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The crime of rape has been prohibited in international law for centuries; however, the impetus to define the crime of rape in international criminal law did not arise until the early 1990s. During this period numerous international criminal judicial bodies were developed, accompanied by a shift in attitude from regarding rape as an inevitable consequence of war to a crime worthy of international condemnation. This shift was engendered, at least in part, by feminist intervention into international criminal law, forming part of a larger ‘feminist international law project'. International criminal law has been particularly alluring from a feminist perspective, as the forms of violence women are subjected to occur both in times of peace and conflict; thus, the attention given to the crime of rape in the international criminal context could be harnessed and redirected to inform developments at the domestic level in a process termed ‘norm transfer'. However, the feminist strategy of norm transfer is complicated by the distinct nature of international criminal law and domestic law raising questions about the desirability of such a’strategy. Indeed, the particular context in which international criminal law operates has led to the development of four overlapping, though distinct, definitions of rape at the international criminal level. This Dissertation contributes to the feminist international law project in two ways: first, it evaluates the feminist strategy of norm transfer to discern whether it is advisable and, second, it interrogates the definitions articulated at the international criminal level to facilitate ‘healthy norm transfer, should it occur. The study thus provides a normative contribution, aiming to evince what the position of consent ought to be in an international criminal definition of rape. |
