Defining Rape:Emerging Obligations for States underInternational Law?

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Contents

Part I: Introduction

1 The Definition of Rape in an International Perspective

1.1 Background

1.2 Purpose and Research Questions

1.3 Delimitations

1.4 Terminology

1.5 Sources of International Law

1.6 Method

1.7 Structure of the Book

Part II: Elements of the Crime of Rape: A Contextual Approach

2 The Prohibition of Rape in Domestic Criminal Law: An Historical Overview

2.1 Introduction

2.2 Early Codes: Rape as a Violation of Property Rights

2.3 The Middle Ages

2.4 Corroboration of Complaints

2.5 The Women’s Movement and Law Reforms

3 The Harm of Sexual Violence

3.1 Introduction

3.2 How to Define Harm

3.3 Can Sexuality be Harmed?

3.4 Human Dignity and Sexual Autonomy

3.5 Cultural and Collective Harm

4 Elements of the Crime of Rape

4.1 The Principle of Legality

4.1.1 The Principle in International Law

4.1.2 The Extent of Interpretation

4.2 Substantive Elements of the Definition of Rape

4.2.1 Introduction

4.2.2 The Elements of the Crime

4.2.3 Non-Consent

4.2.3.1 Performative and Subjective Consent

4.2.3.2 Appropriate Antecedents and Consent

4.2.4 Coercion

4.2.5 Force or Threat of Force

4.2.6 Implications of Non-Consent or Force Standards

4.2.7 Actus Reus

4.2.8 Mens Rea and Criminal Responsibility

5 Sexual Violence in Context

5.1 Introduction: Armed Conflict and Gender Hierarchies as Contextual Elements

5.2 Victims of Armed Conflicts

5.3 The Presence of Sexual Violence in Conflicts

5.4 Theories on the Existence of Sexual Violence in Armed Conflicts

5.5 Rape as a Strategic Tactic of War

5.5.1 Rape as a Crime against the Community

5.5.2 Distinguishing Rape from “Regular” Sexual Relations in Armed Conflicts

5.5.3 The Contextual Approach to a Definition of Rape

5.5.4 Armed Conflict as a Factor in Defining Rape

5.6 Common Forms of Rape in Peacetime

5.7 The Prohibition of Rape from Feminist Viewpoints

5.7.1 The Impact of Gender in Defining Rape

5.7.2 Feminist Critique of International Law

5.8 Male Rape – The Excluded Victim?

Part III: An International Human Rights Law Perspective

6 State Obligations to Prevent and Punish Rape

6.1 Introduction

6.2 The Role of the State in International Human Rights Law

6.3 The Limits of State Obligations: Conduct Attributable to the State

6.3.1 Primary and Secondary Rules

6.3.2 Definition of an Internationally Wrongful Act

6.3.3 Domestic Laws as Breaches of International Law

6.3.4 Forms of Attribution

6.3.5 Widening the Scope of Responsibility under International Law

6.3.6 Consequences of the Public/Private Divide for Women’s Human Rights

6.4 The Due Diligence Standard – An Obligation to Prevent and Punish Human Rights Violations

6.4.1 The Scope of Due Diligence and the Nature of State Obligations

6.4.2 Obligations in International Human Rights Treaties

6.4.3 Which Rights Engender Due Diligence Obligations?

6.4.4 The Due Diligence Standard as a Tool in Preventing Violence against Women

6.4.5 Prevention through Domestic Criminalisation

6.4.6 Jurisprudence Delineating the Obligation to Enact Criminal Laws

6.4.6.1 Case Law on Domestic Violence of the European and Inter-American Human Rights Systems

6.4.6.2 Case Law on Sexual Violence

6.4.6.3 Conclusions on Obligations in Case Law to Prevent Sexual Violence

6.4.6.4 Relevant Views and Statements from UN Treaty Bodies

6.4.7 Failure of State Obligations to Prevent Single Cases of Rape

6.5 Margin of Appreciation – Flexibility in National Implementation?

6.6 Conclusions on State Obligations

7 The Recognition of Rape as a Violation of International Human Rights Law

7.1 Is There a Human Right to Sexual Autonomy?

7.2 The Prohibition of Torture and Inhuman or Degrading Treatment

7.2.1 The Elements of Torture

7.2.2 State Nexus

7.2.3 Views and Cases on Rape as a Form of Torture

7.2.3.1 The UN System

7.2.3.2 Regional Human Rights Courts

7.2.4 International Criminal Law – A New Direction in Interpreting the Torture Definition?

7.2.4.1 State Nexus

7.2.4.2 Severity

7.2.4.3 Purpose

7.3 Rape as a Violation of the Right to Privacy

7.4 Rape as a Violation of the Non-Discrimination Principle

7.4.1 The Principle of Equality and Non-Discrimination

7.4.2 Purpose or Effect of Discrimination

7.4.3 State Obligations

7.4.4 Sexual Violence as a Form of Gender Discrimination

7.4.5 The Definition of Rape as an Expression of Gender Discrimination

7.4.5.1 Gender Inequality and Access to Justice

7.4.5.2 Gender-Bias in the Law

7.4.5.3 Gender-Bias in Language

7.4.5.4 Statistics as Evidence

7.5 Universal Impact of the Regional Approach

7.6 The Ius Cogens Character of the Prohibition of Rape

7.6.1 Which Rights are Peremptory Norms?

7.6.2 A Gender-Sensitive Interpretation of Ius Cogens

7.7 Summary of State Obligations on the Prohibition and Definition of Rape

Part IV: An International Humanitarian Law and International Criminal Law Perspective

