People around the world have experienced the atrocities of sexual and gender based crimes in their communities. However,the community as a whole, historically, had not, until 1990s, paid adequate attention to the sexual and gender related crimes both in normal and conflict situations. And as a result, the perpetrators of those crimes had enjoyed a lot of the privileges of impunity; because sexual violence including rape and gender based crimes had failed to receive that much attention in international criminal law. It seems that it was only in 1990s when the world community began to feel that criminalities of those crimes should be punished and the impunity-gap thereof should be closed. The relative questions are– have the perpetrators of those crimes still been enjoying the privileges of impunity-gap? How could the world community proceed further with in successfully tackling this heinous crime? Answering the questions above this study would examine the notorious past of those crimes and further it would advise on the legal developments that the world community could avail to combat the impunity.
World community had never, until 1990s, been consistent and firmed in its position with respect to the punishment of sexual and gender based crimes in conflict situations. However, it is true that community did not forget to prohibit rape by soldiers by the law of war and thus perpetrators were subjected to capital punishment under the military codes, such as those of (“Richard II (1385) and Henry V (1419)”) . We have learnt from the ‘Lieber Code(1863)’ and ‘Hague Convention1907’ that global community has, sometimes, moved from a stronger stand to a softer concept of ‘family honour and rights’ with respect to rape in conflict situations. Subsequent instruments relating those crimes have been criticized by the students of law and accused of imprecise and veiled languages and vagueness. Global community, however, welcomed, in 1990s, the international law for bringing a remarkable progress redressing the atrocities of those crimes; because the community as a whole wanted to get rid of the scourge of those crimes and bring an end to the impunity. I would go with the ad hoc tribunals mandated to punish those crimes and their establishing statutes first before I go for the answer relating to the questions above.
2. Ad Hoc Tribunals
UN Security Council was not quiet on the widespread rapes of women in former Yugoslavia and the Council then on 22 February 1993, by a resolution , took a decision to establish an international criminal tribunal for former Yugoslavia to address those crimes. And then by a resolution a statute  was formed in that regard criminalizing particular acts as war crimes, genocide and crimes against humanity etc. (Art 2-5) and the crime of rape was fallen identically[art 5(g)] in the latter category. In 2001 , the ICTY became the first international court which was pleased to find an accused guilty of rape as a crime against humanity and, furthermore, the court expanded the definition of slavery as a crime against humanity to include sexual slavery; previously, forced labour was the only type of slavery to be viewed as a crime against humanity.
UN Security Council in 1994, by a resolution , took another decision to establish an international criminal tribunal for Rwanda and formed a statute criminalizing certain acts as genocide, war crimes and crimes against humanity and crime of rape was identically[art 4(e) and 3(g)] fallen into the latter two. In 1998 ,”the ICTR became the first international court to find an accused person guilty of rape as a crime of genocide. The judgment against a former mayor, Jean-Paul Akayesu, held that rape and sexual assault constituted acts of genocide in so far as they were committed with the intent to destroy, in whole or in part, the Tutsi ethnic group”.
In 14 August 2000, UN Security Council, by a resolution  established a special criminal court for Sierra Leon and its statute (art 2-5) criminalized rape as crime against humanity [art 2(g)] and war crime [art. 3(e)].
The review , in the light of the Security Council Resolution 1820, of the sexual violence elements of the judgments of the international tribunal for the Yugoslavia, the international criminal tribunal for Rwanda, and the special court for Sierra Leone observed that” at the ICTY, a noticeable feature of the relevant judgments is that sexual violence against civilians formed part of and flowed from the so-called ‘ethnic cleansing’ of areas by parties to the conflict. Sexual violence centring on detention centres, including in situations amounting to sexual slavery of women and girls, comprise a considerable part of the findings. However, as the judgments clearly show, sexual violence against civilians was also committed away from such detention centres. At the ICTR, a noticeable feature is that sexual violence against civilians, which mostly took the form of rape, formed part of the genocide committed against the Tutsi. At the SCSL a noticeable feature is the abduction of civilian women and girls by and their forced marriage to combatants, in the course of which these so-called ‘bush wives’ were also raped and subjected to other forms of sexual violence.”
