The First Rape Prosecution before the icc: Are the Elements of Crimes Based on a Source of International Law?

Abstract

In the first rape prosecution before the icc against Germain Katanga, the Court applied the eoc of rape without verifying whether the eoc are based on a source of law. The article questions whether the eoc of rape can actually be traced back to the source of law of general principles of national laws according to Art. 21(1)(c) icc Statute. A comparison of six domestic laws revealed two models in the construction of a rape offence – either coercive means or a lack of consent are included in the actus reus of rape. The eoc, on the other hand, combine means of coercion with a partial aspect of the ‘lack of consent’-approach. The additional inclusion of one aspect of the ‘lack-of-consent’-concept (mental impairment) in a merely coercive rape offence contradicts the findings of the comparison of domestic criminal laws.