN General Assembly, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/25/65, 12 February 2014, p. 12, paras 67–70.

9 UN Human Rights, Report of the Group of Eminent International and Regional Experts on Yemen, UN Doc. A/HRC/45/6, 28 September 2020, pp. 11–12.

10 UN Security Council, 2015, above note 7, p. 7, para. 20.

11 UN General Assembly, above note 8.

12 UN Human Rights, above note 9, p. 12, para. 71.

13 UN Security Council, 2015, above note 7, p. 7, para. 20. See also Margalit, Alon, “Still a Blind Spot: The Protection of LGBT Persons during Armed Conflict and Other Situation of Violence”, International Review of the Red Cross, Vol. 100, No. 1–3, 2018, pp. 240–241CrossRefGoogle Scholar.

14 UN Human Rights, above note 3, p. 7, paras 21–23; p. 9, paras 29–30; p. 10, paras 34–38.

15 A. Jones, above note 5, p. 453; see also Sivakumaran, Sandesh, “Male/Male Rape and the ‘Taint’ of Homosexuality”, Human Rights Quarterly, Vol. 27, No. 4, 2005CrossRefGoogle Scholar.

16 UN Security Council, Conflict-Related Sexual Violence, UN Doc. S/2019/280, 29 March 2019, p. 6, para. 19; see also UN Security Council, above note 6.

17 UN Security Council, above note 6; see also S. Sivakumaran, above note 15; A. Jones, above note 5, p. 453.

18 UN Human Rights, above note 3, p. 7, para. 21; see also Dolan, Chris, “Letting Go of the Gender Binary: Charting New Pathways for Humanitarian Interventions on Gender-Based Violence”, International Review of the Red Cross, Vol. 96, No. 894, 2014, p. 489CrossRefGoogle Scholar.

19 Annyssa Bellal, The War Report: Armed Conflicts in 2018, Geneva Academy of International Humanitarian Law and Human Rights (Geneva Academy), Geneva, April 2019, p. 19: “At least a total of 51 non-international armed conflicts occurred in 2018 in the territory of 22 states.” See also International Committee of the Red Cross (ICRC), Commentary on the Third Geneva Convention: Convention (III) Relative to the Treatment of Prisoners of War, 2nd ed., Geneva, 2020 (ICRC Commentary on GC III), para. 386: “While international armed conflicts still occur, the vast majority of recent armed conflicts have been non-international in character.” For a definition of non-international armed conflict, see International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Duško Tadić aka “Dule”, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal against Jurisdiction, 2 October 1995, para. 70: “[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” For a discussion on conflict classification, see Vité, Sylvain, “Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations”, International Review of the Red Cross, Vol. 91, No. 873, 2009CrossRefGoogle Scholar. The classification of armed conflicts done by the Geneva Academy does not necessary reflect the views of the ICRC.

20 Common Article 3 is found in all four Geneva Conventions: Geneva Convention (I) for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention (II) for the Amelioration of the Conditions of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (GC III); Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV).

21 Common Art. 3(1).

22 Vienna Convention on the Law of Treaties, 1155 UNTS 331, 23 May 1969 (entered into force 27 January 1980) (VCLT), Art. 31.

23 Ibid., Art. 31(1).

24 Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflict, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978).

25 VCLT, above note 22, Art. 31(2)(b).

26 Ibid., Art. 31(3)(c).

27 Ibid., Art. 31(1). For a discussion on the general rule of treaty interpretation, see Dörr, Oliver, “Article 31: General Rule of Interpretation”, in Dörr, Oliver and Schmalenbach, Kristen (eds), Vienna Convention on the Law of Treaties: A Commentary, Springer, Berlin, 2018, pp. 557–616Google Scholar. See also Villiger, Mark Eugen, Commentary on the 1969 Vienna Convention on the Law of Treaties, Martinus Nijhoff, Leiden and Boston, MA, 2009, pp. 415–441CrossRefGoogle Scholar.

28 ICRC Commentary on GC III, above note 19, para. 388: “Despite these developments, common Article 3 remains the core provision of humanitarian treaty law for the regulation of non-international armed conflicts.”

29 ICTY, Tadić, above note 19.

30 Common Art. 3(1)(a).

31 Common Art. 3(1)(c).

32 Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005CrossRefGoogle Scholar (ICRC Customary Law Study), pp. 306–319, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1.

33 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, 27 June 1986, ICJ Reports 1986, paras 218–219.

