By Elizabeth Odio Benito, August 2002, on WHRnet – In the 1990s, the government of Costa Rica nominated the distinguished jurist and former vice president of the Republic of Costa Rica, Elizabeth Odio Benito, to the Ad Hoc Tribunal for former Yugoslavia. She was elected by the UN General Assembly in 1993 as one of 11 international judges who had the task of ensuring peace through justice.
As a judge, she established jurisprudence on various aspects of international humanitarian law but most notably with regard to the recognition of sexual violence against women as a war crime. Before being appointed to the Court, she served as Dean Emeritus of the Law School of the University of Costa Rica and worked untiringly for human rights in Latin America and worldwide.
An international group of women is promoting her nomination to the International Criminal Court (ICC). In this connection, she commented to us:
“If I am nominated by my country and subsequently elected as a judge on the ICC, I would devote particular attention to the progressive interpretation of the norms in the Statute, above all, to those concerning sexual crimes against women. When I had the opportunity to serve on the International Criminal Tribunal for the former Yugoslavia (ICTY), Judge McDonald and I, together with the Office of the Prosecutor, undertook the task of making visible the sexual and gender violence that women suffer both in ‘peacetime’ and in international and internal armed conflicts — a task left undone since World War II. We also made visible that rape and other sexual abuses were used as weapons of war, as means of terror, as occurred in the Former Yugoslavia.
Our task was supported by the Ad Hoc Tribunal on Rwanda, and the jurisprudence we produced provided the moral and legal bases for the drafting of the Rome Statute. Because of the work of women groups from all over the world and many governments, the new understanding of war crimes and crimes against humanity from a gender perspective is now reflected in the Statute.”
Regarding the legal and political challenges before the ICC, Odio Benito said:
“The establishment of a permanent international criminal court is a longstanding debt that the international community owes to the people of the world. Following World War II, the Universal Declaration of Human Rights and the Declaration against Genocide were adopted and the international community agreed that the work of the Nuremberg and Tokyo Tribunals should be continued by a permanent international court. Due to political factors, its creation was delayed for 50 years.
In the absence of an international criminal court, major criminals like Pol Pot and Pinochet enjoyed impunity. National courts lack the capacity to try those responsible for such atrocities. The ICC now fills this enormous vacuum that has existed in human rights and humanitarian law for 50 years.
The ad hoc tribunals demonstrated that it is possible to be independent, objective, and consistent with regard to due process and the principle of legality. They can function and be efficient if they are given adequate resources and have the support of States to try those responsible for atrocities.
A political perspective on the ICC is important to end impunity and provide legal, moral, and economic restitution to victims; peace can only be achieved through real justice.
The ICC is now facing political challenges that threaten the system of justice, such as the opposition of the United States to the Court. The United States is now entering into bilateral agreements that guarantee the impunity of their military forces with such countries as Colombia that feel obligated to comply due to economic and military pressure. We will see whether this unilateral confrontation with the rest of the world will undermine the functioning of the Court.
The legal challenge includes the support of States to implement the treaty through reform of their legislation to make it compatible with the standards in the Statute. These tasks will be easy to accomplish as long as there is the political will to do so.”