1 Regarding the armed conflict in Rwanda in 1994, the United Nations special rapporteur observed that “rape was the rule and its absence the exception.” Report on the Situation of Human Rights in Rwanda Submitted by René Degni–Ségui, UN Doc. E/CN.4/1996/68, para. 16; see also Report on the Situation of Human Rights in the Territory of the Former Yugoslavia Submitted by Mr. Tadeusz Mazowiecki, UN Doc. E/CN.4/1993/50, para. 85 (stating that “rape has been used not only as an attack on the individual victim, but is intended to humiliate, shame, degrade and terrify the entire ethnic group”); Patricia, Viseur Sellers, The Context of Sexual Violence: Sexual Violence as Violations of International Humanitarian Law, in 1 Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts: Commentary 263, 265–77 (Gabrielle, Kirk McDonald & Olivia, Swaak–Goldman eds., 2000)Google Scholar. For crimes of sexual violence against German women by members of the Red Army during World War II, see Antony Beevor, Berlin: The Downfall, 1945 (2002).

2 Specifically for rape, see Convention Relative to the Protection of Civilian Persons in Time of War, Art. 27(2), Aug. 12, 1949, 6 UST 3516, 75 UNTS 287 [hereinafter Geneva Convention IV]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Art. 76(1), June 8, 1977, 1125 UNTS 3 [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non–International Armed Conflicts, Art. 4(2)(e), June 8, 1977, 1125 UNTS 609 [hereinafter Additional Protocol II]. For other serious sexual assaults, see common Article 3 to the four Geneva Conventions, Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; id., Art. 147; Additional Protocol I, supra, Art. 85(4)(c); Additional Protocol II, supra, Arts. 4(1), 4(2)(a); all of which serve to prohibit cruel and degrading treatment. It should be noted that these provisions often refer especially to women as victims. Women and girls still suffer disproportionately from sexual violence in armed conflicts, and certain crimes such as forced pregnancy can be committed only against them. For more details, see Christine, Chinkin, Rape and Sexual Abuse of Women in International Law, 5 Eur. J. Int’1 L. 326 (1994)Google Scholar; Catharine A., MacKinnon, Rape, Genocide, and Women’s Human Rights, 17 Harv. Women’s L.J. 5 (1994)Google Scholar. However, men and boys have increasingly become victims of sexual violence in armed conflict. See, e.g., Prosecutor v. Tadić, No. IT–94–1–T, para. 198 (May 7, 1997) [hereinafter Tadić Trial Judgment]; Charli Carpenter, R., Recognizing Gender–Based Violence Against Civilian Men and Boys in Conflict Situations, 37 Security Dialogue 83 (2006)CrossRefGoogle Scholar. For this reason, this article intends to be gender neutral.

3 Theodor, Meron, Rape as a Crime Under International Humanitarian Law, 87 AJIL 424, 425 (1993)Google Scholar.

4 Control Council Law No. 10,Dec.20, 1945, Control Council For Germany, Official Gazette, Jan. 31, 1946, at 50, reprinted in 6 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 at xviii, Art. H(1)(c) (1952). Neither the Nuremberg nor the Tokyo Charter mentioned rape expressly, but prosecution was possible under the provisions on war crimes and crimes against humanity. Although significant evidence of sexual violence was introduced at trial, the Nuremberg Judgment does not contain any references to those crimes. In contrast, the Tokyo Tribunal convicted several accused for rapes and other acts of sexual violence. For further details, see Kelly Dawn Askin, War Crimes Against Women: Prosecution In International War Crimes Tribunals 129–203 (1997).

5 See Prosecutor v. Furundžija, No. IT–95–17/1–T, para. 169 (Dec. 10, 1998)Google Scholar [hereinafter Furundžija Trial Judgment]. Unless otherwise noted, the ICTY documents cited herein are available online at the Tribunal’s Web site, <http://www.un.org/icty>.

6 Rome Statute of the International Criminal Court, Arts. 7(1)(g) (crime against humanity), 8(2)(b)(xxii) & (d)(vi) (war crimes), July 17, 1998, 2187 UNTS 3, available at <http://www.icc–cpi.int/legal_tools.html> [hereinafter ICC Statute].