34 Common Art. 3(1) (emphasis added).

35 Ibid.; see also ICRC Commentary on GC III, above note 19, para. 608.

36 A. Margalit, above note 13, p. 253. See also AP II, Art. 13(2); ICRC Customary Law Study, above note 32, Rule 1, p. 3: “The Parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.” For a discussion on the principle of distinction, see Pictet, Jean, “The Principles of International Humanitarian Law (II)”, International Review of the Red Cross, Vol. 6, No. 67, 1966, p. 518Google Scholar.

37 Common Art. 3(1) (“Persons taking no active part in the hostilities … shall in all circumstances be treated humanely”); AP II, Art. 13(2).

38 See UN General Assembly, above note 8, p. 12, para. 70; UN Human Rights, above note 9, p. 12, para. 71; Thylin, Theresia, “Violence, Toleration, or Inclusion? Exploring Variation in the Experiences of LGBT Combatants in Colombia”, Sexualities, Vol. 23, No. 3, 2020, p. 4CrossRefGoogle Scholar.

39 T. Thylin, above note 38, p. 6; see also Sassòli, Marco, International Humanitarian Law: Rules, Controversies and Solutions to Problems Arising in Warfare, Edward Elgar, Cheltenham, 2019, p. 559CrossRefGoogle Scholar.

40 GC III, Arts 21, 22. For an understanding of detention outside a criminal process (internment) during non-international armed conflict, See ICRC Commentary on GC III, above note 19, paras 755–758; see also A. Margalit, above note 13, p. 254.

41 Statute of the International Court of Justice, 1 UNTS XVI, 24 October 1945 (ICJ Statute), Art. 38(1)(d); for an understanding of the influence of the commentaries of the ICRC on the Geneva Conventions, see Sivakumaran, Sandesh, “The Influence of Teachings of Publicists on the Development of International Law”, International and Comparative Law Quarterly, Vol. 66, No. 1, 2017CrossRefGoogle Scholar.

42 ICRC Commentary on GC III, above note 19, para. 605.

43 Ibid.

44 The ICRC Commentary on GC III, above note 19, does, however, refer to “gender” and “sexual orientation” as prohibited grounds of discrimination in relation to the obligation of humanitarian bodies to provide impartial humanitarian assistance: see, for example, para. 831 (“The Geneva Conventions require a humanitarian organization wishing to offer its services on the basis of Common Article 3 to be ‘impartial’”) and fn. 778 (“[Humanitarian] assistance must be provided according to the principle of impartiality, which requires that it be provided solely on the basis of need and in proportion to need. This reflects the wider principle of non-discrimination: that no one should be discriminated against on any grounds of status, including … gender [and] sexual orientation”).

45 Plant, Richard, The Pink Triangle: The Nazi War against Homosexuals, Holt Paperbacks, New York, 2011, pp. 73–87Google Scholar.

46 T. Thylin, above note 38, pp. 6–8; Susann Aboueldahab, “Gender-Based Persecution as a Crime Against Humanity: A Milestone for LGBTQI Rights before the Colombian Special Jurisdiction for Peace”, EJIL: Talk!, 4 May 2021, available at: www.ejiltalk.org/gender-based-persecution-as-a-crime-against-humanity-a-milestone-for-LGBTQI-rights-before-the-colombian-special-jurisdiction-for-peace/.

47 Thompson, Della, The Oxford Quick Reference Dictionary, Oxford University Press, New York, 1998, p. 200Google Scholar; see also “Criteria”, Collins Online Dictionary, available at: www.collinsdictionary.com/dictionary/english/criteria.

48 ICRC Commentary on GC III, above note 19, para. 607: “Unlike other provisions of humanitarian law, common Article 3 does not list ‘nationality’ as a prohibited criterion.”

49 Ibid., para. 608, “Common Article 3 is strictly humanitarian in character. … It is focused exclusively on ensuring that every person not or no longer actively participating in the hostilities is treated humanely.”

50 Jean Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary, Vol. 3: Convention (III) relative to the Treatment of Prisoners of War, ICRC, Geneva, 1960, p. 40. In the context of the omission of nationality, it was held that “[i]t would be the very denial of the spirit of the Geneva Conventions to avail oneself of the fact that the criterion of nationality had been set aside as a pretext for treating foreigners, in a civil war, in a manner incompatible with the requirements of humane treatment, for torturing them, or for leaving them to die of hunger.”

