RAPE AND SEXUAL VIOLENCE IN
INTERNATIONAL LAW: ICTR
CONTRIBUTION
ALEX OBOTE-ODORA*
INTRODUCTION
Rape and sexual violence are crimes that combatants and noncombatants have commonly committed throughout the history of warfare.
However, prosecutors have not traditionally prosecuted these crimes as war
crimes.1 During the 1994 Rwanda crisis, the Interahamwe,2 members of
the Rwanda Armed Forces [FAR], communal police, and the militia used
rape and sexual violence as weapons of war. Tutsi women and girls,
described as ‘accomplices’ of enemy combatants, were targeted, raped,
assaulted, and eventually killed. Rape and sexual violence were also
considered crimes against humanity, as Tutsi women and moderate Hutu
women were singled out, raped, sexually assaulted, and later killed. The
Interahamwe, members of the FAR, and the communal police also engage
in these practices to implement the policy of genocide. Tutsi women were
sexually assaulted with the specific intent to destroy their reproductive
competence, while other Tutsi women were raped and sexually assaulted
simply because they were Tutsi. The separation of Tutsi women from Hutu
*
1.
2.
LLD, LLM, (Stockholm University), LLB (Hons) (Makerere University); Advocate,
Special Assistant to the Prosecutor of the International Criminal Tribunal for Rwanda.
I thank Ms. Roberta Baldini, Assistant Trial Attorney and Ms. Kentaro Kanyomozi,
Case Manager, of the Cyangugu OTP Trial Team for the research they diligently
conducted in the preparation for this paper.
Kelly D. Askin, Prosecuting Wartime Rape and Other Gender-Related Crimes Under
International Law: Extraordinary Advances, Enduring Obstacles, 21 BERKELEY J.
INT’L L. 288 (2003).
The word Interahamwe is used to describe members of the youth wing of President
Habyarimana’s ruling party, the National Revolutionary Movement for Development
[NRMD]. During the 100 days of massive killings in Rwanda in the months of April,
May, June, and the first week of July 1994, the word Interahamwe was used to
describe all the armed Hutu youth regardless of political party affiliation.
135
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women before the commencement of rape, sexual assault, and murder of
the victims demonstrated the genocidal intent.
The 1994 Rwandan Genocide had devastating effects on the female
population of Rwanda - particularly Tutsi and moderate Hutu women and
girls - due to the systematic rape and sexual violence that the Rwanda
senior military and government officials planned, instigated, committed, or
otherwise aided and abetted. Nearly all female survivors, including very
young girls,3 became victims of the rape or sexual assault.4 These crimes
were pervasive and systematic during the Rwanda crisis.5 In addressing
these violations of international humanitarian law in Rwanda, the Office of
the Prosecutor [OTP] adopted a policy to prosecute rape and sexual
violence alongside other crimes stipulated in the Statute of the International
Criminal Tribunal for Rwanda [ICTR Statute].
In adopting said prosecution policy, the OTP ended the traditional
stance in international criminal law prosecutions of not indicting the crimes
of rape and sexual violence. The OTP has prosecuted, and continues to
prosecute, senior military and government officials for rape and sexual
violence alongside genocide, crimes against humanity, and war crimes.
The OTP indicts these persons for acts that they and their subordinates
committed.6 When the OTP indicts a person for the acts of his
subordinates, it is incumbent upon the prosecutor to establish that the
accused was in a position of authority, exercised effective control over the
subordinates, and knew or should have known what the subordinates did.
When contrasted with the Nuremberg and Tokyo trials, the International
Criminal Tribunal for Rwanda’s [ICTR] contribution to the prosecution of
rape and sexual violence stands up clearly for all to see, and hopefully,
appreciate.7
3.
4.
5.
6.
7.
See, e.g. Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, ¶¶ 416, 437 (Sept.
2, 1998).
HUMAN RIGHTS WATCH, SHATTERED LIVES: SEXUAL VIOLENCE DURING THE RWANDAN
GENOCIDE AND ITS AFTERMATH (1996) [hereinafter SHATTERED LIVES].
Comm’n on Hum. Rts., Sub-Comm. on Prevention of Discrimination & Prot. of
Minorities, Report on the Situation of Human Rights in Rwanda, ¶16, U.N. Doc.
E/CN.4/1996/68 (Jan. 29, 1996) (submitted by Rene Degni-Segui, Special Rapporteur
of the Comm’n on Human Rts.) [hereinafter Human Rights Report].
See Office of the Prosecutor Practice Notes 3, ¶ 5 (on pleading criminal responsibility
by direct participation) (internal ICTR OTP document) [hereinafter Practice Notes];
id. at ¶ 7 (on pleading joint criminal responsibility). Both modes of responsibilities
are premised on the Statute of the International Criminal Tribunal for Rwanda, 1994,
art. (6)(1) [hereinafter ICTR Statute], and Practice Notes, supra, at ¶ 6 (on pleading
superior/command criminal responsibility, premised on ICTR Statute, supra, at art.
6(3)).
