This commentary was originally presented as the Frederick K. Cox International Law Center Lecture in Global Legal Reform on September 2, 2009 at the Case Western Reserve University School of Law. U.N. High Commissioner Navanethem Pillay was the recipient of the Cox Center's annual Humanitarian Award for Advancing Global Justice, which was presented after the lecture. The Inamori International Center for Ethics and Excellence co-sponsored the event. A webcast of the lecture may be accessed at: http://law.case.edu/centers/cox/webcast.asp?dt=20090902&type=flv.
I am deeply honored to receive the Case Western Reserve University Frederick K. Cox International Law Center Humanitarian Award for Advancing
Global Justice. Today, I speak as the High Commissioner for Human Rights, and also as a committed and long-time advocate for women's rights and gender equality, and as such someone who believes that today's discussion is essential. Moreover, as a former president of the International Criminal Tribunal for Rwanda and a judge at the International Criminal Court, I can only warmly welcome your debate.
At the outset, let me say that I am heartened by the progress made so far regarding the prosecution of sexual violence. The jurisprudence and methodology developed by international justice mechanisms, as well as national tribunals [and] regional courts, have made great strides. Yet we are still wanting in our capacity to fully describe, understand, and address the real experience of sexual violence from the victim's perspective.
[The Office of the High Commissioner for Human Rights] (OHCHR) has closely studied whether the programs, policies, and the normative architecture which form the basis of the work of the international community in a post-conflict setting provide adequate access to justice for women seeking it. From this perspective, my Office, jointly with the nongovernmental organization Medica Mondiale, organized a conference entitled "Seeking Justice" last year. Our purpose was to gather a variety of views and experiences on the topic of sexual violence and justice. This event was attended by women from twenty-six countries, the majority of which had recently been in conflict.
Many among the participants had themselves experienced such violence and had sought to end impunity through formal justice mechanisms. Their purpose had been to ensure that sexual violence be prosecuted and perpetrators held accountable. Three fundamental questions emerged from that conference. They are:
* Whether the law has actually succeeded in describing women's experience of violence;
* Whether the ways in which sexual violence is investigated assist in the understanding of that experience from a woman's perspective; and
* Whether, in fact, our current practices actively discriminate in the delivery of justice.
Against this background, I will outline for your consideration some thoughts on the normative framework that anchors the prosecution of sexual violence. I will then briefly examine how the legal architecture at our disposal can contribute to more effective investigations. Finally, I will discuss how we can draw from methodologies of other legal processes to bolster the ability of international criminal justice mechanisms to prosecute sexual violence.
Let me reiterate that from today's vantage point, considerable progress has been made from the time when violence and related offences against women were merely seen as crimes of honour. Indeed, there has been a quantum leap forward in the prosecution of sexual violence before international tribunals. The jurisprudence of these courts represented a watershed for women whose war time suffering had long been considered as an inevitable by-product of conflict, or as "collateral damage" that could be more easily tolerated and, consequently, disregarded.
Through the work of international courts we have been able to establish once and for all that--where threshold criteria are met--rape during international or internal armed conflict is a war crime, a crime against humanity, and may constitute an element of genocide. It is a crime, often planned and systematically perpetrated, that must be explicitly prosecuted as such.
I will leave to others to revisit the evolution of rape as a crime under international law. It is, however, important to highlight here the inclusion of an explicit reference to rape in the statutes of the ad hoc international criminal tribunals for the former Yugoslavia and for Rwanda, the post-conflict special courts, and the ICC. Subsequent judicial interpretations of the ad hoc tribunals, as well as explanatory paragraphs from the ICC, proscribe sexual violence.
The normative framework is, therefore, in place. However, if we take even a cursory look at the extent of the prosecution of sexual violence perpetrated during conflict, it is clear that we are only addressing the tip of the iceberg in terms...