51 Ibid. See also M. E. Villiger, above note 27, p. 426: “The prohibition of the abuse of rights, flowing from good faith, prevents a party from evading its obligations and from exercising its rights in such a way as to cause injury to the other party.”

52 ICRC Customary Law Study, above note 32, Rule 88, p. 308; ICJ Statute, above note 41, Art. 38(1)(b). Customary international law is considered a binding source of international law existing independently from treaty law and can therefore be used in aid of the interpretation of treaty law. In this regard, see ICJ, Nicaragua, above note 33, para. 174.

53 M. Sassòli, above note 39, p. 560; A. Margalit, above note 13. For an understanding of a “good faith” interpretation, see M. E. Villiger, above note 27, p. 425: “good faith requires the parties to a treaty to act honestly, fairly and reasonably, and to refrain from taking unfair advantage”.

54 M. Sassòli, above note 39, p. 560. See also UN Human Rights, Born Free and Equal: Sexual Orientation, Gender Identity and Sex Characteristics in International Human Rights Law, HR/PUB/12/06/Rev.1, 2019.

55 ICTY, Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Opinion and Judgment (Trial Chamber), 7 May 1997, para. 572; ICC, Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04-02/06, Judgment (Trial Chamber), 8 July 2019, para. 731.

56 M. Sassòli, above note 39, p. 560; A. Margalit, above note 13, p. 251.

57 M. E. Villiger, above note 27, p. 426.

58 VCLT, above note 22, Art. 31(1).

59 ICRC Commentary on GC III, above note 19, para. 390.

60 Ibid., para. 89: “The overall object and purpose of the Third Convention is to ensure that prisoners of war are humanely treated at all times, while allowing belligerents to intern captured enemy combatants to prevent them from returning to the battlefield.” See also para. 90: “It should be recalled that common Article 3 provides the Third Convention, and the other Conventions, with an additional object and purpose, as it serves to protect persons not or no longer participating in hostilities, including persons deprived of liberty, in situations of non-international armed conflict.”

61 Common Art. 3(1).

62 Jean Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary, Vol. 4: Convention (IV) relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, p. 204; GC III, Art. 13; GC IV, Art. 27; ICRC Commentary on GC III, above note 19, para. 584.

63 ICRC Commentary on GC III, above note 19, para. 584. For an in-depth discussion on the notion of “humane treatment”, see Droege, Cordula, “In Truth the Leitmotiv: The Prohibition of Torture and Other Forms of Ill-Treatment in International Humanitarian Law”, International Review of the Red Cross, Vol. 89, No. 867, 2007CrossRefGoogle Scholar; see also J. Pictet, above note 36, pp. 518–519.

64 ICRC Commentary on GC III, above note 19, para. 587.

65 Ibid.: “… taking into account both objective and subjective elements, such as the environment, the physical and mental condition of the person, as well as their age, social, cultural religious or political background and past experiences”.

66 Ibid., para. 587.

67 Ibid., para. 592.

68 ICRC Customary Law Study, above note 32, Rule 87, p. 307.

69 Ibid.

70 Ibid., Rule 87, p. 308.

71 See, for example, HRC Res. 17/19, “Human Rights, Sexual Orientation and Gender Identity”, UN Doc. A/HRC/RES/17/19, 14 July 2011; UN Human Rights, above note 3; UN Human Rights, above note 4; UN General Assembly, above note 2. See also International Commission of Jurists, Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, March 2007 (Yogyakarta Principles).

72 UN Human Rights, above note 54.

73 ICJ Statute, above note 41, Art. 38(1)(d). Judicial decisions are considered a subsidiary means for the determination of the rules of international law.

74 ICTY, Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgment (Trial Chamber), 25 June 1999, para. 49.

75 Ibid., para. 49.

76 ICRC Commentary on GC III, above note 19, para. 589.

77 Ibid., para. 732.

78 ICTR, Prosecutor v. Muvunyi, Case No. ICTR-2000-55A-T, Judgment (Trial Chamber), 18 September 2006, para. 528.

79 ICTR, Prosecutor v. Kamuhanda, Case No. ICTR-95-54A-T, Judgment (Trial Chamber), 22 January 2004, para. 710.

80 SCSL, Prosecutor v. Brima, Case No. SCSL-2004-16-A, Judgment (Appeals Chamber), 22 February 2008, para. 184.

81 ICTY, Aleksovski, above note 74, para. 49.

82 UN General Assembly, above note 8; UN Human Rights, above note 4; UN Human Rights, above note 9; UN Human Rights, above note 14.

