The Evolving Jurisprudence of the Crime of Rape in International Criminal Law

Abstract

For centuries, rape has served as a weapon of war, despite criminal prohibitions forbidding its use. Nevertheless, only in recent decades has international law made significant strides in defining and prosecuting rape as a war crime and crime against humanity. International criminal tribunals prosecuting crimes of sexual violence in prior conflict zones such as Rwanda, Sierra Leone, and the former Yugoslavia have struggled to develop a coherent definition of the elements of rape. This is largely due to the unique aspects of consent and coercion that are inherent within a surrounding context of armed conflict. This Article begins by exploring the elements of rape as defined by the major international criminal tribunals existing today, and subsequently examines the manner in which each court considers proof of consent and coercion. It then surveys some of the recent and more progressive developments in rape law jurisprudence both domestically and internationally. Finally, this Article recommends several specific steps that international criminal tribunals could employ to more effectively and equitably prosecute rape as a war crime and crime against humanity.