Abstract
The legal definition of rape still causes debate and unsolved problems in both domestic jurisdictions and in International Criminal Law (ICL). This essay is concerned with the definition of rape in wartime in ICL, as a uniform statutory definition does not yet exist. I will focus specifically on the debate whether a coercion or a consent-based approach should be favoured in defining rape in ICL. This essay argues in favour of a consent-based approach because the element of consent gives women agency. Nevertheless, the special circumstances of war should not be disregarded. This is why I suggest a shifting of the burden of proof in wartime, regarding the element of non-consent. Non-consent is assumed, and the defendant would need to prove consent. This approach enables a balance between the wish of the victim to prosecute the crime committed against him/her effectively and the rights of the defendant.
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