Kelly D. Askin, Developments in International Criminal Law: Sexual Violence in
Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status,
2005]
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The very first conviction for rape and sexual violence by the ICTR
was Prosecutor v. Akayesu.8 Jean Paul Akayesu was the bougmester
(mayor) of Taba commune. He instigated, ordered, and otherwise aided
and abetted in acts of rape and sexual violence that were committed against
Tutsi women and girls in and around the Taba Commune in the Kigali
Prefecture in Rwanda.9 Akayesu made history by becoming the first
person convicted by an international court for rape and sexual violence that
constituted genocide under the 1948 Genocide Convention. Legal scholars
concur that in the Akayesu judgment the ICTR took the first step in
breaking down the international legal community’s ambivalence toward
rape and sexual violence as crimes under international law.10 The ICTR
became the first international tribunal to indict, prosecute, and convict an
official for genocide, and to hold that rape itself could constitute
genocide.11 The ICTR also defined rape under international law.12 This
8.
9.
10.
11.
93 AM. J. INT’L L. 97, 99 (1999) (Discussion contrasts Nuremberg and Tokyo
Tribunals, “which largely ignored gender-based crimes,” with the ICTR and the ICTY
which have “surmounted reluctance and other obstacles to address these crimes
despite their sexually graphic nature and traditional insensitivities to women’s rights
and needs.”)
Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, (Sept. 2, 1998).
Prosecutor v. Akayesu, Case No. ICTR 96-4-I, Amended Indictment, ¶¶ 12A-12B
(Jan. 1, 1996).
Stephanie K. Wood, A Woman Scorned for the “Least Condemned” War Crime:
Precedent and Problems with Prosecuting Rape as a Serious War Crime in the
International Criminal Tribunal for Rwanda, 13 COLUM. J. GENDER & L. 274, 276
(2004).
See Akayesu, ICTR 96-4-T, Judgment at ¶¶ 706-07. The Trial Chamber stated that:
With regard, particularly, to the acts described in paragraph 12(A) and
12(B) of the Indictment, that is, rape and sexual violence, the Chamber
wishes to underscore the fact that in its opinion, they constitute genocide
in the same way as any other act as long as they were committed with
the specific intent to destroy, in whole or in part, a particular group,
targeted as such. Indeed, rape and sexual violence certainly constitute
infliction of a serious bodily and mental harm on the victim and are
even, according to the Chamber, one of the worst ways to inflict harm
on the victim as he or she suffers both bodily and mental harm. In light
of all the evidence before it, the Chamber is satisfied that the acts of
rape and sexual violence described above, were committed solely
against Tutsi women, many of whom were subjected to the worst public
humiliation, mutilated and raped several times, often in public, in the
Bureau Communal premises or in other public places, and often by more
than one assailant. These rapes resulted in physical and psychological
destruction of Tutsi women, their families and their communities.
Sexual violence was an integral part of the process of destruction,
specifically targeting Tutsi women and specifically contributing to their
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judgment added significantly to the development of international criminal
law and active participation in the investigation process by female
investigators. The OTP now has a Rape and Sexual Violence Section
which boasts an extensive database and is headed by a female lawyerinvestigator.
The OTP’s current record for the prosecution of rape and sexually
violent related crimes is as follows: They have prosecuted (1) four of the
twenty-three accused in completed cases,13 (2) nineteen of the twenty-five
accused currently on trial,14 and (3) eight of the twenty-seven accused
awaiting trial.15
The OTP faces the continuing challenges of performing adequate
investigations to support the charges and the reluctance of witnesses to give
statements to investigators or to come to testify before the ICTR in Arusha.
Further, the slow pace at which the cases come to trial also inhibits the
progress made by the Akayesu case law. Consequently, some scholars and
human rights activists view the progress made by the ICTR, since the
Nuremberg and Tokyo trials, as a glass half-empty rather than half-full.
The OTP recognizes that more must be done - particularly with respect to
persuading witnesses to come forward to testify - and the ICTR’s
corresponding obligation to provide adequate protection and support to
destruction and the destruction of the Tutsi group as a whole.
12.
13.
14.
15.
Id. at ¶ 731.
Id. at ¶ 598.
See id.; Prosecutor v Musema, Case No. ICTR 96-13-A, Judgment & Sentence (Jan.
27, 2000); Prosecutor v Semanza, Case No. ICTR 97-20-T, Judgment & Sentence
(May 15, 2003); Prosecutor v. Gacumbitsi, Case No. ICTR 01-64-T, Judgment (June
17, 2004).
Prosecutor v Bagasora, Case No. ICTR 96-7 (involving four accused: Bagasora,
Nsengiyumva, Ntabakuze and Kabiligi); Prosecutor v Nyaramasuhuko, Case No.
ICTR 97-21 (involving six accused, including Nyaramasuhuko and her son Ntahobali,
who were charged with rape); Prosecutor v Ndindiliyimana, Case No. ICTR 200-56
(involving four accused: Ndindiliyimana, Bizimungu, Nzuwonemeye and Sagahutu);
Prosecutor v Bizimungu, Case No. ICTR 99-45 (involving four accused: Bizimungu,
Mugenzi, Bicamumpaka and Mugiraneza. At the end of the Prosecution’s case, all
four were acquitted of the count of rape pursuant to Rule 98 bis of the ICTR Rules of
Procedure and Evidence. The trial is now in the Defense phase with respect to the
other counts other than rape.); Prosecutor v Simba, Case No. ICTR 01-76 (Judgment
was delivered on December 13, 2005 - the accused was convicted); Prosecutor v
Gatete, Case No. ICTR 2000-61; Prosecutor v. Muvunyi, Case No.ICTR-00-55. The
numbers of accused convicted, in trial or awaiting trial as changed since I presented
the paper, and the numbers will continue to change as ICTR Trial Chambers delivers
decisions and judgments. At any given time, a fairly accurate figures can be obtained
at: ICTR, Status of Cases, http://www.ictr.org.