3. Permanent Criminal Court: ICC
The Rome Statute of the ICC  came in force in 2002 conceiving the jurisprudence of earlier ad hoc tribunals. It is the first instrument in international law that included an expansive list of sexual and gender-based crimes that were ever before as crimes against humanity (Art.7) and war crimes (Art 8) both in international and non-international armed conflicts. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence have been criminalized as above. Furthermore, hiring the jurisprudence of Akayesu judgment (ICTR), the Rome Statute incorporated the spirit that sexual violence committed with an intent to destroy, in whole or in part, a national, ethnic, racial or religious group, may constitute acts of genocide (art.6). The court is committed to punish the sexual and gender based crimes and if the states do not come forward to help the court in its activities it is less likely that the court will reach the target it is created for. Every -day news on sexual and gender based violence in the states engaged in armed conflicts combined with incidents of sanctions  imposed on those by the UN Security Council and their expert-reports stand to argue that there is still an impunity-gap. However, the status of sexual and gender based crimes in international law, and how the world community could use the jurisprudence of international courts to combat the impunity in that regard would be examined next.
4. Sexual and Gender Based Crimes: Jus Cogens!
For a rule to be jus cogens it must satisfy the sources of international law (treaty, custom and general principles of law) articulated in article 38 of the Statute of the International Court of Justice (ICJ) and further it satisfies certain objective criteria suggested by some members (during the drafting of Vienna Convention) of the International Law Commission (ILC). I would quote an important and relevant portion of an article to strengthen my argument giving due credit and respect to that author “…. in order to become jus cogens, there must be a general norm of international law that is recognized and accepted by the international community of states as a whole. As articulated in Article 38 of the Statute of the International Court of Justice (ICJ), an international rule must satisfy the three basic sources of international law: treaty, custom, and general principles of law. These basic sources of international law determine “how new rules are made and existing rules are repealed or abrogated.”International treaties are binding upon all parties to them and must be “expressly recognized by the consenting states.” In addition, if a treaty is of a fundamentally norm-creating character and subsequently becomes a rule of custom through state practice, it may generate rights and duties for third parties who are not signatories to the convention. Customary international law is binding upon all states, and according to the ICJ Statute, requires “evidence of a general practice accepted as law.” As defined in the North Sea Continental Shelf Case, customary law has two essential components: uniform and consistent state practice and evidence of opinio juris. State practice requires that the state consent to the rule in question by engaging in “constant and uniform” behavior, while opinio juris requires that states have acted out of a sense of legal obligation. Finally, general principles of international law are fundamental rules “recognized by civilized nations,” common to the major legal systems of domestic law, and serve as a secondary source of international law in situations where conventional or customary international law is not applicable. In addition to satisfying the basic sources of international law, during the drafting of the Vienna Convention some members of the International Law Commission (ILC) suggested that a peremptory norm could be identified by the following objective indicia:
- whether the norm is incorporated into norm-creating multilateral agreements and is prohibited from derogation in those instruments;
- whether a large number of nations have perceived the norm to be essential to the international public order, whereby the norm is reflected in general custom and is perceived and acted upon as an obligatory rule of higher international standing; and
- whether the norm has been recognized and applied by international tribunals, such that when violations occur, the norm is treated in practice as a jus cogens rule with appropriate consequences ensuing. Norms satisfying, first, the basic sources of international law as articulated by the ICJ and, second, the objective criteria listed above can therefore be considered rules of jus cogens” 
In the same article the author went on …”the jus cogens nature of a norm barring rape under international humanitarian law is evident in a number of sources: The landmark jurisprudence of the Yugoslav and Rwanda Tribunals recognizing [and prosecuting] sexual violence as war crimes, crimes against humanity, and instruments of genocide[and torture], the inclusion of various forms of sexual violence in the ICC Statute (including crimes that had never before been formally articulated in an international instrument), the increasing attention given to gender violence in international treaties, U.N. documents, and statements by the Secretary-General[and high-level jurists], the new efforts to redress sexual violence in internationalized/hybrid courts and by truth and reconciliation commissions, the recent recognition of gender crimes by regional human rights bodies, and the increasingly successful claims brought in domestic courts to adjudicate gender crimes.” 
In line with the above analysis one could argue that the sexual and gender based crimes have already satisfied the criteria mentioned above in order to attain the norm of jus cogens. Finally, in concluding paragraph, how the global community could combat the impunity in relation to sexual and gender based crimes is to be outlined.
