Feminist Engagement with International Criminal Law: Norm Transfer, Complementarity, Rape and Consent

Description

This work introduces and further develops the feminist strategy of 'norm transfer': the proposal that feminist informed standards created at the level of international criminal law make their way into domestic contexts. Situating this strategy within the complementarity regime of the International Criminal Court (ICC), it is argued that there is an opportunity for dialogue and debate around the contested aspects of international norms as opposed to uncritical acceptance. The book uses the crime of rape as a case study and offers a new perspective on one of the most contentious debates within international and domestic criminal legal feminism: the relationship between consent and coercion in the definition of rape. In analysing the ICC definition of rape, it is argued that the omission of consent as an explicit element is flawed. Arguing that the definition is in need of revision to explicitly include a context-sensitive notion of consent, the book goes further, setting out draft legislative amendments to the ICC 'Elements of Crimes' definition of rape and its Rules of Procedure and Evidence. Turning its attention to the domestic landscape, the book drafts amendments to the United Kingdom (UK) Sexual Offences Act 2003 and to the Youth Justice and Criminal Evidence Act 1999: thereby showing how the revised version of the ICC definition can be applied in context of the UK. Acknowledgements Table of Contents List of Abbreviations Table of Cases PART I: THE LEGAL AND THEORETICAL CONTEXT 1. Rethinking Feminist Engagement with International Criminal Law: An Introduction I. Key Terms and Scope of the Study II. Setting the Theoretical and Legal Context III. Contribution to Scholarship IV. Methodology: From Theory to Practice V. Recurrent Themes VI. Chapter Synopsis 2. Feminism and International Criminal Law: Key Tensions I. Introduction II. Feminist Intervention into International Criminal Law III. ‘Running Hard to Stand Still’: Feminism and the Criminal Justice Apparatus IV. International Criminal Law as a Lost Cause? Framing Future Directions V. Conclusion 3. The Feminist Strategy of Norm Transfer and the Complementarity Regime of the International Criminal Court I. Introduction II. Norm Transfer as a Feminist Strategy III. Norm Transfer and the Role of the ICC’s Complementarity Regime IV. Norm Transfer as a Dialogue and the Definition of Rape V. Conclusion PART II: RAPE AS A CASE STUDY 4. Defining Rape in International Criminal Law: Development and Divergence I. Introduction II. Defining the Crime of Rape at the ad hoc Tribunals: Judicial Development III. Defining the Crime of Rape at the ICC IV. Domestic Approaches to Defining Rape V. Conclusion 5. Rape in War, Rape in Peace: A New Typology of the Wrong of Rape I. Introduction II. Rape in Conflict: Innovation and Exceptionalism III. Rape in Peace: The Egregious of the Everyday IV. Conceptualising the Wrong of Rape at the Ad Hoc Tribunals: A New Typology V. Conclusion 6. A Feminist Critique of the International Legal Definition(s) of Rape and the Prospect of Norm Transfer I. Introduction II. The Consent Threshold as Inappropriate in International Criminal Law III. The Importance of Consent and the Politics of Representation IV. Assessing the Competing Feminist Perspectives V. The ICC Definition and the Feminist Strategy of Norm Transfer VI. Revising the ICC Definition of Rape VII. Conclusion PART III: SHAPING FUTURE DIALOGUE ON NORM TRANSFER 7. Conclusion: Norm Transfer as a Dialogue I. Norm Transfer as a Dialogue II. The Relationship between Consent and Coercion III. Legislative Drafting as a Feminist Methodology Appendix I: Amendment to the ICC Definition of Rape Appendix II: Amendment to the Sexual Offences (UK) 2003 Definition of Rape Bibliography Index