See ICTR, Status of Cases, http://www.ictr.org (for an updated list of pending cases).
2005]
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witnesses before, during, and after testifying in court. Thus, the OTP
strives to maintain the ICTR’s legitimacy, to protect women’s human
rights, and to build on the jurisprudence classifying rape as a weapon of
war and genocide, as advocated by legal scholars.16
The OTP recognizes that rape and sexual violence are serious crimes,
and that prosecuting these crimes is only the first step toward the creation
of an international legal system to deter future impunity. It is in this
context that this paper assesses the past performance of the ICTR and its
need to improve the effectiveness of future prosecutions of rape as a
weapon of war. I concur with Elisabeth Rehn and Ellen Johnson Sirleaf
that: “It is critical as the bodies of women of all ages, races, religions, and
ethnicities continue to be used as envelopes to send messages to the
perceived enemy. The harm, silence and shame women experience in war
is pervasive, but their redress is almost non-existent.”17 The OTP must set
the trend for establishing jurisprudence that provides redress to victims and
survivors.
This paper acknowledges the significant advancements in
international criminal law in the prosecution of rape and sexual violence as
crimes against humanity and as modes of committing genocide. It also
presents a brief survey of the ICTR’s case law in order to review the
problems encountered by the OTP in investigating, indicting and
prosecuting rape and sexual violence cases. The purpose of this review is
to provide lessons for future prosecutions under international law. The
paper begins by providing a brief historical background of the Rwanda
Crisis and the period thereafter. It will survey ICTR and ICTY
[International Criminal Tribunal of Yugoslavia] jurisprudence, including
Appeals Chamber decisions that have impacted the ICTR’s application of
the law, and the challenges faced by the OTP.
I.
RAPE AND SEXUAL VIOLENCE DURING THE 1994 RWANDA CRISIS
During three months in 1994, from April to July, over 800,000
Rwandan men, women, and children were killed. Tensions exploded when
President Habyarimana’s plane was shot down over Kigali, Rwanda, on
April 6, 1994. In retaliation, the FAR and the Interahamwe immediately
set up roadblocks and began house-to-house searches to find and kill Tutsis
16.
17.
See Wood, supra note 10, at 278.
ELISABETH REHN & ELLEN JOHNSON SIRLEAF, WOMEN, WAR AND PEACE: THE
INDEPENDENT EXPERTS’ ASSESSMENT OF THE IMPACT OF ARMED CONFLICT ON WOMEN
AND WOMEN’S ROLE IN PEACE-BUILDING 149 (United Nations Development Fund for
Women, 2002), available at http://www.unifem.org/index.php (last visited Jan. 7,
2006).
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and moderate Hutus. During the wholesale slaughter, they perpetrated
widespread sexual violence against Tutsi, and some Hutu women and girls.
This sexual violence included rape, mutilation and humiliation. Rwandan
senior military and government officials sanctioned and encouraged these
crimes.18
In the face of existing international norms governing warfare and
prohibiting violence against women and civilians, the Rwandan Crisis had
devastating consequences for women.19 The “Hutu power” propaganda
machine proliferated ethnic and gender stereotypes well before the 1994
genocide.20 The Hutu Ten Commandments, published in Kangura,21 the
“Hutu Power” propaganda magazine, described Tutsi women as
“condescending seductresses inaccessible to Hutu men.”22 Tutsi women
were also depicted as spies who would undermine and dominate Hutu
men.23 When women of any group are identified as “sexual temptresses”
they become, by definition, sexual objects. Therefore, retaliatory acts
against women of the targeted group are often sexual in nature with no
legal redress.24 The depiction of Tutsi women through the propaganda
significantly contributed to the attitudes toward Tutsi women - that they
were objects to be dominated, humiliated, dehumanized, and destroyed.25
One cannot equate the death toll with the number of women who were
victims of rape and sexual violence. Sex-based crimes are not easily
identifiable, like gunshot wounds or amputated limbs. This is because
these crimes inflict physical and psychological wounds, which women can
conceal to avoid further emotional anguish, ostracization, and retaliation
from perpetrators who may live nearby. Reports estimating the number of
women who were raped, which was determined by examining the number
of pregnancies that coincided with the three months of the genocide,
18.
19.
20.
21.
22.
23.
24.
25.
Prosecutor vs. Akayesu, Case No. ICTR 96-4-T, Judgment, ¶¶ 692-94 (Sept. 2, 1998).
See also Askin, supra note 1, at 320; SHATTERED LIVES supra note 4.
ALISION DES FORGES, HUMAN RIGHTS WATCH, LEAVE NONE TO TELL THE STORY:
GENOCIDE IN RWANDA (1999); Wood, supra note 10, at 274-75.
