Great progress has been made over the last two decades in the investigation and prosecution of sexual and gender-based violence, in particular by the ad-hoc International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR). Yet the practice and jurisprudence of these tribunals makes clear that significant challenges remain, including inconsistency in how to understand – and therefore how to prove and adequately link to higher level perpetrators – crimes of sexual violence committed in the context of conflict, mass violence or repression. This chapter examines these challenges and explores whether human rights law, particularly the requirement that access to justice be free from gender-based discrimination, can be used to help address

the challenges. It suggests that application of the fundamental human rights principle of non-discrimination would encourage international tribunals to develop a better, more nuanced understanding of when, why and how sexual violence takes place during conflict or other instances of mass violence and,

therefore, assist them in better evaluating how the elements of sexual violence crimes should be interpreted, what theories of criminal responsibility can and should be used to prosecute such crimes, and/or whether such crimes should be selected for investigation and prosecution.