The challenges of prosecuting gender-based crimes in international courts

6 December 2018
Bringing justice to victims of wartime sexual violence
The University’s newest postdoctoral fellow Dr Rosemary Grey brings her expertise in international criminal law and gender to the University of Sydney Law School.
International Criminal Court

The International Criminal Court in The Hague, Netherlands.


Dr Rosemary Grey has spent the last 10 years studying trials at the International Criminal Court and working to support Hague-based organisations, including the Women’s Initiatives for Gender Justice and the Amnesty International’s international justice team, focusing on the law and practice of prosecuting sexual crimes; a challenging task, especially in times of war when records are scarce and victims number in the hundreds or thousands.

Rosemary Grey

Dr Rosemary Grey

It is this unique focus that she brings to the Sydney Law School, where, as a multidisciplinary postdoctoral fellow, she will draw on the expertise of international lawyers at Sydney Law School and regional specialists in the Sydney Southeast Asia Centre to conduct the first comprehensive gender assessment of the United Nations-backed ‘Khmer Rouge Tribunal’, whose mandate is to prosecute genocide, war crimes, crimes against humanity, and other offences committed in Cambodia from 1975 to 1979.

What does a gender assessment of the Khmer Rouge Tribunal entail and why is it important?

Gender-based crimes, especially rape, sexual violence and forced marriage, are extremely common in times of war. The consequences for victims and their communities are devastating. Despite that, these crimes have historically been largely invisible in international war crimes trials.

As a result, perpetrators have not been held to account, victims have not received justice, and gender-based violence has been largely invisible in these trials. For the last 10 years, my work has focused on making gender-based crimes more visible in international war crime trials in order to increase justice to victims, especially women and girls.

My project at Sydney Law School will focus on the Khmer Rouge Tribunal, which is operating currently in Cambodia. I’ll be asking questions including: how effective has this tribunal been in prosecuting gender-based crimes during the Khmer Rouge period? Have women and men had an equal opportunity to participate in the trials? Have they had an equal opportunity to visit the tribunal and learn about it? Have the tribunal’s reparation orders (ie, the projects it funds for victims) served women and men effectively?

How difficult is it to prosecute gender-based crimes?

Prosecuting international crimes is a very difficult task. The crimes are legally complicated; the cases often include hundreds or thousands of victims, and investigations often take place in conflict or post-conflict states, which has added security risks. Additional challenges arise in the Khmer Rouge Tribunal, where the alleged crimes occurred more than 40 years ago, meaning that documents have been lost, the memories of witnesses have faded, and many witnesses/victims have passed away.

These challenges are compounded for gender-based crimes, especially sexual violence crimes, for reasons including the shame and stigma associated with the crime – it may take longer for investigators to build trust with the victims; outdated assumptions that sexual violence is a ‘lesser’ war crime mean that it is not always investigated and charged as a priority; and even where sexual violence is charged, there is a tendency for judges in international criminal tribunals to see it as outside the sphere of influence of the accused, who is typically a high‑level military or political leader, rather than a foot soldier who physically commits the crime.

What drew you to this particular period and case?

In the period I spent studying trials at the International Criminal Court, and working in partnership with NGOs that engage with that court, its cases were all from Africa. I’m now interested to move my focus closer to home, to the Asia‑Pacific region.

I’m interested to see how the idea of an “international” or “universal” justice system actually works in different cultural contexts in this region.

When I pitched my project to the Sydney Southeast Asia Centre last year, my focus was solely on the Khmer Rouge Tribunal because of its location in Cambodia. In the months since, the ICC has become active in the Asia-Pacific region too. It has started analysing the expulsion of Rohingya people from Myanmar into Bangladesh, as well as the “war on drugs” in the Philippines. So, my project now looks at both courts – the Khmer Rouge Tribunal and ICC – focusing on their work in the region.

What does your research involve?

My research combines legal research into ongoing trials, which I conduct from the Sydney Law School, combined with interviews with court staff including prosecutors, defence counsel and victims’ counsel.

I typically spend one to two months in the court’s location per year to conduct the interviews. This year, I spent those months in the Hague, finishing interviews and court observations at the ICC for my forthcoming book, Prosecuting Sexual and Gender-Based Crimes at the International Criminal Court. In 2019 and 2020, I’ll do the same in Phnom Penh for the Khmer Rouge Tribunal. But more immediately, I’ll be heading over to Phnom Penh to attend the judgement in the tribunal’s second case, which includes charges of genocide and forced marriage, among other crimes.

What do you hope to achieve with your research?

To be part of a long-overdue reform which began in the 1990s, and still has a long way to go. The aim of this reform is to make international criminal justice more responsive to the needs of all people – men, women, boys, girls, and people of all gender orientations and sexual identities.

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