Liezlie L. Green, Gender Hate Propaganda and Sexual Violence in the Rwandan
Genocide: An Argument for Intersectionality in International Law, 33 COLUM. HUM.
RTS. L. REV. 733, 746-50 (2002). (Propaganda dispersed by the Hutu Power
organizations, such as Kangura, contributed to gender-specific hate toward Tutsi
women).
Hutu Ten Comandments, 6 KANGURA (Rwanda), 1990, at 3-4.
Wood, supra note 10, at 284.
A TIME TO REMEMBER, RWANDA: TEN YEARS AFTER THE GENOCIDE 21 (James M.
Smith ed., 2004) [hereinafter A TIME TO REMEMBER, RWANDA].
Wood, supra note 10, at 284-85.
See generally Green, supra note 20.
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indicate that “rape was the rule and its absence the exception.”26 These
statistical projections yield a number ranging from 250,000 to 500,000
women raped.27 However, these numbers do not account for the women
whose injuries prevented them from conceiving a child, or the number of
women who experienced multiple rapes and gang rapes.28 Nor do the
numbers account for unmarried women who either self-aborted29 or
committed infanticide;30 who were mutilated by having breasts cut off or
having farm implements brutally inserted into their genitals;31 or who were
murdered after they were raped.32 Many of the rape victims believe they no
longer have value as a result of the rape. The survivors refer to rape as a
“living death” and view it as worse than death.33 Lastly, many of the
victims now suffer from HIV/AIDS.34
II.
THE LEGAL FRAMEWORK
History has shown that there have been general rules of war
regulating the conduct of belligerents on the one hand, and the protection of
the civilian populations on the other. Rules of engagement existed as far
back as 500 B.C. These rules were in place to protect combatants and noncombatants during armed conflicts - particularly women and children.35
However, it was not until 1474 that an international tribunal prosecuted a
combatant for violations of the laws of war.36 Over the centuries, political
and military leaders who violated the laws and customs of war were
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
Human Rights Report, supra note 5; see also SHATTERED LIVES, supra note 4.
Rhonda Copelon, Surfacing Gender: Reengraving Crimes Against Women in
Humanitarian Law, in WOMEN AND WAR IN THE TWENTIETH CENTURY: ENLISTED
WITH OR WITHOUT CONSENT, at 33 (Nicole A. Dombrowski ed., 1999) (Rwandan
National Population Office confirmed that between 2,000 and 5,000 became pregnant
as the result of being raped, noting however, that not all rapes resulted in a full-term
pregnancy.).
See, e.g., SHATTERED LIVES, supra note 4.
See, e.g., id.
See, e.g., id.
See, e.g., id.
Id.
Id.
A TIME TO REMEMBER, RWANDA, supra note 23; SHATTERED LIVES, supra note 4.
Wilbourn E. Benton, Introduction, to NUREMBERG, GERMAN VIEWS OF THE
WAR TRIALS 2 (Benton & Grimm eds. 1955).
M. Cherif Bassiouni, The Time Has Come for an International Court, 1 IND. INT’L
& COMP. L. REV. 1, 1 (1991). The trial of Peter van Hagenbach was the first
international criminal trial, taking place 471 years before Nuremberg. The trial was
held in Breisach, Germany, with twenty-seven judges of the Holy Roman Empire
presiding. Id.
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prosecuted, giving rise to the progressive development of the rules
governing warfare, and prosecution of violators of those rules.37
International Humanitarian Law [IHL] evolved from those earlier
practices, in order to lessen the horrors suffered by both combatants and
non-combatants during armed conflict. The prevailing principle of such
humanitarian law is that civilians should never be targeted for attack, and
care must be taken to spare them from harm to the greatest extent possible.
Another important principle is that all non-combatants must be treated
humanely. This principle has tended to ignore the violent, hate-filled
atmosphere of war.38
Perpetrators who commit, or fail to prevent or punish, serious
violations of IHL face individual and superior criminal liability. These
actors may be military, civil or political leaders who fail to take measures
to prevent these crimes, to stop them once they have commenced, or to
punish those responsible for these crimes after the fact.39 Many such
violations carry with them individual criminal responsibility, whether or
not the perpetrator is a party to the 1949 Geneva Conventions and its two
Additional Protocols of 1977.40
The international law treaties governing armed conflicts in modern
times are the Hague Convention of 1907 and the four Geneva
Conventions,41 together with the annexes to the Conventions and the two
37.
38.
39.
40.
41.
KELLY D. ASKIN, WAR CRIMES AGAINST WOMEN: PROSECUTION IN
INTERNATIONAL WAR CRIMES TRIBUNALS (1997).
See Askin, supra note 1, at 288.
E.g. ICTR Statute, supra note 6, at art. 6(3).
Article 3 common to the four Geneva Conventions of 1949 reads as follows: “. . .In
the case of armed conflict not of an international character occurring in the territory of
one of the High Contracting Parties, each Party to the conflict shall be bound to apply,
as a minimum, the following provisions. . .” See, e.g., Geneva Convention Relative to
the Treatment of Civilian Persons in Times of War, art. 3, Aug. 12, 1949, 6 U.S.T.
