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Introduction
In times of war, as we witness today, sexual violence involving rape, sexual slavery, forced prostitution, forced pregnancy, and enforced sterilization is often used as a deliberate tactic aimed at destroying the dignity and composure of the enemy. The data available reflect alarming levels of rape during conflict and its aftermath. In recent cases, about 25 girls and women were systematically raped during the occupation in Bucha, amidst the Russia-Ukraine conflict. A peremptory norm of general international law (jus cogens) is a norm accepted and recognized by the international community of states as a norm from which no derogation is permitted, and which can be modified only by a subsequent norm of general international law (jus cogens) having the same character. First introduced in Article 53 of the Vienna Convention on the Law of Treaties (1969), jus cogens reflects the fundamental values of the international community. The instances of brutality referred to above give rise to hope and the question: Is the prohibition of sexual violence a recognized jus cogens norm?
Much like other facets of international law, peremptory norms are not accompanied by an exhaustive list. This leads to a grey area where the international legal community is left to play a guessing game. This paper analyses this game to see where sexual violence falls. It is argued that despite several possible opportunities/interpretations that would allow sexual violence during armed conflict to be brought into the framework of peremptory norms, specifically under the basic rules of international humanitarian law, the international legal system refrains from doing so because of state sovereignty, rooted in Western dominance and the patriarchy. This reveals an unfortunate aspect of international law that can only be cured by time and progress. Since international humanitarian law is used as the lens here, this paper solely focuses on situations of armed conflict, particularly of an international nature.
I. How has sexual violence been addressed through existing peremptory norms?
This typically occurs through ‘legal piggybacking,’ i.e., prohibitions of sexual violence do not stand explicitly but enter the legal system through non-explicit sexual crime to reach jus cogens status.
Courts have found that sexual violence forms a part of the violation of the prohibition of torture, which is a peremptory norm. In Akayesu, the International Criminal Tribunal for Rwanda (ICTR) held that rape constituted torture when it is inflicted by a person in an official capacity. The European Court of Human Rights, in Aydin, similarly found that acts of rape constituted torture in violation of the European Convention on Human Rights. A similar finding was made by the Inter-American Commission in the case of Mejia.
Prohibition of genocide is another jus cogens norm that rape was held to constitute. When the Rwandan tribunal held Akayesu criminally responsible for genocide, sexual violence was held to constitute genocidal conduct. The tribunal reasoned that rape in that case was inflicted with the intention of destroying an ethnic minority—the Tutsi. Genocide is the intent to destroy a group, and rape constitutes genocide when used to prevent births, either through forced impregnation to alter group identity or by inflicting trauma that deters reproduction. In Kunarac, the International Criminal Tribunal for Yugoslavia (ICTY) used evidence of sexual violence to prove ownership of Bosnian women. Ownership is an element of enslavement, which is prohibited under an explicit peremptory norm, and followingly, the two accused were convicted.
Several international legal instruments also implicitly prohibit forms of sexual violence through prohibitions on torture, other inhuman treatment, and outrages against personal dignity. However, sexual violence being understood as implicitly prohibited by other jus cogens norms takes away from the severity and brutality of the act itself. Courts seek additional justifications to classify such crimes as severe. Sexual violence is often reduced to a mere constitutive element of a broader, hierarchically superior crime, thereby diminishing its independent gravity and invalidating the experiences of countless victims
II. Building the Case—Prohibition of Sexual Violence as A Jus Cogens Norm Under International Humanitarian Law
The Draft Conclusions on Identification and Legal Consequences of Peremptory Norms of General International Law, adopted by the International Law Commission (ILC) in 2022, provide a framework for identifying peremptory norms of general international law and determining their legal consequences. The prohibition of sexual violence is not one of the peremptory norms listed in the annex of the Draft Conclusions. However, it must be conceded that this is only a non-exhaustive, illustrative list. The absence of the terms ‘sex’ and ‘gender’ in the draft conclusions does not necessarily imply that the prohibition is not a peremptory norm. Hence, this section of the paper normatively investigates whether the prohibition of sexual violence during armed conflict could be interpreted as a jus cogens principle under the basic rules of humanitarian law, the fourth norm in the annex.
The first and easiest argument for sexual violence as a violation of humanitarian law is that it violates the cornerstone principle of the Principle of Distinction—the necessity to abide by the distinction between civilian populations and combatants—and consequently, only allowing direct attacks against combatants.
A second argument is that prohibition against sexual violence has sufficient sources, which the international legal system could rely on to transform it into an explicit jus cogens norm. The prohibition has found a place in the most common sources of peremptory norms—customary law, treaty provisions, and general principles of law. Sexual violence, classified as a crime against humanity and a war crime, is in violation of the Marten’s Clause, which bridges the positive norms of international law on armed conflicts with the principles of natural law, and more broadly, the customary rules of humanitarian law. Statutes of ad hoc tribunals also allow rape to be treated as a war crime based on the violations of Common Article 3 of the Geneva Conventions and Additional Protocol II. Additionally, the Geneva Convention expressly protect women against sexual violence, for instance, through Article 27.