7 Statute of the International Criminal Tribunal for Rwanda, Arts. 3(g) (crime against humanity), 4(e) (war crime), SC Res. 955, annex (Nov. 8, 1994), 33 ILM 1598 (1994) [hereinafter ICTR Statute]; Statute of the International Criminal Tribunal for the Former Yugoslavia, Art. 5(g) (crime against humanity), SC Res. 827, annex (May 25, 1993), 32 ILM 1203 (1993) [hereinafter ICTY Statute]. Unless otherwise noted, the ICTR documents cited herein are available at the Tribunal’s Web site, <http://www.ictr.org>. This article hereinafter also refers to the ICTR and the ICTY as the “ad hoc Tribunals.”

8 See Prosecutor v. Akayesu, No. ICTR–96–4–T (Sept. 2, 1998)Google Scholar [hereinafter Akayesu Trial Judgment]; Prosecutor v. Musema, No. ICTR–96–13–T (Jan. 27, 2000)Google Scholar; Prosecutor v. Gacumbitsi, No. ICTR–2001–64–T (June 17, 2004)Google Scholar [hereinafter Gacumbitsi Trial Judgment]. All convictions in these cases were entered for genocide by means of causing serious bodily or mental harm.

9 See, e.g., Akayesu Trial Judgment, supra note 8 (other inhumane acts); Prosecutor v. Semanza, No. ICTR–97– 20–T (May 15, 2003)Google Scholar (torture) [hereinafter Semanza Trial Judgment]; Prosecutor v. Kunarac, No. IT–96–23–T & IT–96–23/1–T (Feb. 22, 2001)Google Scholar (enslavement and torture) [hereinafter Kunarac Trial Judgment]; Prosecutor v. Kvočka, No. IT–98–30/1–T (Nov. 2, 2001)Google Scholar (persecutions); Prosecutor v. Stakić, No. IT–97–24–T (July 31, 2003)Google Scholar (persecutions) [hereinafter Stakić Trial Judgment].

10 See, e.g., Prosecutor v. Delalić (Celebići), No. IT–96–21–T (Nov. 16, 1998)Google Scholar (torture) [hereinafter Čelebići Trial Judgment].

11 See, e.g., id. (torture); Furundžija Trial Judgment, supra note 5 (torture; outrages upon personal dignity, in particular, humiliating and degrading treatment); Kunarac Trial Judgment, supra note 9 (torture; rape; outrages upon personal dignity, in particular, humiliating and degrading treatment).

12 See Akayesu Trial Judgment, supra note 9, para. 686; see also Furundžija Trial Judgment, supra note 5, para. 175.

13 See Anne–Marie L. M., De Brouwer, Supranational Criminal Prosecution of Sexual Violence 117–24 (2005)Google Scholar; Adrienne, Kalosieh, Note, Consent to Genocide?: The ICTY’s Improper Use of the Consent Paradigm to Prosecute Genocidal Rape in Foca, 24 Women’s Rts. L. Rep. 121 (2003)Google Scholar.

14 See, e.g., Prosecutor v. Kunarac, Prosecutor’s Pre–Trial Brief, No. IT–96–23–PT, para. 128 (Dec. 9, 1999)Google Scholar; Prosecutor v. Gacumbitsi, Appellant’s Brief, No. ICTR–2001–64–A, paras. 155–83 (Sept. 28, 2004)Google Scholar [hereinafter Cacumbitsi Prosecution Appeal Brief]. These documents are not yet available on the Tribunals’ Web sites.

15 Gacumbitsi Prosecution Appeal Brief, supra note 14, para. 157.

16 Id., paras. 159, 182.

17 Id, paras. 160, 177–78. ICTR Rule 96 reads:

In cases of sexual assault:

• (i)Notwithstanding Rule 90 (C), no corroboration of the victim’s testimony shall be required;

• (ii)Consent shall not be allowed as a defence if the victim:

• (a)Has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression; or

• (b)Reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear;

• (iii)Before evidence of the victim’s consent is admitted, the accused shall satisfy the Trial Chamber in camera that the evidence is relevant and credible;

• (iv)Prior sexual conduct of the victim shall not be admitted in evidence or as defence.

ICTR, Rules of Procedure and Evidence, Rule 96, as amended Nov. 10, 2006. Rule 96 of the Rules of Procedure and Evidence of the ICTY is basically the same. See ICTY, Rules of Procedure and Evidence, Rule 96, as amended Sept. 13, 2006, UN Doc. IT/32/Rev.39 (2006) . The amended versions are available on the Tribunals’ Web sites, supra notes 5 and 7.