We are aware that international UN mechanisms have been working hard to combat those that pose a threat to international peace and security and surely sexual and gender based crimes are those that attract their mandates. If the analysis made in the preceding paragraphs be right then it necessarily follows that the attainment of sexual and gender based crimes in conflicts as a peremptory norm in international law do make the mechanisms or peace-brokers legally instrumental to pull a concrete finding in a given situation; because it is immaterial then whether or not a particular State has ratified a particular legal instrument. The concepts of jus cogens and erga omnes  are closely related and it is difficult to draw a difference between them. The former creates the latter erga omnes obligations for the states to comply and if this analysis be right it necessary follows that an erga omnes obligation is the consequence of a rule being characterized as jus cogens. I would like to mention here some cases where ICJ and other international courts decided erga omnes obligations. For example, in Barcelona Traction case  the ICJ enumerated four erga omnes obligations; the outlawing of acts of aggression, the outlawing of genocide, protection from slavery, and protection from racial discrimination. Subsequently obligations to respect the principles of self-determination and obligations prohibiting the use of torture were recognized as erga omnes obligations by the courts in East Timor  and Furundzija case respectively. Erga omnes obligations of the States derived from the jus cogens status of sexual and gender based crimes in conflicts and the sincerity of States to those obligations could combat the impunity.
1. THE PROHIBITION OF RAPE IN INTERNATIONAL HUMANITARIAN LAW AS A NORM OF JUS COGENS: CLARIFYING THE DOCTRINE, DAVID S. MITCHELL,(available at https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1114&context=djcil) > Theodor Meron, Comment, Rape As A Crime Under International Humanitarian Law, 87 AM. J.INT'L LAW 424, 424 (1993), >Theodor Meron, Shakespeare's Henry the Fifth and the Law of War, 86 AM. J. INT'L LAW 1, 29–30 (1992).
2. Article 44 of the Lieber Code provides in part: All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking . . . all rape,wounding, maiming, or killing such inhabitants, are prohibited the under penalty of death . . . .(available at https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=B1CE1E21A4237EE6C12563CD00514C6C, (Francis Lieber, "Instructions for the Government of Armies of theUnited States in the Field, by Order of the Secretary of War, April 24,1863," reprinted in FRANCIS LIEBER, LIEBER'S CODE AND THE LAW OF WAR 45(1983). The Lieber Code is also known as General Orders No. 100.)
3. Article46 states, “family honour and rights, the lives of persons, and privateproperty . . . must be respected.(https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=E719FBF0283E98E3C12563CD005168BD).
4. S/RES/808(1993), 22 February, 1993 Security council took decision to establish an international criminal tribunal for former Yugoslavia, (http://www.icty.org/x/file/Legal%20Library/Statute/statute_808_1993_en.pdf).
5. Statuteof the international criminal tribunal for the former Yugoslavia (adopted 25May 1993 by Resolution 827,( http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf)
7. RESOLUTION955 (1994) Adopted by the Security Council at its 3453rd meeting, on 8 November1994,(http://www.irmct.org/specials/ictr-remembers/docs/res955-1994_en.pdf?q=ictr-remembers/docs/res955-1994_en.pdf)
9. Security Council resolution 1315 (2000) of 14 August 2000,
14. THEPROHIBITION OF RAPE IN INTERNATIONAL HUMANITARIAN LAW AS A NORM OF JUS COGENS:CLARIFYING THE DOCTRINE, DAVID S. MITCHELL, (https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1114&context=djcil)
17. ICJ CASE CONCERNING THE BARCELONA TRACTION, LIGHT ANDPOWER COMPANY, LIMITED (NEW APPLICATION : 1962) (BELGIUM v. SPAIN) SECOND PHASEJUDGMENT OF 5 FEBRUARY 1970, PARA 33 AND 34.
18. ICJCASE CONCERNING EAST TIMOR (PORTUGAL v. AUSTRALIA) JUDGMENT OF 30 JUNE 1995.
19. ICTY,Prosecutor v Furundzija, 1998, para 151.
Muhammad Muzahidul Islam
Latest posts by Muhammad Muzahidul Islam (see all)
- International Criminal Law on Sexual and Gender Based Crimes - October 31, 2018
- Customary International Law in Courts: Developments by the World Court and Other International Courts - September 7, 2018
- Symposium on the Work of International Law: A Further Legal Analysis - October 17, 2017