83 Kolb, Robert and Hyde, Richard, An Introduction to the International Law of Armed Conflict, Bloomsbury, London, 2008, p. 45Google Scholar. For a discussion on the distinction between “Hague law” and “Geneva law”, see Pictet, Jean, “The Principles of International Humanitarian Law”, International Review of the Red Cross, Vol. 6, No. 66, 1966, pp. 456–458Google Scholar; see also J. Pictet, above note 36, p. 519.

84 J. Pictet, above note 36, p. 519.

85 R. Kolb and R. Hyde, above note 83, pp. 45–46.

86 Ibid.

87 M. Sassòli, above note 39, p. 559.

88 See, for example, ICRC Commentary on GC III, above note 19, para. 2104: “[T]he requirement of separate dormitories may also extend to other categories of persons with distinct needs or facing particular risks where not doing so would violate the obligation of humane treatment.”

89 Ibid., para. 612: “This allows for differential treatment that in fact serves the purpose of realizing a person's humane treatment.”

90 Ibid., para. 591: “State practice has called for treatment that respects a person's inherent dignity as a human being.”

91 Ibid., para. 587. Sensitivity towards an individual's inherent status is held to contribute to the understanding of “humane treatment” enshrined in common Article 3.

92 R. Kolb and R. Hyde, above note 83, p. 46.

93 See above note 24.

94 VCLT, above note 22, Art. 31(2)(b).

95 Ibid.; see also M. E. Villiger, above note 27, pp. 429–430: “The agreement or instrument mentioned in para. 2 as a means of interpretation will concern a subject-matter of a treaty (and in particular the treaty term to be interpreted), and are, or were, ‘germane’ to the treaty, i.e., they stand in some connection with the conclusion of the treaty (but need not necessarily have eventuated at the time of the conclusion of the treaty).”

96 Yves Sandoz, Christophe Swinarski and Bruno Zimmerman (eds), Commentary on Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, ICRC, Geneva, 1987 (ICRC Commentary on AP II), para. 4337.

97 ICRC Commentary on GC III, above note 19, para. 388.

98 AP II, Art. 1(1). See also ICRC Commentary on GC III, above note 19, para. 388: “In comparison [to common Article 3], Additional Protocol II is not universally ratified, and its scope of application is more limited, without, however, modifying common Article 3's existing conditions of application.”

99 See M. E. Villiger, above note 27, pp. 429–430.

100 Ibid., p. 430.

101 AP II, Art. 1(1); see also ICRC Customary Law Study, above note 32, p. xxxiv.

102 Cassese, Antonio, “The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary International Law”, UCLA Pacific Basin Law Journal, Vol. 3, No. 1–2, 1984, p. 109CrossRefGoogle Scholar.

103 AP II, Art. 1(1).

104 For an in-depth discussion on the scope of application of AP II, see Martha M. Bradley, “Revisiting the Scope of Application of Additional Protocol II: Exploring the Inherent Minimum Threshold Requirements”, African Yearbook on International Humanitarian Law, No. 1, 2019.

105 AP II, Arts 2(1), 4(1), 4(2)(a), 4(2)(e); ICRC Customary Law Study, above note 32, p. 299 (fundamental guarantees); A. Cassese, above note 102, p. 110.

106 AP II, Arts 2(1), 4.

107 AP II, Preamble; see also Hague Convention (II) with Respect to the Laws and Customs of War on Land, 29 July 1899, Preamble; Hague Convention (IV) Respecting the Laws and Customs of War on Land, 18 October 1907, Preamble.

108 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996 (Nuclear Weapons Advisory Opinion), para. 84; ICJ, Nicaragua, above note 33, para. 218; ICJ, Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment, 9 April 1949, ICJ Reports 1949, p. 22. For a discussion on the Martens Clause, see Cassese, Antonio, “The Martens Clause: Half a Loaf or Simply Pie in the Sky?”, European Journal of International Law, Vol. 11, No. 1, 2000CrossRefGoogle Scholar.

109 AP II, Preamble.

110 Nuclear Weapons Advisory Opinion, above note 108, para. 84.

111 A. Cassese, above note 108, p. 212.

112 Ibid.

113 ICRC Commentary on AP II, above note 96, para. 4434.

114 Ibid.

115 See AP II, Art. 2(1). According to the personal field of application, AP II applies without any adverse distinction founded on “race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria”.