A third normative argument relies on the evidence of actions taken by international organizations, which can amount to supplementary sources of peremptory norms. Resolution 1820 recognizes the impact and purpose of rape and demands the complete cessation by all parties to armed conflict of all acts of sexual violence against civilians with immediate effect. It even puts obligations on party states to take appropriate measures to protect civilians and to comply with their obligations for prosecuting persons responsible for such acts.
The interconnected nature of human dignity and peremptory norms is the fourth argument for the plausibility of the prohibition of sexual violence to classify as a jus cogens norm. Peremptory norms, particularly rules of humanitarian law, are often interpreted to derive from the general principle of human dignity. Some scholars use the Kantian philosophy of morality to argue that moral considerations remain the premise of jus cogens. In this context, principles of jus cogens play a role similar to that of granting rights. Sexual violence is a direct attack on human dignity and morality. Therefore, this further underscores the urgency of recognizing the prohibition of sexual violence as a peremptory norm.
III. The Barriers to Recognition of Prohibition of Sexual Violence as a Peremptory Norm
There are two criteria for the identification of a peremptory norm as defined under Article 53 of (VCLT) – (1) it is a norm of general international law, and (2) it is accepted and recognized by the international community of states as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. The first criteria can be assumed from the sources discussed previously. However, the second is a much harder argument to make. ILC’s commentary states that evidence of peremptory norms’ acceptance needs to specifically prove non-derogability. Unfortunately, in this case, sources do not necessitate a non-derogability requirement.
The most serious violations of International Humanitarian Law (IHL), called “grave breaches” are specifically listed in the Geneva Conventions and Additional Protocol I. They include acts such as willful killing, torture, and inhumane treatment. The consequences of grave breaches are severe, as IHL mandates all states to criminalize and prosecute them under universal jurisdiction, meaning any state can prosecute offenders, regardless of nationality or where the crime occurred. States are required to enact laws punishing grave breaches, actively search for alleged perpetrators, and either prosecute them domestically or extradite them for trial in another jurisdiction. However, unfortunately, Common Article 3 is not a “grave breach” within the meaning of the Geneva Conventions. Similarly, Article 27 of the Fourth Geneva Convention and Article 76 of the First Additional Protocol are non-grave breach provisions. Thus, despite being recognized as custom and general norms of humanitarian law, these norms do not trigger the legal obligations of states to pursue and to prosecute violations. Other instruments like the Second Additional Protocol and the Rome Statute, which explicitly prohibit all forms of sexual violence, are not widely ratified. While resolutions of the General Assembly and Security Council, including Resolution 1820, identify the importance of prohibition, the legal weight of these resolutions as a binding source of law remains questionable.
I propose two explanations for why the prohibition of sexual violence during armed conflict has not yet been raised to the formalistic jus cogens status.
a. The jus cogens framework is built on state actors, as they alone can give valid acceptance and recognition to these norms. The idea of a community of states, which peremptory norms rely on, is a compromise on the primordial international law principle that states are sovereign. Historically, much of the support for jus cogens came from third world countries as opposed to the western nations, who were concerned with pacta sunt servanda (“Agreements must be kept”). Following this, the desire of the ‘stronger’ nations to hold on to some semblance of state sovereignty could be one explanation.
b. Peremptory norms are hierarchically superior norms that reflect and protect the fundamental values of the international community. However, they lend the normative superiority to male-orientated, patriarchal fundamental values. The primacy traditionally given to civil and political rights by Western international law is directed towards protection for men within their public life. Although race discrimination consistently appears in jus cogens inventories, discrimination based on sex does not. The silences of the list indicate that women’s experiences have not directly contributed to the framework of peremptory norms. The argument of Charlesworth and Chinkin is based on the perhaps outdated empirical belief that sexual violence is inflicted on more women than men. Men and LGBTQIA+ persons are also victims of sexual violence, especially in the context of migration and detention camps. However, sexual violence, irrespective of the victim, is an evil born out of patriarchy.
Conclusion
This paper has attempted to address the position of the prohibition of sexual violence during armed conflict in the framework of jus cogens norms. Part I observed that whenever sexual violence has been prosecuted internationally, it has been treated as a constitutive part of some other jus cogens norm. This approach significantly reduces the magnitude of the crime and sidelines it. Subsequently, in Part II, four normative arguments were made as to how the prohibition of sexual violence could be given jus cogens status under basic rules of international humanitarian law. This approach is different from the current standing discussed in Part I because considering sexual violence as a violation of a basic principle of humanitarian law is giving it the attention it deserves without reducing it to a constituent element of some bigger crime. However, Part III observes that this is purely theoretical and has not manifested. Thus, the paper draws attention to an uncomfortable reality where the international law framework of jus cogens has sidelined, if not completely ignored, the experiences and rights of the victims of sexual violence during armed conflict.
Abhirami Subhash is a second-year BA LLB student from the National Law School of India University, Bangalore.
Picture Credit: Drawing of women detainees during the Second World War, Melita Lovrencic, 1942/ ICRC Blog.
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