This book is an exercise in gender-sensitive judging. The editors have invited a group of academics, advocates, and legal practitioners from various regions of the world to re-envision a range of judgments delivered by judges at the International Criminal Court (ICC), applying a feminist judgments methodology.

The outcomes are extremely enlightening, and hopefully will influence the future course of progressive jurisprudence. As a former judge myself, I became aware of the value of feminist perspectives, and believe that the book will be of great interest to judges, prosecutors, defence and victims’ counsel, investigators, civil society organisations, and all of us who care about justice and accountability.

Although I myself disavowed the label ‘feminist’, judgments that I wrote, such as the Akayesu genocide judgment of the International Criminal Tribunal for Rwanda (ICTR), are often cited as examples of gender-sensitive decisions. Justice Claire L’Heureux Dube, formerly from the Canadian Supreme Court, also resisted the label of ‘feminist’ and instead embraced a commitment to protecting the rights of victims and human rights as the hallmark of her groundbreaking decisions on women’s rights. I agree with Justice Brenda Hale of the United Kingdom that it is possible to be both a judge and a feminist once one understands that feminism underscores equality of women and men and that the experiences of women are as relevant as the experiences of men.

I champion the participation of women on the bench, based on the principles of equality and non-discrimination, and value the sensitivity and understanding they bring of the vulnerabilities of female victims within traditional gender structures, both in times of conflict and as victims of economic and social deprivations in society.

Having been born and practised as a lawyer in apartheid South Africa, I daily lived the experience of injustice of exclusion on the grounds of race, sex, and class. Many on the all-white male bench openly espoused racial and gender prejudices. Many of the judges were loyal to the official policy of superiority of the white race and the apprehensions about their safety from the Black danger (swart gevaar). They expressed prejudices, such as that Black women were sexually promiscuous and did not experience the shame or suffering that white women victims of rape would.

Prejudicial presumptions and ignorance of the context and living conditions of women, particularly poor women, is a common and pernicious barrier to justice, particularly for women victims and survivors of violence. Such stereotyping causes judges to reach a view about cases based on preconceived beliefs, rather than relevant facts and actual evidence. This is particularly relevant in sexual violence cases.

Prejudice also extends to suspicions that women judges have gender biases. It is no accident that the decisions of women judges at the International Criminal Tribunal for the former Yugoslavia (ICTY) and ICTR were challenged on appeal for their alleged gender biases towards women: in the Akayesu decision, I was singled out for allegedly being influenced by the women protestors on the streets of Kigali,Footnote ¹ and at the ICTY, the impartiality of Judge Florence Mumba of Zambia was questioned on the basis that she should have recused herself because she had in the past represented her government before the UN Commission on the Status of Women (CSW).Footnote ² Both these grounds of lack of impartiality were dismissed by the appeals chamber.

Gender is an issue not only in the elements of the crimes that the ICC deals with but also in the very composition of the court itself. The ICC is the first international court that has striven for a gender balance on the bench. The significance of the composition of the court is the subject of some reflection in the first part of this volume.

In Akayesu, we on the bench noted that in international law there was no commonly held definition of rape in conflict situations. The definition we created was born out of the experiences of women witnesses who testified at the trial. Witness ‘JJ’ was asked by the prosecutor whether the perpetrators had penetrated her. She replied that that was not the only thing they did. It was a combination of the violence, the acts they did on her, what they said, and the humiliation she felt as a mother, by the public nudity, and being raped in the presence of children and by young men. I listened to her with particular care to register how she had experienced the act of rape. I was convinced that the traditional ‘body penetration’ definition was not appropriate in the context of mass rapes in war and conflict situations and did not do justice to the way women perceived the violation. I tried to capture the essence of these voices of rape survivors in the line: ‘Sexual violence was a step in the process of destruction of the Tutsi group – destruction of the spirit, of the will to live and of life itself.’Footnote ³

The ICC’s first conviction for acts of rape was delivered in the case concerning Jean-Pierre Bemba, on charges of rape, murder, and pillage committed in the Central African Republic by his troops. The judgment was reversed on appeal. Writers in this volume, Sarah Williams and Suzanne Varrall, have revisited the appeals decision by applying a feminist lens to liability under the principle of command responsibility, which is illuminating.

We have come a long way from defending women’s rights to serve as judges to asserting exclusion and discrimination as violations of the right to equality and non-discrimination. We also still have some way to go. This volume makes an important contribution to these earlier efforts to achieve gender justice by once again bringing attention to the lived experiences of women in situations of war and conflict.

Navi Pillay