3516, 75 U.N.T.S. 287. The rebel RPF and the FAR were parties to the conflict
pursuant to Article 3 common to the four 1949 Geneva Conventions.
Geneva Convention (I) for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75U.N.T.S. 31
[Hereinafter First Geneva Convention]; Geneva Convention (II) for the Amelioration
of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75U.N.T.S., 85 [Hereinafter Second Geneva
Convention]; Geneva Convention (III) Relative to the Treatment of Prisoners of War,
Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S., 135 [Hereinafter Third Geneva
Convention]; Geneva Convention (IV) Relative to the Protection of Civilian Persons
in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S., 287 [Hereinafter Fourth
Geneva Convention]. The 1949 Geneva Conventions supersedes the 1864, 1906, and
1929 Geneva Conventions.
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1997 Additional Protocols to the Geneva Conventions.42 Of these
Protocols, Protocol I addresses crimes that arise during international
conflicts, and Protocol II addresses non-international armed conflicts. Both
additional Protocols expressly prohibit rape and forced prostitution.43
Article 27 of the Fourth Geneva Convention states that: “[w]omen
shall be especially protected against any attack on their honour, in
particular against rape, enforced prostitution, or any form of indecent
assault.”44 Article 76(1) of Protocol I states: “[w]omen shall be the object
of special respect and shall be protected in particular against rape, enforced
prostitution, and any other form of indecent assault.”45 While the
Conventions include rape and enforced prostitution, they equate these
crimes with crimes of honor and dignity rather than with crimes of
violence.46 Thus, they conceal the nature of the crime and perpetuate
detrimental stereotypes.47
After World War II, the victors of the war established ad hoc
tribunals. The International Military Tribunal [IMT] held trials in
Nuremberg and Tokyo. The Nuremberg Trials prosecuted the German
defendants and the Tokyo Trials prosecuted the Japanese defendants.
These trials largely ignored sexual violence, although there was credible
evidence of widespread and systematic rape and sexual violence in Europe
and Asia during the Second World War.48
42.
43.
44.
45.
46.
47.
48.
Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977,
1125 UNTS. 3, 16 ILM 1331 (entered into force 7 Dec. 1978) [Hereinafter Protocol
I]; Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to
the Protection Victims of Non-International Armed Conflicts (Protocol II), 8 June
1977, S. Treaty Docs. No.100-2, 1125 UNTS. 609 (entered into force 7 Dec. 1978)
[Hereinafter Protocol II].
Article 75(2)(b) of Additional Protocol I prohibits: “Outrages upon personal dignity,
in particular humiliating and degrading treatment, enforced prostitution and any form
of indecent assault.” The provision does not expressly mention rape. However,
Article 4(e) of Additional Protocol II prohibits rape. The article prohibits: “Outrages
upon personal dignity, in particular, humiliating and degrading treatment, rape,
enforced prostitution and any form of indecent assault.”
Fourth Geneva Convention, supra note 41, at art. 27.
Protocol I, supra note 42, at art. 76(1).
Askin, supra note 1, at 304.
Id.
War crimes trials that included references to rape in the context of war crimes were
conducted. However, in these trials rape was not recognized as an independent crime.
Rather, acts of rape were viewed by the belligerents as spoils of war - not as crimes
under national or international law. See e.g., IRIS CHANG, THE RAPE OF NANKING
169-80 (1977).
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A. International Criminal Tribunal for Rwanda
The United Nations Security Council [U.N. Security Council]
established the ICTR in 1994 with the mandate to prosecute crimes arising
from the Rwanda crisis.49 The ICTR Statute provides for the prosecution
of rape and sexual violence alongside genocide, crimes against humanity,
and war crimes. In 1993 the U.N. Security Council had already established
the ICTY to prosecute crimes committed in the former Yugoslavia.50 The
progress made by the ICTR and ICTY in prosecuting various forms of sexbased crime is revolutionary in history and provides legal precedents for
punishing these crimes in future conflicts.51
However, the development and application of international criminal
law still has wide gaps, especially in the area of prosecution of rape and
sexual violence. Therefore, while the concept of international criminal law
and its impact on international criminal prosecution has a long history, its
practice is still in its infancy. The international legal community has much
to learn regarding legal procedure, commencing with investigation by
persons who appreciate the elements of the crimes they are investigating,
evaluation of the evidence gathered, and drafting and confirmation of the
indictment.
The post-confirmation process is sometimes long and tedious. For
example, once the indictment is confirmed the defense may file a series of
motions under Rule 72 challenging defects in indictments. The defense
may continue to file motions for a number of reasons after the accused has
made his first appearance before a trial chamber.
In all these
circumstances, the prosecutor must respond to these motions. While some
of the motions raise substantial legal issues, others are vexatious and
frivolous. The prosecution will also file a number of motions, for example,
to protect witnesses or to seek orders from a trial chamber for a witness to
testify via a video link at trial.
At trial the prosecution is sometimes faced with the fact that some of
the key witnesses have died, cannot be traced, or are unwilling or unable to
testify for the prosecution. The reasons for not testifying are many and
varied. Some witnesses refuse to testify because they have been
threatened.
