This article was written by Ananya Bose, a student of Symbiosis Law School, Pune.
“In law, it is not the obvious that needs be specified, but the ambiguous that must be clarified.”
The recent abuse of Iraqi prisoners by American soldiers at Abu Ghraib prison, including sexual violence and torture, shocked the public conscience. In the last decade, the international community has witnessed atrocities of sexual violence on an unimaginable scale. Abuses in Rwanda, the former Yugoslavia, Sierra Leone, and the recent exposure of the mass rape and sexual enslavement of some 200,000 so called “comfort women” by Japanese military personnel during World War II clearly placed the issue of sexual violence on the international agenda and have subsequently led to a growing recognition of the importance of prohibiting crimes of sexual violence, including rape. The Lieber Instructions (1863),the first codification of customary international laws of land warfare and an important influence on the modern law of war, classified rape as a crime of “troop discipline,” and the current applicable law regarding war contained within the Nuremberg Charter, the 1949 Geneva Conventions, and the 1977 Additional Protocols contain a number of shortcomings and contradictions with respect to defining sexual violence as a serious international offense.
Over the last ten years, the extraordinary developments in gender jurisprudence ushered in by the ad hoc Tribunals and the International Criminal Court (ICC) reflect the international community’s willingness to combat and redress crimes of sexual violence as a specific means of warfare, and there is now a strong indication that such crimes constitute jus cogens.
WHAT IS JUS COGENS IN INTERNATIONAL LAW?
The jus cogens doctrine defines peremptory norms from which no derogation is permitted and is “essentially a label placed on a principle whose perceived importance, based on certain values and interests, rises to a level that is acknowledged to be superior to another principle, norm or rule and thus overrides it.” Drafted in 1969, Article 53 of The Vienna Convention on the Law of Treaties formally defines the international legal principle of jus cogens and says-“A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.”
PROHIBITION OF RAPE AS JUS COGENS
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.
Prohibition of rape as jus cogens in international law has been established by below mentioned instruments in international law.
Lieber Instructions provides that 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 with penalty of death.
1907 Hague Convention– It Does not explicitly prohibit rape, but instead provides for the protection of women under Article 46, which states, “family honour and rights, the lives of persons, and private property. . . must be respected.”
The Fourth Geneva Convention, relating to the protection of civilian persons during time of war, also prohibits rape and forced prostitution under Article 27.
Rape is explicitly listed as a crime against humanity in Article 5 of the ICTY Statute and Article 3 of the ICTR Statute.
Article 7(1)(g)of the Rome Statute provides a definitive formulation of crimes against humanity that includes “. . .rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.” This list of crimes is also included in two separate sub-paragraphs of Article 8 enumerating war crimes.
The Law and Practice of Nations
“The domestic law of every state in the world outlaws rape.” Two recent domestic cases redressing international gender crimes, Kadic v. Karadzic and Hwang Geum Joo, et al. v. Japan, pronounced on the legal value of rape and implicitly confirmed its jus cogens character. International disapproval of violent sexual acts is so fundamental and so compelling that the prohibition amounts to a jus cogens rule. the weight of domestic practice opposing rape, both uniform and expressive of an objective legal obligation, reflects the fundamental interests of the international public order and provides further justification for asserting that this prohibition is of a peremptory nature.
Decisions of International and Regional Judicial Bodies
First, rape has been found by several international judicial bodies to constitute the elements of torture. At the regional level, Aydin v.Turkey and Mejia Egocheaga v. Peru, both issued decisions interpreting rape as an act of torture. In Mejia, the Inter-American Commission of Human Rights ruled that the rape of Raquel Mejia by members of the Peruvian Army constituted torture in breach of the Geneva Conventions and Article 5 of the Inter-American Convention. In Aydin, the European Court of Human Rights interpreted rape as an act of torture under Article 3 of the European Convention and “specifically affirmed the view that rape involves the infliction of suffering at a requisite level of severity to place it in the category of torture.” A number of U.N. General Assembly and Security Council Resolutions have strongly condemned sexual violence regarding atrocities in Rwanda, the former Yugoslavia, Sierra Leone, East Timor, Japan, Haiti, Myanmar (Burma), and Afghanistan.
Undeniably, the prohibition of rape as a crime in international humanitarian law possesses the character of jus cogens. A general norm prohibiting rape satisfies the basic sources of international law—treaty, custom, and general principles—as well as the objective indicia put forth by the ILC. First, the norm is prohibited from derogation in a large number of normative multilateral agreements. Second, the municipal law of every nation in the world outlaws rape as part of general custom and rape is frequently condemned in the practice of most nations as an obligatory rule of higher international standing. Finally, international courts, regional tribunals, and the U.N. Security Council have recognized and applied this protective concept as a jus cogens rule.
The assertion of an inviolable peremptory norm prohibiting rape is an important step toward increasing normative compliance, state responsibility, and effective prosecution. By developing the legal capacity to prosecute rape as a serious violation independently from other peremptory norms, states will be compelled to recognize and act on their obligation to pursue those responsible, which will help to ensure accountability and deter future violations. After centuries of disregard, it is time to firmly establish an inderogable protection against rape as a high level constitutional principle of the international legal system.
 M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 369 (1999).
Special Rapporteur on Violence Against Women, Mission to Indonesia and East Timor on the Issue of Violence Against Women (20 November-4 December 1998)
 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
 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 74 U.N.T.S. 287, 306. [hereinafter Geneva Convention
 Rome Statute, art. 8(2)(b)(xxii) (“rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions”).
Código Penal del Chile, Biblioteca del Congreso Nacional, COD-18742 (2001); Art. 236 of the Chinese Penal Code (1997); Art. 177 of the German Penal Code (StGB); Art. 177 of the Japanese Penal Code, translated in THE CRIMINAL CODE OF JAPAN (Thomas L. Blakemore, trans., 1954); Art. 179 of the Socialist Federal Republic of Yugoslavia Penal Code; §132 of the Zambian Penal Code, reprinted in 7 LAWS OF THE REPUBLIC OF ZAMBIA (REVISED) 1995; Art. 201 of the Austrian Penal Code (StGB); French Code Pénal Arts. 222-22; Art. 519 of the Italian Penal Code reprinted in 23 THE AMERICAN SERIES OF FOREIGN PENAL CODES, ITALIAN PENAL CODE (1978);. CÓD. PEN. art. 119 (Arg.). PEN. CODE § 375 (Pak.). PEN. CODE art. 375 (India). PEN. CODE § 117 (Uganda). PEN. CODE art. 242 (Neth.). CRIM. CODE ch. XXXII, art. 297 (S. Korea); CRIM. CODE ch. 24, art 216(1) (Den.); CRIM. CODE § 271-73 (Can.); CRIMES ACT OF 1961 § 128 (N.Z); CÓD. PEN. art. 195 (Nicar.).
 Kadic v. Karadzic, 70 F. 3d 232 (2d Cir. 1995).
 Hwang Geum Joo v. Japan, 172 F. Supp. 2d 52 (D.D.C. 2001).
 Mejia Egocheaga v. Peru (1996) 1 Butterworths Human Rights Cases 229.
Aydin, 3 Butterworths Human Rights Cases 300, at 314.