As to the first version of Rule 96, which per se excluded consent as a defense in cases of sexual assault, see Noëlle N. R. Quénivet, Sexual Offenses In Armed Conflict and International Law 25–27 (2005).

18 Although before the ad hoc Tribunals the discussion of consent has focused on the crime of rape so far, the issue is also relevant to other forms of sexual violence and shall be treated here accordingly.

19 See Gacumbitsi v. Prosecutor, No. ICTR–2001–64–A, para. 153 (July 7, 2006)Google Scholar [hereinafter Gacumbitsi Appeal Judgment].

20 Ngaire, Naffine, Windows on the Legal Mind: The Evocation of Rape in Legal Writings, 18 Melbourne U. L. Rev. 741, 757–58 (1992)Google Scholar.

21 See Kristen, Boon, Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy and Consent, 32 Colum. Hum. Rts. L. Rev. 625, 645–46 (2001)Google Scholar (with references).

22 See International Court of Justice Statute, Art. 38(c).

23 Furundžija Trial Judgment, supra note 5, para. 177.

24 Id.

25 Id., para. 178 (quoting Prosecutor v. Erdemović, Separate and Dissenting Opinion of Judge Cassese, para. 5, No. IT–96–22–A (Oct. 7, 1997)).

26 See Helmut, Kreicker, pt. II of Die Allgemeinen Strajbarkeitsvoraussetzungen bzw. Straffreistellungen, in 1 Nationale Strafverfolgung Völkerrechtlicher Verbrechen: Deutschland 299, 402–03 (Albin, Eser & Helmut, Kreicker eds., 2003)Google Scholar.

27 See, in particular, ICC Statute, supra note 6, Art. 5(1). With specific regard to the crime of rape, see Boon, supra note 21, at 642.

28 See Gerhard, Werle, Principles of International Criminal Law, marginal nos. 84, 566–70, 645, 817–18 (2005)Google Scholar (with references). Contra Kreicker, supra note 26, at 404.

29 For the crime of enslavement, see Prosecutor v. Kunarac, No. IT–96–23 & IT–96–23/1–A, para. 120 (June 12, 2002) [hereinafter Kunarac Appeal Judgment]. For the crime of deportation, see Prosecutor v. Stakić, No. IT–97–24–A, para. 279 (Mar. 22, 2006)Google Scholar [hereinafter Stakić Appeal Judgment]; see also id., Partly Dissenting Opinion of Judge Shahabuddeen, paras. 19–76.

30 See supra note 9. The same applies, mutatis mutandis, to sexual violence as a war crime and genocide.

31 It should be noted that since the Kordić and Čerkez appeal judgment, the appeals chamber of the ICTY has regarded cumulative convictions for persecution and other crimes against humanity as admissible. See Prosecutor v. Kordić, No. IT–95–14/2–A, paras. 1039–43 (Dec. 17, 2004)Google Scholar; see also Prosecutor v. Naletilić, No. IT–98–34–A, paras. 587–91 (May 3, 2006)Google Scholar.

32 See de Brouwer, supra note 13, at 57–58 (with further references).

33 See Akayesu Trial Judgment, supra note 8, para. 686. The ICTR has not yet dealt with the issue of deliberate HIV infection. See de Brouwer, supra note 13, at 57–58, 83–84.

34 See Boon, supra note 21, at 627; Chinkin, supra note 2, at 328.

35 This holds true particularly if sexual violence is tried as an underlying act of other offenses, such as torture or genocide by means of causing serious bodily harm.

36 Most states punish (active) killing even if the victim consented to it.

37 See, for example, Strafgesetzbuch [Penal Code] as amended Oct. 24, 2006, Bundesgesetzblatt, Teil I at 2350, §228 (Ger.): “Whoever commits bodily injury with the consent of the injured person only acts unlawfully if the act is, despite the consent, contrary to good morals.” See also Antonio, Cassese, Justifications and Excuses in International Criminal Law, in 1 The Rome Statute of The International Criminal Court: A Commentary 951, 953 (Antonio, Cassese, Paola, Gaeta, & John, R. W. D. Jones eds., 2002)Google Scholar.

38 Kunarac Trial Judgment, supra note 9, paras. 460, 644–47.

39 Id., para. 647.

40 Id.; Kunarac Appeal Judgment, supra note 29, para. 130.

41 See Cherif Bassiouni, M., Crimes Against Humanity In International Criminal Law 243 (2d ed. 1999)Google Scholar. The international element is also referred to as the “contextual element” or the “chapeau element” because it must be met by all offenses that underlie acts of genocide, crimes against humanity, and war crimes.