At least two witnesses have died under suspicious
circumstances after testifying. Other witnesses see no point in regularly
travelling to Arusha to testify in different cases, particularly as they may be
required to stay in Arusha for several weeks and consequently lose their
jobs, or crops if they are farmers. The common saying among Rwandan
farmers is: “[t]he rain does not wait for you when you go to Arusha.” The
49.
50.
51.
Askin, supra note 1, at 305-06.
Id. at 305.
Id. at 317.
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farmers are not prepared to miss the planting season, because they receive
no compensation for testifying. Still, other witnesses opt to participate only
in the Gacaca proceedings and pursue reconciliation.
On the other hand, some witnesses have given up on international
criminal justice. The witnesses see no point in participating further,
particularly because they view the accused as enjoying a much higher
standard of life at the United Nations Detention Facility [UNDF] in
Arusha, compared to the miserable conditions of victims and witnesses in
Rwanda. The accused persons now detained at the UNDF have spacious
rooms with television sets, access to computers, regular meals, clean
clothes, exercise facilities and free medical services. Victims and
witnesses do not have comparable facilities and benefits.52 This is evident
when one compares the physical appearance and conditions of prosecution
witnesses to those of the accused persons in the courtroom during trial
52.
Under the ICTR Statute, only the Trial Chambers are specifically empowered under
Article 19(1) to ensure that a trial is fair and expeditious and conducted with ‘full
respect for the rights of the accused and due regard for the protection of victims and
witnesses.’ Article 21 simply allows the Rules of Procedure and Evidence to operate
as a vehicle for the protection of victims and witnesses. The basis for the Victims and
Witnesses Support Unit is Rule 34 of the Rules of Procedure and Evidence, which
provides for the establishment of the unit under the authority of the Registrar. This
Rule clearly provides for the adoption of protective measures for victims and
witnesses to ensure that they receive relevant physical and psychological
rehabilitation - particularly in the cases of victims of rape and sexual assault. While
subparagraph A (iii) of Rule 34 clearly provides for the development of short and
long-term plans for the protection of witnesses who have testified before the Tribunal,
no clear stipulation is provided under the Rule for potential witnesses, or witnesses
from whom statements have been received but who have yet to be short listed to
testify at a trial. However, Rule 39 (ii) then stipulates that the Prosecutor, in the
context of an interview, may “take all measures deemed necessary for the purpose of
the investigation and to support the prosecution at trial, including the taking of special
measures to provide for the safety of potential witnesses and informants.” The
position of the Registry is that the Rule’s reference to the taking of ‘special measures’
suggests that these measures should be limited to exceptional circumstances and
should not be construed as a blanket provision for all potential witnesses, as some
have suggested. The position taken by the OTP is that as long as witness statements
are obtained in the course of investigations, then the individuals giving such
statements constitute potential witnesses which the Prosecution is thus empowered to
protect. The Trial Chambers routinely grant protective measures for witnesses,
including the use of pseudonyms, protective screens, image altering devices, closed
sessions and video link testimony. However, these measures have not protected
witnesses from the danger inherent in the disclosure of their identity by persons who
are responsible for assisting them during their stay in the safe houses in Arusha.
Significantly, there is no provision for direct financial assistance by the ICTR to the
victims and witnesses. On the other hand, accused persons are entitled to medical
support including other facilities enjoyed at the UNDF in Arusha-Tanzania.
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proceedings. Considering the inequality of treatment between the accused
persons and the victim-witnesses, the prosecution cannot be sure that any
witness will testify until they have actually done so in court. This is a
recurring problem the prosecutor faces. It is therefore not just an excuse
when the Prosecutor states that witnesses who had earlier made statements
to the OTP investigators are no longer willing or able to testify. Witnesses’
failure or reluctance to testify must be viewed in the context described
above.
B. The ICTR Jurisprudence
Since 1994 the ICTR has developed significant jurisprudence on
prosecution for rape and sexual violence. For example, the ICTR
judgments establish that rape and sexual violence were major components
of the Rwanda Crisis. In 1994 rape and sexual violence were committed as
part of a widespread and systematic attack against a targeted group: Tutsi
and moderate Hutu women and men. An example of such a case
adjudicated by the ICTR is Prosecutor v. Akayesu.
1. Prosecutor v. Akayesu
The watershed ICTR judgment is Prosecutor v. Akayesu.53 The Trial
Chamber delivered it on September 2, 1998. The Akayesu judgment held
that rape and other forms of sexual violence were used as a mechanism of
genocide and formed part of a widespread or systematic attack on the
targeted civilian group, comprising crimes against humanity. This was the
first case in history that rendered a conviction for either genocide or crimes
against humanity through sexual violence. The case is also groundbreaking for its seminal definitions of rape and sexual violence under
international law, and for recognizing forced nudity as a form of sexual
violence comprising inhumane acts as a crime against humanity.
In counts thirteen through fifteen of the Amended Indictment, Jean
Paul Akayesu, the bougermester of Taba commune, Rwanda, was charged
with rape and other inhumane acts as crimes against humanity and war
crimes.54 The counts of Genocide with which he was charged also alleged
53.
54.
Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment (Sept. 2, 1998).
