Conceptualizing the role of consent in the definition of rape at the international criminal court: a norm transfer perspective

Over the past three decades, international criminal legal standards on sexual and gender-based violence have developed rapidly, sparking debate within feminist circles over the extent to which these developments might be relevant to domestic contexts in a process termed “norm transfer.” Indeed, non-governmental organizations and feminist scholars have called for domestic adoption of the International Criminal Court (ICC) definition of rape due to its omission of the element of the absence of consent. However, the place of consent in an international criminal definition of rape is a hotly contested topic, with disagreement as to whether rape in conflict should be considered “exceptional” or a continuation of everyday violence against women. This article provides a new lens through which to explore these questions by situating the feminist strategy of norm transfer within the complementarity-based system of the ICC. It uncovers a number of gaps within the ICC definition that raise questions not only about the status of the definition as a candidate for norm transfer but also about the robustness of the definition itself. The article concludes by considering the role of consent as an implicit element within the ICC definition and its operation as a defense.