Gender and the recognition of rights - Recognising rape as a jus cogens norm per se and defining its elements in international law

Abstract

Rape has been used as means of war for as far as our civilization has engaged in conflicts and has, likewise, devastated societies in peacetime. In this regard, those who are most affected are women and girls. The theme has been treated extensively throughout literature, international treaties, declarations, resolutions, and domestic law and has frequently been described as one of the worst possible crimes that challenge the very existence of society. Why then it is not formally and legally recognised as such, as a norm from which no derogation is allowed, a norm so relevant that would trigger international and national consequences that would force States to properly take the subject into consideration? Nor has it been given a consistent gender sensitive and generally accepted definition in international law? Jus Cogens norms are precisely those norms that are perceived as so important that they cannot be derogated, no matter the case and the prohibition of some heinous crimes are already recognised as such. Examples include torture, crimes against humanity, racial discrimination, and slavery. Rape might even be indirectly considered as jus cogens when it amounts, for instance, to torture or elements of genocide, but why not hold this classification on its own? Gender has always greatly influenced numerous aspects of our society, politics, decision- and law-making processes, our behaviour, and priorities and, in this scenario, one perspective is constantly not being considered and repeatedly invisibilised, i.e. women’s perspective, which leads to biased norms with limited reach that do not reflect the needs and voices of half of the world’s population. If our international legal system were not gendered, would rape be given due consideration? Would it fulfil the criteria to be considered jus cogens by itself? Would it be afforded a common and accepted definition that considers gender within its core? Through a feminist approach, this work aims to explore the gendered aspects of international law, by demonstrating its biases, and the possible answers to those questions, in addition to extensively examining the prohibition of rape internationally, including its definition (or lack thereof) by studying notorious cases from international judicial or quasi-judicial bodies, along with an analysis on jus cogens rights, how they are characterised and, finally, if rape meets the criteria to be considered jus cogens by itself.