Prosecutor v. Akayesu, Case No. ICTR 96-4-I, Indictment, counts 13-15 (Jan. 1,
1996) (Akayesu was not originally charged with any sexual crimes. It was only when
the Chamber heard spontaneous testimony about the gang rape of a six-year old girl
and testimony from other witnesses who testified about being raped or seeing others
being rape that Judge Pillay suggested that the OTP investigate. She suggested that if
evidence of such crimes were found, the Prosecutor should consider amending the
indictment).
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rape, which allowed the Trial Chamber to find Akayesu guilty of rape as a
mode of committing genocide.
Akayesu is the first case in international law that provides a definition
of rape. Prior to this case there was no internationally accepted definition.
Under Akayesu rape is defined as “a physical invasion of a sexual nature,
committed on a person under circumstances, which are coercive.”55 The
Chamber also considered the definition of sexual violence, which is
broader than that of rape. It defined sexual violence as “any act of a sexual
nature which is committed on a person under circumstances which are
coercive. Sexual violence is not limited to physical invasion of the human
body and may include acts which do not involve penetration or even
physical contact.”56 An example of sexual violence that does not involve
touching is forced nudity. The Chamber held that the amount of coercion
required does not need to amount to physical force, as “threats,
intimidation, extortion and other forms of duress which prey on fear or
desperation may constitute coercion.”57 The judgment also emphasized
that coercion may be inherent in armed conflicts or when the military or
militias are present.58
While national jurisdictions have defined rape as “non-consensual
sexual intercourse,” the Trial Chamber found that a broader definition is
required to include “acts which involve the insertion of objects and/or the
use of bodily orifices not considered to be intrinsically sexual.”59 The
Chamber heard testimony regarding this, and subsequently held that,
“thrusting a piece of wood into the sexual organs of a women as she lay
dying - constitutes rape in the Tribunal’s view.”60
The Trial Chamber noted that sexual violence is “within the scope of
‘other inhumane acts’ as crimes against humanity, ‘outrages upon the
personal dignity’ of the war crime provisions of the Statute, and ‘serious
bodily or mental harm’ of the genocide prescriptions.”61 While rape was
not charged as torture in the amended indictment, the Trial Chamber
compared the act of rape to torture, stating that rape is “a form of
aggression” and that the elements of the crime “cannot be captured in a
mechanical description of objects and body parts.”62 The Chamber
55.
56.
57.
58.
59.
60.
61.
62.
Akayesu, ICTR 96-4-T, Judgment at ¶ 688.
Id.
Id. It is noteworthy that the ICTY adopted the Akayesu definition in Prosecutor v.
Delalic. See Prosecutor v. Delalic, Case No. IT-96-21-T, Judgment, ¶¶ 478-79 (Nov.
16, 1998).
Id.
Akayesu, ICTR 96-4-T, Judgment at ¶ 686.
Id.
Askin, supra note 1, at 319.
Akayesu, ICTR 96-4-T, Judgment at ¶ 687.
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recognized that, “[l]ike torture, rape is used for such purposes as
intimidation, degradation, humiliation, discrimination, punishment, and
control or destruction of a person. Like torture rape is a violation of
personal dignity and rape in fact constitutes torture” when all of the
elements of torture are met.63
63.
Id. The last element, requiring a State actor or policy, is pertinent when applying
international humanitarian law or international criminal law, verses human rights law,
and was rejected by the ICTY in Prosecutor v. Kunarac. See Case No. IT-96-23,
Judgement, ¶¶ 468-72 (Feb. 22, 2001). In Kunarac the Trial Chamber opined:
In attempting to define an offence under international humanitarian law,
the Trial Chamber must be mindful of the specificity of this body of
law. In particular, when referring to definitions which have been given
in the context of human rights law, the Trial Chamber will have to
consider two crucial structural differences between these two bodies of
law:
(i) Firstly, the role and position of the state as an actor is completely
different in both regimes. Human rights law is essentially born out of
the abuses of the state over its citizens and out of the need to protect the
latter from state-organised or state-sponsored violence. Humanitarian
law aims at placing restraints on the conduct of warfare so as to
diminish its effects on the victims of the hostilities . [sic]
In the human rights context, the state is the ultimate guarantor of the
rights protected and has both duties and a responsibility for the
observance of those rights. In the event that the state violates those
rights or fails in its responsibility to protect the rights, it can be called to
account and asked to take appropriate measures to put an end to the
infringements.
In the field of international humanitarian law, and in particular in the
context of international prosecutions, the role of the state is, when it
comes to accountability , [sic]
peripheral. Individual criminal
responsibility for violation of international humanitarian law does not
depend on the participation of the state and, conversely , [sic] its
participation in the commission of the offence is no defence to the
perpetrator. Moreover, international humanitarian law purports to apply
equally to and expressly bind all parties to the armed conflict whereas,
in contrast, human rights law generally applies to only one party,
namely thestate [sic] involved, and its agents.