116 AP II, Art. 2(1).

117 Ibid., Art. 2(1).

118 Ibid., Arts 2(2), 5(3).

119 Ibid., Arts 4(1)–4(2).

120 Ibid., Art. 4(1).

121 Ibid., Art. 4(2)(a).

122 Ibid., Art, 4(2)(e).

123 ICRC Commentary on AP II, above note 96, para. 4539.

124 ICRC Customary Law Study, above note 32, Rule 93, p. 324.

125 ICRC Commentary on AP II, above note 96, para. 4539.

126 ICRC Commentary on GC III, above note 19, para. 734.

127 Ibid., para. 736; See also UN Security Council, above note 6, p. 3, para. 4; ICRC Customary Law Study, above note 32, Rule 93, p. 327.

128 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 17 July 1998 (entered into force 1 July 2002), Art. 8(2)(e)(vi); see also ICC, Elements of Crimes, 2011, Art. 8(2)(e)(vi)-1; ICRC Customary Law Study, above note 32, Rule 93, p. 327.

129 See ICC, Ntaganda, above note 55, para. 933.

130 UN Human Rights, above note 7.

131 ICTR, Akayesu, above note 1, para. 693; ICTY, Prosecutor v. Miroslav Kvočka, Case No. IT-98-30/1-T, Judgment (Trial Chamber), 2 November 2001, para. 180.

132 ICTR, Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Judgment and Sentence, 18 December 2008, para. 976; see also ICRC Commentary on GC III, above note 19, para. 734.

133 VCLT, above note 22, Art. 31(3)(c).

134 Jann K. Kleffner, “The Applicability of the Law of Armed Conflict and Human Rights Law to Organised Armed Groups”, in Erika De Wet and Jann K. Kleffner (eds), Convergence and Conflicts of Human Rights and International Humanitarian Law in Military Operations, Pretoria University Law Press, Pretoria, 2014, p. 50.

135 Common Art. 3(1).

136 ICRC Customary Law Study, above note 32, Rule 139, p. 495.

137 J. K. Kleffner, above note 134, p. 50.

138 M. E. Villiger, above note 27, p. 433: “they are applicable in the relations between the parties, i.e., binding on all parties to the treaty at issue”. See also M. E. Villiger, above note 27, p. 432: “These rules need have no particular relationship with the treaty other than assisting in the interpretation of its terms. On the whole, they will provide a contemporary interpretation of the ordinary meaning of a term.”

139 UNGA Res. 2444, “Respect for Human Rights in Armed Conflict”, UN Doc. A/RES/2444, 19 December 1968; see also United Nations, Final Act of the International Conference on Human Rights, Tehran, UN Doc. A/CONF.32/41, 22 April–13 May 1698, p. 18.

140 Lubell, Noam and Prud'homme, Nancie, “Impact of Human Rights Law”, in Liivoja, Rain and McCormack, Tim (eds), Routledge Handbook of the Law of Armed Conflict, Routledge, London and New York, 2016, p. 2Google Scholar; see also Louise Doswald-Beck and Sylvian Vité, “International Humanitarian Law and Human Rights Law”, International Review of the Red Cross, Vol. 33, No. 293, 1993, p. 94.

141 L. Doswald-Beck and S. Vité, above note 140, p. 94.

142 International Covenant on Civil and Political Rights, I-14668 UNTS 999, 16 December 1966 (entered into force 23 March 1976) (ICCPR), Preamble, Arts 6, 7, 9, 10; Common Art. 3(1)(a), 3(1)(c); AP II, Arts 4, 5; M. Sassòli, above note 39, p. 425.

143 Protocol Additional (I) to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978), Art. 57; ICRC Customary Law Study, above note 32, Rule 1, p. 3; R. Kolb and R. Hyde, above note 83, pp. 46–47.

144 ICCPR, above note 142, Preamble.

145 Nuclear Weapons Advisory Opinion, above note 108, para. 25.

146 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004 (Wall Advisory Opinion), para. 106.

147 M. Sassòli, above note 39, p. 426. Also see, for example, Cassimatis, Anthony E., “International Humanitarian Law, International Human Rights Law, and Fragmentation of International Law”, International and Comparative Law Quarterly, Vol. 56, No. 3, 2007CrossRefGoogle Scholar.

