Rape as a Crime in International Humanitarian Law: Where to from Here?

This article examines recent developments in the prosecution of crimes of sexual violence under international law. The author suggests that these developments are driven by the dual imperatives of a feminist 're-order' project — which seeks to reconstitute the international order free of sexual violence — and the imperative of recognition for victims of crimes of sexual violence. She argues, however, that by itself, a system of international criminal prosecution will be inadequate to meet the imperative of recognition for victims. She relies in this respect on research on the experiences of victims in national criminal justice systems, on the growing trend towards victims of crimes of sexual violence seeking redress in 'transnational' civil forums, and an analysis of the constraints of the international prosecution process. The article goes on to argue that the concept of international 'justice' for crimes of sexual violence needs to be expanded, beyond even those embodied in the ICTY or Rome Statutes, to include primary and not simply ancillary civil forums for the granting of 'restitution'. The author proposes a system of international victims' compensation, and makes preliminary suggestions for the features such a system should have. She further argues that, ultimately, this system will produce a parallel jurisprudence of 'recognition' which will eventually 'act back' on the discourses of international criminal prosecutions and the imperatives of an order/re-order project.