ABSTRACT
Chapter 3 provides the thematic context for the analysis of the ICC negotiations of war rape and forced marriage. It retraces theoretical considerations regarding the causes and meanings of the perpetration of the two crimes as well as their legislative histories. War rape and forced marriage are understood to be weapons of war that are grounded in patriarchy, attributable to peacetime gender norms and stereotypes. They are ways to regulate gender relationships and to perform hegemonic masculinity. Additionally, forced marriages are formed in wartime to create dependency structures within fighting groups. War rape is also used as a theme in propaganda. War rape was first defined as an honour crime before it was more adequately understood as a breach of a person’s fundamental rights and established as a crime in its own right as well as potentially constituting other crimes such as torture and an act of genocide. The definition of rape developed from a conceptual coercion-based definition towards a mechanical coercion- and consent-based definition. Regarding forced marriage, a similar pattern can be noticed. First, forced marriage was defined as a form of sexual slavery before it was considered whether it would be more adequate to see it as another inhumane act. As such, forced marriage was understood to include a forced conjugal association, acts of sexualised violence and forced labour. Comparing the legislative histories of war rape and forced marriage highlights that a conduct is established as a serious problem first and then discussed in the context of existing crimes before it is criminalised in its own right.
