| dc.description.abstract | The incorporation of the European Convention on Human Rights (ECHR) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) into the Human Rights Act, and transformation of the Rome Statute into the Norwegian Penal Code of 2005(NPC) has actualized the impact of international tendencies in regard of positive obligations under the Conventions to penalise any non-consensual activity as rape. Failure to comply with these international obligations provides different outcomes for the Member State Parties. At the present, the current definition of rape in Section 192 of the General Civil Penal Code of 1902 (GCPC) is in conflict with the international obligations of Norway, as it does not penalise non-consensual sexual activity as rape. The ECtHR stated in M.C v. Bulgaria that the Member State Parties have a positive obligation to penalise any non-consensual sexual act cf. Articles 3 and 8 of the ECHR. Failure to comply with this obligation may give rise to damage liability for the State of Norway towards individuals subject to non-consensual sexual activity. The Committee of CEDAW urged Norway in its Eight Periodic Report of Norway to: Adopt a legal definition of rape in the Penal Code so as to place the lack of consent at its centre, in line with the Commit-tee´s general recommendation No. 19, and the Vertido case. In the light of relevant domestic statutory law and case law, this recommendation can be interpreted as a specific provision under CEDAW and thus a positive obligation for Norway to undertake. Failure to comply with this ob-ligation might contribute to continued discrimination of women in law and practice. The Rome Statute was transformed into the Norwegian Penal Code (NPC) of 2005 chapter 16 penalising rape as war crimes and crimes against humanity. Rape is not specifically defined, but the prepara-tory works held that the specified provisions were to be interpreted in the light of, and in accord-ance with the international obligation. The definition of rape as a war crime and as a crime against humanity is at the present unresolved. There are currently pending cases before the Inter-national Criminal Court expected to bring clarity as to how rape is defined in the light of the Rome Statute. During the late 1990´s and beginning of the 21st century, three definitions of rape were issued by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Current trends of international law seem to favour the non-consensual definition of rape held by the ICTY in the Kunarac case. The object and purpose of transforming the Rome Statute into chapter 16 of the NPC was to prosecute war crimes and crimes against humanity under Norwegian jurisdiction. Failure to revise or expand the definition of rape in the GCPC might prevent Norwegian Courts from convicting people accused of crimes against humanity and war crimes, contrary to the object and purpose of chapter 16 of the NPC. The situation with two different definitions of rape in Norwegian Criminal Statutes may be considered unsatisfactory. Even if there were no conceptual or systemic arguments decisively against maintaining this dual system, the International criminal solution may provide additional policy arguments in favour of redefining rape in the domestic Penal Code. The Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) confirms the international trend towards regarding lack of consent as the constituent element of rape. Case law, and reports from the ECtHR, Committee of CEDAW, ICTY, ICTR and ICC shows that these supranational organs refer to one another in deciding the common denominator of rape. The Constitution of Norway and the Supreme Court´s strict practice of the principle of legality limit the scope of the immediate affect of International Obligations in the realm of crimi-nal law, in favour of the accused. Fulfilment of the International Obligations of Norway is thus based on the consensus of the State. | eng |