42 See Werle, supra note 28, marginal no. 81.

43 ICTR Statute, supra note 7, Art. 2(2); ICTY Statute, supra note 7, Art. 4(2). For more details, see William A. Schabas, Genozid Im Völkerrecht 289–322 (2003).

44 Prosecutor v. Jelisić, No. IT–95–10–A, para. 48 (July 5, 2001)Google Scholar.

45 Prosecutor v. Niyitegeka, No. ICTR–96–14–T, para. 410 (May 16, 2003)Google Scholar.

46 For more details, see Guénaël, Mettraux, International Crimes and The Ad Hoc Tribunals 233 (2005)Google Scholar, and references died there; Schabas, supra note 43, at 295–300.

47 See Kalosieh, supra note 13, at 128–29, 131–32.

48 For an in–depth analysis from a feminist perspective, see Karen, Engle, Feminism and Its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina, 99 AJIL 778 (2005)Google Scholar. According to the ICTY, the term “destruction” refers only to the physical or biological destruction of the group, not to the destruction of the group’s existence as a social entity. See, e.g., Prosecutor v. Krstić, No. IT–98–33–T, para. 580 (Aug. 2, 2001)Google Scholar; Prosecutor v. Krstić, No. IT–98–33—A, para. 25 (Apr. 19, 2004)Google Scholar. Whether sexual violence against members of a protected group is intended to further the physical or biological destruction of the group may be questionable, especially if it is not meant to lead to the death of the victims. However, in making the determination whether the perpetrator sought the biological or physical destruction of the group, the court may take the long–term impact of the crime upon the survival of the group into account. Id., para. 28; see also Prosecutor v. Blagojević, No. IT–02–60–T , paras. 657–66 (Jan. 17, 2005)Google Scholar. This interpretation allows for also considering sexual violence as an act of genocide when it is used. for example, to deprive the victim of reproductive capacity or marriageability for having had sexual contact with a member of a different ethnic group.

49 See, in particular, Akayesu Trial Judgment, supra note 8, para. 731. The ICTY has not yet entered convictions for sexual violence as an act of genocide, but it has considered sexual violence as one tool deployed in genocidal war. Engle, supra note 48, at 801 (with references).

50 See, e.g., Stakić Trial Judgment, supra note 9, para. 520.

51 ICTR Statute, supra note 7, Art. 2(2)(a)–(e); ICTY Statute, supra note 7, Art. 4(2)(a)–(e).

52 See Mettraux, supra note 46, at 235–36. It should be noted that genocide is the only core crime for which the attempt to commit the crime is expressly declared punishable. See, e.g., ICTR Statute, supra note 7, Art. 2(3) (d); ICTY Statute, supra note 7, Art. 4(3)(d).

53 See Kalosieh, supra note 13, at 121.

54 Prosecutor v. Tadić, No. IT–94–1–A, para. 248 (July 15, 1999)Google Scholar; see also ICC Statute, supra note 6, Art. 7(1).

55 See Kunarac Appeal Judgment, supra note 29, para. 91. As to the factors to be taken into consideration to determine whether an attack was directed against a civilian population, see id. In contrast to war crimes, this population would include the “attacking state’s” own civilians. Kunarac Trial Judgment, supra note 9, para. 423. For more details on the definition of “civilian population,” see Mettraux, supra note 46, at 163–70; Werle, supra note 28, marginal nos. 647–51.

56 Kunarac Trial Judgment, supra note 9, para. 415. See also Article 7(2)(a) of the ICC Statute, supra note 6, which provides:

As regards the jurisprudence of the ad hoc Tribunals, see Mettraux, supra note 46, at 156–61.

57 Kunarac Appeal Judgment, supra note 29, para. 94.

58 Id. For factors to be taken into consideration to determine whether an attack was widespread or systematic in nature, see Mettraux, supra note 46, at 171.

59 Kunarac Trial Judgment, supra note 9, para. 418. In determining whether the conduct of an accused forms a sufficient part of a widespread or systematic attack against a civilian population, the courts may consider all the circumstances of the case, including the characteristics, aims, nature, and consequences of the acts of the accused. Semanza Trial Judgment, supra note 9, para. 326; Prosecutor v. Kajelijeli, No. ICTR–98–44A–T, para. 866 (Dec. 1, 2003)Google Scholar.

