INTRODUCTION

There are numerous reasons for impunity for sexual and gender-based crimes. Obstacles at the domestic level include discriminatory corroboration requirements and constructions of ‘consent’, and inadequate and incomplete legal prohibitions on these crimes, amongst other issues. In the international courts and tribunals, some of the impediments to successful prosecutions for these crimes have been due to assumptions about who is a victim of sexual violence, lack of prioritisation in investigation plans and in the past the inclusion of sexual violence charges in plea bargain agreements. Beyond these considerations, there is an underlying element that contributes to the unique and epidemic levels of impunity for sexual violence, and that is the partial integration, rather than the full integration, of women and concepts of gender within the structure of justice.

The law, in its legal concepts and practice, typically lags behind the human experience, and nowhere is this more poignant than in relation to sexual violence and gender-based crimes. There has been landmark jurisprudence which has recognised the gender dimensions of sexual violence, as well as the gender dimensions of other forms of criminality. Such jurisprudential highlights include: the recognition of rape as an underlying act of genocide; sexual violence as a form of torture; the recognition of forced marriage as a distinct crime from the crime of sexual slavery; and non-invasive acts such as forced nudity as a form of sexual violence. Each of these judgments has shed light on a specific aspect of sexual and gender-based violence as international crimes, and collectively, this jurisprudence provides a pathway of legal reasoning available for others to draw and expand upon.

Yet, despite the overwhelming numbers, millions, of mostly women and girls throughout history, and continuing today, who have been victimised through acts of sexual and gender-based crimes, only 16% of those accused of war crimes, crimes against humanity and genocide have been convicted of sexual violence through international legal mechanisms.

Notwithstanding the important benchmarks, overall there has been limited and inconsistent jurisprudential progress in interpreting the law and engendering the legal concepts through a lens for crimes not obviously, but oft en inherently, gendered.