8 International Humanitarian Law

8.1 Introduction: International Humanitarian Law and Enforcement through International Criminal Law

8.2 Characteristics of International Humanitarian Law

8.3 Early Codification of the Prohibition of Rape in International Humanitarian Law

8.4 The International Military Tribunals at Nuremberg and of the Far East: The Birth of International Criminal Law

8.5 The 1949 Geneva Conventions and the 1977 Additional Protocols

8.6 The ICRC Study on Customary International Humanitarian Law

8.7 Intergovernmental Organisations and the Prohibition of Sexual Violence in Armed Conflicts

9 International Criminal Law

9.1 Introduction

9.2 Prosecution of Rape – The Ad Hoc Tribunals

9.2.1 ICTR: The First Definition of Rape in International Law

9.2.1.1 The Akayesu Case – A Conceptual Approach to Rape

9.2.1.2 Beyond the Akayesu Judgment

9.2.1.3 Conclusions

9.2.2 ICTY: New Approaches in Defining Rape

9.2.2.1 The Furundzija Judgment – A Focus on Force or the Threat of Force

9.2.2.2 The Kunarac Judgment – Rape as a Violation of Sexual Autonomy

9.2.3 Conclusions Based upon the Case Law of the ICTR and ICTY

9.2.4 The Special Court for Sierra Leone

9.3 The International Criminal Court

9.3.1 The Birth of the ICC

9.3.2 The Rome Statute and the Prohibition of Rape

9.3.3 A Complementary Relationship

9.3.4 The Rome Statute and the Scope of State Cooperation

9.3.4.1 A Duty to Implement the Crimes?

9.3.4.2 Modes of Implementation

9.3.4.3 Complementarity – Creating Demands on the Content of Domestic Laws?

9.3.4.4 Unwillingness

9.3.4.5 Inability

9.3.4.6 Ordinary Crimes

9.3.5 The Elements of the Definition of Rape

9.3.6 The Elements of Crimes and Its Status for Member States

9.3.7 Situations Investigated by the Court

9.3.8 Impact of the ICC

9.4 Universal Jurisdiction for the Crime of Rape?

9.4.1 Which Crimes Incur Universal Jurisdiction?

9.4.2 Domestic Application – Various Solutions

9.4.3 Conclusion on Universal Jurisdiction and the Prohibition of Rape

Part V: The Prohibition of Rape – Closing the Gap between International Human Rights Law and International Humanitarian Law?

10 The Interplay between International Human Rights Law and International Humanitarian Law

10.1 The Concepts of Harmonisation and Humanisation in International Law

10.2 The Nature of International Human Rights and International Humanitarian Law

10.3 Fragmentation and Specialisation of Public International Law

10.3.1 General Remarks

10.3.2 Lex Specialis versus Lex Generalis

10.3.3 Case Law of the ICJ

10.3.4 A Complementary Approach

10.3.5 Fundamental Standards of Humanity – A Step towards Harmonisation

10.4 The Concept of “Humanisation” of Humanitarian Law and Its Emergence

10.5 The Application of International Humanitarian Law by Human Rights Courts and Treaty Bodies

10.6 Is Harmonisation Desirable?

10.7 Harmonising the Definitions of Rape and Torture

10.7.1 The Definition of Torture

10.7.2 The Definition of Rape

Part VI: A Cultural Perspective

11 Cultural Relativism and Obstacles to a Uniform International Definition of Rape

11.1 Cultural Relativism and Women’s Human Rights

11.1.1 Relativity of Women’s Rights

11.1.2 Conflicts of Rights

11.2 Cultural Relativism and International Criminal Law

11.3 Culture and Mens Rea – A Criminal Defence

11.4 Relativism Inherent in the International Law System

Part VII: Conclusions – Emerging Obligations in Defi ning the Crime of Rape?

12 Concluding Summary and Remarks

12.1 Introduction

12.2 Conclusion: The Prohibition and Definition of Rape in International Law

12.3 The Harmonisation of Regimes and the Importance of Context

12.4 General Remarks

12.5 Critique of International Law Affecting the Prohibition of Rape

12.6 The Legal Basis for Defining Rape

12.7 Suggestions for the Future

References

Bibliography

Index