Rape as a weapon of war? - A critical legal analysis of the definition of rape and the concept of rape as a weapon of war

Abstract: Systematic rape of women in wartime is an ancient issue. For centuries, rape was seen as an inevitable by-product of war and it is not until recently that the international community has recognized rape as a weapon of war. There are several reasons for the systematic use of rape in times of conflict and this thesis will provide some of the most generally received theories. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have made the most important advances regarding wartime rape. The tribunals were the first international criminal tribunals that explicitly recognized rape as a crime against humanity. The ICTR also acknowledged that rape could constitute an act of genocide. The thesis will give a comprehensive analysis of the requirements necessary for rape to be prosecuted as crimes against humanity or genocide. The recognition of rape as a weapon of war have been significant for the visibility of wartime rape, however, the concept may have had some unintended consequences. The concept may exclude some victims from the justice system and draw focus from the individual act of rape. ICTY and ICTR have also developed different definitions of rape throughout its jurisprudence. The most received definition requires proof of non-consent or coercive circumstances for a successful conviction. The question of non-consent have been a subject for discussion among legal scholars and differences have arisen. This thesis will compare and analyse the definitions developed by the ad hoc Tribunal and the question of non-consent will be given further attention.