60 Kunarac Trial Judgment, supra note 9, para. 418. According to some judgments of the ad hoc Tribunals, it also suffices that the accused knowingly took the risk of participating in the attack. See, e.g., Kunarac Appeal Judgment, supra note 29, para. 102. For factors to be taken into consideration to determine the mens rea of the accused, see Mettraux, supra note 46, at 173, with further references.

61 Mettraux, supra note 46, at 30.

62 See, e.g., Kunarac Trial Judgment, supra note 9, para. 402. According to the ICTY appeals chamber, an “armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT–94–1–A, para. 70 (Oct. 2, 1995), quoted in Kunarac Appeal Judgment, supra note 29, para. 56. This definition is generally accepted. Werle, supra note 28, marginal no. 822 (with references). For more details on the notions of “international” and “noninternational” armed conflicts, see, for example, Mettraux, supra note 46, at 33–38.

63 Kunarac Appeal Judgment, supra note 29, para. 58.

64 See Mettraux, supra note 46, at 39.

65 See Tadić Trial Judgment, supra note 2, para. 644.

66 See QuÉnivet, supra note 17, at 26 (referring to relationships between Frenchwomen and members of the German occupying forces during World War II, and to the treatment of women during the occupation of East Timor by Indonesia).

67 For example, borderline cases may be those in which someone engages in sexual contact in order to secure his or her own well–being or that of close relatives in the long term.

68 See Prosecutor v. Kayishema, No. ICTR–95–1–T, para. 188 (May 21, 1999)Google Scholar. With specific regard to rape, see also Kalosieh, supra note 13, at 126.

69 Kunarac Appeal Judgment, supra note 29, para. 58.

70 Rutaganda v. Prosecutor, No. ICTR–96–3–A, para. 570 (May 26, 2003)Google Scholar, states:

71 For an enumeration of these factors, see Mettraux, supra note 46, at 46, and the references cited there.

72 ICC, Elements of Crimes, Article 8 of the ICC Statute: War Crimes, Introduction, UN Doc. ICC–ASP/1/3, at 125 (2002), available at <http://www.icc–cpi.int/legaltools/>.

73 According to the ICTY appeals chamber in the Naletilć case, the principle of individual guilt requires that an accused know that his or her crime “ha[s] a nexus to an international armed conflict, or at least that he ha[s] knowledge of the factual circumstances later bringing the Judges to the conclusion that the armed conflict was an international one.” Naletilić, supra note 31, para. 118. In so stating, the appeals chamber went further than the Elements of Crime for Article 8 of the ICC Statute, supra note 72, which do not require awareness by the perpetrator of the facts that establish the character of the armed conflict as international or noninternational. In any event, this holding implicitly acknowledges that an accused must be aware of the nexus requirement in general.

74 However, see Mettraux, supra note 46, at 46–47 , who contends that the ICTY in particular has interpreted the nexus requirement too broadly, causing a critical overlap between those acts which may be said to amount to war crimes under the ICTY Statute and those which are regulated by national penal legislation.

75 See infra note 77.

76 See Furundžija Trial Judgment, supra note 5, para. 185; Kunarac Trial Judgment, supra note 9, para. 442; Kunarac Appeal Judgment, supra note 29, paras. 127, 128.

77 Akayesu Trial Judgment, supra note 8, para. 688. The trial chamber also noted that

Id.

78 Id., para. 686.

79 Id., para. 687, stating:

80 See Kalosieh, supra note 13, at 128.

81 Čelebći Trial Judgment, supra note 10, paras. 478–79.

82 Furundžija Trial Judgment, supra note 5, para. 177. De Brouwer observes that the Furundžija trial judgment was rendered only three weeks after the Čelebići trial judgment, which had confirmed the Akayesu definition of rape, and draws the conclusion that “the Furundžija Trial Chamber approach seems to imply that the Akayesu definition of rape was not sufficiently specific, and therefore in violation of the legality principle.” De Brouwer, supra note 13, at 111–12.

83 Furundžija Trial Judgment, supra note 5, para. 185.

84 See id., paras. 182–84. For more details on how far this definition departs from the Akayesu trial judgment in terms of a “mechanical” versus a “conceptual” approach toward the crime, see De Brouwer, supra note 13, at 114–15.

85 Furundžija Trial Judgment, supra note 5, para. 186 (emphasis added). The Furundžija trial chamber stressed that “any form of captivity vitiates consent.” Id., para. 271.

