Articles

• Adams, Alexandra 1

Abstract

The article analyses the over 20 years’ jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda with respect to the crime of rape. It discusses how the attitude towards the prosecution of sexual crimes has changed since the Tribunals work began and what impact its jurisprudence has had on other attempts to define rape (elements of crime [EOC]). The article explores in depth the various definitions of rape given by the different chambers of both Tribunals. Consequently, it examines if the ultimate definition of the Kunarac chamber will prevail in international law. Not only are the weaknesses of the Kunarac definition that followed a pure consent approach revealed but the EOC of rape that opted for a combination of the coercion approach with one aspect of the lack-of-consent doctrine (incapacity) also face criticism. This leaves only one response – namely, that the elements of rape in international criminal law today can only be based upon a newly conducted comparison of national laws, thereby reflecting the general principles of the major legal systems of the world. The strongest accomplishment of both Tribunals concerning the crime of rape therefore lies not in the clarification of the elements of rape but, rather, in the revelation of a law-finding method, which is indispensable to the rudimentary field of international criminal law.

• 1Lebanese American University, Beirut, Lebanon