Development of International Criminal Law on Sexual and Gender-Based Crimes

Abstract

While sexual and gender-based crimes (‘SGBCs’) are as common as murders during situations of armed conflict and mass atrocity throughout history, international law was indifferent toward SGBCs for a long period of time. SGBCs in conflicts or other forms of instability were considered as mere opportunistic criminal activities or idiosyncratic acts committed by a few errant soldiers. It was only after 1990 that international law started affirming that SGBCs are used as a tactic of war to deliberately target civilians or committed as part of a mass atrocity against civilian populations, which could significantly impede the restoration of international peace and security. This article aims to examine the background and normative status in developing international criminal law on SGBCs. With this purpose in mind, this article first provides historical background of how legal proscription of SGBCs in international law has shifted throughout history, and examines what motivates this shift in international law on SGBCs since the 1990s. Based on this analysis, this article explores the current normative status of international criminal law on SGBCs by examining the Rome Statute of the International Criminal Court, the policy of the Court’s Office of the Prosecutor to investigate and prosecute SGBCs, and jurisprudential developments shaped by the Court’s recent judgments on SGBCs.