148 ICRC Commentary on GC III, above note 19, para. 104: “In the event of a real conflict between the respective norms, resort must be had to a principle of conflict resolution such as lex specialis derogat legi generali, by which a more specific legal norm takes precedence over a more general one.” See also International Law Commission (ILC), Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/L.682, 13 April 2006, p. 35, para. 57.

149 ILC, above note 148, p. 57, para. 104.

150 M. Sassòli, above note 39, p. 438.

151 Ibid.

152 Droege, Cordula, “The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict”, Israel Law Review, Vol. 40, No. 2, 2007, p. 337CrossRefGoogle Scholar.

153 Ibid.; for a discussion on the principle of “systemic integration”, see ILC, above note 148, p. 206, para. 410.

154 HRC Res. 17/19, “Human Rights, Sexual Orientation and Gender Identity”, UN Doc. A/HRC/RES/17/19, 14 July 2011; see also UN Human Rights, above note 54; Yogyakarta Principles, above note 71.

155 John Dugard, International Law: A South African Perspective, 4th ed., Juta, Cape Town, 2011, pp. 30–34; for a general discussion on the hard/soft law dichotomy in international law, see Pronto, Arnold N., “Understanding the Hard/Soft Distinction in International Law”, Vanderbilt Journal of Transnational Law, Vol. 48, No. 941, 2015, p. 953Google Scholar

156 ICCPR, above note 142.

157 Ibid., Art. 2.

158 Human Rights Committee, CCPR General Comment No. 18, “Non-Discrimination”, 10 November 1989, p. 2, para. 7; See also Human Rights Committee, Toonen v. Australia, Communication No. 488/1992, 31 March 1994, para. 8.7, in which the Committee held that reference to “sex” in Articles 2 and 26 of the ICCPR also includes sexual orientation.

159 HRC Res. 17/19, above note 154.

160 UN Human Rights, above note 54, p. 52.

161 Committee against Torture, General Comment No. 2, “Implementation of Article 2 by States Parties”, UN Doc. CAT/C/GC/2, 24 January 2008, p. 6, para. 21; Committee on the Elimination of Discrimination Against Women, “General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women”, UN Doc. CEDAW/C/GC/28, 16 December 2010, p. 4, para. 18.

162 ICCPR, above note 142, Art. 10.

163 Human Rights Committee, General Comment No. 21, “Article 10 (Humane Treatment of Persons Deprived of Their Liberty)”, UN Doc. HRI/GEN/1/Rev.9 (Vol. 1), 10 April 1992, para. 3.

164 Ibid.; see also ICCPR, above note 142, Art. 7.

165 UN Human Rights, above note 54, p. 29.

166 ACHPR Res. 275(LV), “Protection against Violence and Other Human Rights Violations against Persons on the Basis of Their Real or Imputed Sexual Orientation or Gender Identity”, 28 April–12 May 2014.

167 Human Rights Committee, Toonen, above note 158.

168 ECtHR, Identoba and Others v. Georgia, Appl. No. 73235/12, Judgment, 12 May 2015, para. 96.

169 IACtHR, Azul Rojas Marín et al. v. Peru, Series C, No. 402, Preliminary Objections, Merits, Reparations and Costs, Judgment, 12 March 2020, para. 90.

170 Ibid., paras. 160–167.

171 Wall Advisory Opinion, above note 146.

172 UN Human Rights, above note 54, p. 3; see also UN Human Rights, “The United Nations Speaks Out: Tackling Discrimination on Grounds of Sexual Orientation and Gender Identity”, 2011, available at: https://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBTBrochure.aspx.

173 UN Security Council, above note 6; UN Human Rights, above note 3; UN Security Council, above note 7; UN Security Council, above note 8, p. 2, para. 6; UN Human Rights, above note 9.

174 UN Security Council, 2015, above note 7, para. 6; UN Security Council, 2021, above note 7, p. 7.

175 UN Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict, Annual Report of the Team of Experts on the Rule of Law/Sexual Violence in Conflict, 2017, available at: www.un.org/sexualviolenceinconflict/wp-content/uploads/report/team-of-experts-annual-report-2017/TOE-ANNUAL-REPORT-2017.pdf.

176 UN Human Rights, above note 7; UN Security Council, 2015, above note 7, paras 6, 20, 30, 61; UN General Assembly, above note 8; UN Human Rights, above note 9.

177 UN Human Rights, “The United Nations Speaks Out”, above note 172.

178 UN Human Rights, above note 54, p. 89.