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Judicial Creativity at the International Criminal Tribunals$
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Shane Darcy and Joseph Powderly

Print publication date: 2010

Print ISBN-13: 9780199591466

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199591466.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 11 December 2019

Creating a Definition of Rape in International Law: The Contribution of the International Criminal Tribunals

Creating a Definition of Rape in International Law: The Contribution of the International Criminal Tribunals

Chapter:
(p.129) 6 Creating a Definition of Rape in International Law: The Contribution of the International Criminal Tribunals
Source:
Judicial Creativity at the International Criminal Tribunals
Author(s):

Niamh Hayes

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199591466.003.0007

This chapter examines the attempts by the judges of the Yugoslavia and Rwanda Tribunals to identify and develop a coherent and workable definition of rape as an international crime. It traces the evolution of this process from the groundbreaking conceptual definition created in the Akayesu judgment, through the introduction of more mechanical elements of penetration and lack of consent in the Furundžija and Kunarac cases, up to the most recent authoritative statement of the Appeals Chamber in Gacumbitsi upholding the inclusion of non-consent as an element of the crime of rape. The chapter analyses the appropriateness of consent as an element of the crime of rape when committed as an act of genocide, a crime against humanity or a war crime, as well as the judicial and interpretational factors which gave rise to its inclusion.

Keywords:   international criminal law, crimes, rape, sexual violence, elements of crimes, crimes against humanity, genocide, precedent, judicial interpretation, Yugoslavia

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