86 See note 83 supra and corresponding text.

87 Kunarac Trial Judgment, supra note 9, para. 438 (footnote omitted).

88 Id, para. 440.

89 But see id., para. 445 (noting that certain jurisdictions, in particular in the United States, require proof of force or threat of force, as well as the absence of consent of the victim).

90 Id., para. 442.

91 Id., para. 446.

92 Id., paras. 447–52.

93 Id., paras. 457–58. According to the trial chamber:

Id., para. 459.

94 Id., para. 460.

95 Kunarac Appeal Judgment, supra note 29, para. 129.

96 Id. (alteration in original) (footnotes omitted) (quoting Kunarac Trial Judgment, supra note 9, para. 438).

97 Id., para. 130.

98 Id., para. 132.

99 Gacumbitsi Prosecution Appeal Brief, supra note 14, para. 156.

100 Prosecutor v. Gacumbitsi, Indictment, No. ICTR–2001–64–T, Count 5 (June 20, 2001)Google Scholar [hereinafter Indictment].

101 Gacumbitsi Trial Judgment, supra note 8, paras. 198–228.

102 Id., para. 325.

103 Gacumbitsi Prosecution Appeal Brief, supra note 14, para. 183; Gacumbitsi Appeal Judgment, supra note 19, para. 150.

104 Although Gacumbitsi had been charged only with rape as a crime against humanity pursuant to Article 3(g) of the ICTR Statute, see Indictment, supra note 100, Count 5, the prosecution’s appeal also referred to rape as an act of genocide. The Gacumbitsi appeal judgment implies that the appeals chamber restricted its findings to rape as a crime against humanity; however, it does not specify whether this concerns only allegations pursuant to Article 3(g) of the ICTR Statute or also covers other offenses under this provision.

105 Gacumbitsi Appeal Judgment, supra note 19, para. 151 (quoting Kunarac Appeal Judgment, supra note 29, para. 127).

106 Id. (quoting Kunarac Appeal Judgment, supra note 29, para. 130; also quoted in text at note 97 supra).

107 Id., para. 152.

108 Id., para. 153.

109 For the text of Rule 96, see supra note 17.

110 Gacumbitsi Appeal Judgment, supra note 19, para. 154; see also Kunarac Trial Judgment, supra note 9, paras. 463, 464.

111 Gacumbitsi Appeal Judgment, supra note 19, para. 154 (endorsing the interpretation of Rule 96 as spelled out in the Kunarac Trial Judgment, supra note 9, paras. 463–64).

112 Id., para. 155.

113 Id., para. 157.

114 Id., para. 156.

115 Id.

116 With respect to sexual violence, see Chinkin, supra note 2, at 328—29.

117 See supra note 41 and corresponding text.

118 Kunarac Appeal Judgment, supra note 29, para. 129, quoted in text at note 96 supra (“Force or threat of force provides clear evidence of non–consent...”).

119 With regard to such provisions, consent and nonconsent, respectively, are neither an element of the crime nor, in principle, available as an affirmative defense. According to the Kunarac appeals chamber:

Kunarac Appeal Judgment, supra note 29, para. 131 (footnotes omitted) (quoting State v. Martin, 561 A.2d631, 636 (N.J. App. Div. 1989)).

120 See QuÉnivet, supra note 17, at 25–26; Kate, Fitzgerald, Problems of Prosecution and Adjudication of Rape and Other Assaults Under International Law, 8 Eur. J. Int’l L. 638, 641–42 (1997)Google Scholar.

121 Engle, supra note 48, at 804.

122 See text at note 93 supra.

123 For a possible example, see de Brouwer, supra note 13, at 117, 118.

124 See Kunarac Appeal Judgment, supra note 29, para. 67 (quoting 1 Trial of The Major War Criminals Before The International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, at 221 (1947): “[T]he laws of war ‘are not static, but by continual adaptation follow the needs of a changing world’.”); see also David, Hunt, The International Criminal Court: High Hopes, ‘Creative Ambiguity’ and an Unfortunate Mistrust in International Judges, 2 J. Int’l Crim. Just. 56, 59 (2004)Google Scholar.

125 Stakić Appeal Judgment, supra note 29, Partly Dissenting Opinion of Judge Shahabuddeen, paras. 35–39 (footnotes omitted).

126 See de Brouwer, supra note 13, at 122–23.

127 See text at note 77 supra.

128 As for the term “core crimes,” see the last sentence of the first paragraph of this essay.