Women and international criminal law: steps forward or dancing
backwards
Dr Helen Durham
Strategic Adviser, International Law
Australian Red Cross
DRAFT
Over the last decade the question of whether sexual violence, and in particular rape, is
of itself an international crime has been clearly answered. Jurisprudence from ad hoc
international enforcement mechanisms as well as the inclusion of a range of sexual
violence crimes within the statutes of the ICC and numerous hybrid tribunals, leave
no doubts that there are internationally recognized limits to the way women’s bodies
can be treated during times of conflict and turbulence.
For many commentators these developments are seen a great step forward in the
international criminal law’s grand project of ending impunity. Whilst historically
there are numerous instances of prosecution of rape as a war crime (including as far
back as 1474), never before has the subject matter been examined with such detail and
precision. Many legal articles are now produced on the technicalities of how sexual
violence can be prosecuted as a crime not whether it deserves such attention. Matters
such as the international legal definition of rape and issues relating to the rules of
evidence and procedure as they relate to sexual violence have taken over from the
urgings for ‘something to be done’ in this space.
However to others, especially those from a critical legal theory background, claims
that there have been advances in the international criminal legal order for women due
to the articulation of sexual crimes and limited jurisprudence ring hollow. Haskell
writes that such developments must be ‘understood as incoherent responses by the
post-WW II legal order to the widespread rape of women in armed conflict that has
occurred and continues to occur with frequency and severity’. For Haskell and others,
international criminal law has not liberated women and any claims that advances are
‘unprecedented’ should be challenged with questions about the legitimacy of
international law’s pluralistic and humanitarian vision. From this perspective it
appears that if the crimes continue to be perpetrated the legitimacy of claiming
success at the international normative level is merely noise and action to distract
viewers from the fact that things are going backwards.
Such views don’t take into account developments across the broader international
legal landscape which are supported and encouraged by the process of prosecutions.
For example Security Council resolution 1820 of 2008 is the strongest to date dealing
with matters such as rape and locates sexual violence within the discourse of threats to
international peace and security rather than an unfortunate consequence of armed
conflict. At the other end of the continuum, international criminal prosecutions also
support those at a State level in attempts to criminalize sexual violence during conflict
domestically. For example in implementing the Rome Statute into Australian law, the
listing of rape and sexual violence crimes as war crimes has cut through any debates
about whether the grave breaches provision of previous war crimes legislation
included these specific crimes.
Furthermore, reflection is required on whether the legitimacy and even coherence of
the international criminal legal regime as it relates to women can be ‘fought over’ on
the exclusive (and rather narrow) territory of the classification of rape as a war crime.
The notion that sexual violence is the only horror experienced by women during times
of armed conflict ignores the importance of the creation of jurisprudence relating to a
range of areas, including matters which touch on the methods and means of warfare,
the use of specific weapons and the dignified treatment of detainees.