This distinction can be illustrated by two recent American decisions of
the Court of Appeals for the Second Circuit rendered under the Alien
Torts Claims Act. The Act gives jurisdiction to American district courts
for any civil action by an alien for a tort committed in violation of the
law of nations or a treaty of the United States. In the first decision, In re
Filártiga, the Court of Appeals of the Second Circuit held that
“deliberate torture perpetrated under colour of official authority violates
universally accepted norms of the international law of human rights,
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There is no doubt that the Akayesu judgment recognized that sexual
violence causes great damage, and is used deliberately during conflicts or
wars to control and devastate the enemy. In the Rwandan context, it was
used to inflict great harm and to send a message to Tutsis and their
supporters. The judgment unambiguously recognized that in the genocidal
campaign carried out by the Hutus, rape was perpetrated as “an integral
part of the process of destruction.”64 The judgment makes clear that rape is
only one step on the road to the destruction of a targeted group - in this
case, the Tutsi population.65 Rape destroys the spirit and the will to live,
causing pain beyond the act of rape itself.66
The case against Jean Paul Akayesu does not allege that he physically
engaged in raping the women of Taba Commune, but that he ordered,
instigated or otherwise facilitated rape, forced public nudity and sexual
mutilation. These were the acts for which he would be held individually
accountable.
Akayesu facilitated these crimes by his words of
encouragement, his presence, and his failure to prevent, stop or punish his
regardless of the nationality of the parties”. This decision was only
concerned with the situation of an individual vis-à-vis a state, either his
national state or a foreign state. In a later decision in Kadic v Karadžic,
the same court made it clear that the body of law which it applied in the
Filártiga case was customary international law of human rights and that,
according to the Court of Appeals, in the human rights context torture is
proscribed by international law only when committed by state officials
or under the colour of the law. The court added, however, that atrocities
including torture are actionable under the Alien Tort Claims Act
regardless of state participation to the extent that the criminal acts were
committed in pursuit of genocide or war crimes.
(ii) Secondly, that part of international criminal law applied by the
Tribunal is a penal law regime. It sets one party, the prosecutor, against
another, the defendant. In the field of international human rights, the
respondent is the state. Structurally , [sic] this has been expressed by the
fact that human rights law establishes lists of protected rights whereas
international criminal law establishes lists of offences . [sic]
The Trial Chamber is therefore wary not to embrace too quickly and too
easily concepts and notions developed in a different legal context. The
Trial Chamber is of the view that notions developed in the field of
human rights can be transposed in international humanitarian law only if
they take into consideration the specificities of the latter body of law.
The Trial Chamber now turns more specifically to the definition of the
crime of torture.
64.
65.
66.
Id. at ¶ 470.
Akayesu, ICTR 96-4-T, Judgment, at¶ 731; Askin, supra note 1, at 320.
Id. at ¶ 732.
Id.
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subordinates during or before the acts were committed.67 The Trial
Chamber found Akayesu criminally responsible for several crimes,
including sexual violence committed against Tutsi women and girls of
Taba Commune and the surrounding area.68 The Chamber held that, “by
virtue of his authority,” the Accused’s failure to prevent or stop the actions
committed against the Tutsi of Taba Commune and Akayesu’s
encouragement of these actions, “sent a clear signal of official tolerance.”69
Akayesu was therefore convicted of individual responsibility under ICTR
Article 6(1) for rape and sexual violence.70
The Akayesu case is also important because the Trial Chamber held
that the accused was guilty of sexual crimes committed within the context
of genocide. It found that sexual crimes “constitute[d] genocide in the
same way as any other act as long as they were committed with the specific
intent to destroy, in whole or in part, a particular group, targeted as such.”71
The Chamber determined that rape was used as an instrument of genocide
in Taba Commune; therefore, Akayesu’s acts and omissions made him
individually responsible for such crimes.72 The Chamber recognized that
rape is often a prelude to death. Women were sometimes allowed to live
because rape is considered worse than death.73
The Trial Chamber convicted Jean Paul Akayesu of genocide and
crimes against humanity; namely extermination, murder, rape, torture, and
other inhumane acts. Akayesu was sentenced to life imprisonment.74 The
Appeals Chamber affirmed the Trial Chamber’s judgment.75
While the ICTR was developing progressive case law in the area of
sex-based violence, there was contemporaneously another line of cases
developing at the ICTY that has taken a different, less progressive view of
sex-based violence.
In Prosecutor v. Furundzija, the ICTY Trial Chamber reviewed the
ICTR definition of rape and concluded that a more narrow definition, based
on a survey of national legislation, should be applied. The Chamber held
that the following elements defined rape:
(i) the sexual penetration, however slight:
67.
68.
69.
70.
71.
72.
73.
74.
75.
Id. at ¶¶ 692-94.
Askin, supra note 1, at 320.
Id.
Id.
Akayesu, ICTR 96-4-T, Judgment at ¶ 731.
Askin, supra note 1, at 320.
SHATTERED LIVES supra note 4.
Prosecutor v.Akayesu, Case No. ICTR 96-4-T, Sentence (Oct. 2, 1998).
Prosecutor v. Akayesu, Case No. ICTR 96-4-A, Judgment, ¶¶ 423-24 (June 1, 2001).
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(a) of the vagina or anus of the victim by the penis of the
perpetrator or any other object used by the perpetrator; or
(b) of the mouth of the victim by the penis of the perpetrator;
(ii) by coercion or force or threat of force against the victim or a
third person.76
The judgments in the Furundzija and Akayesu cases created two legal
definitions of rape. Akayesu provided a broader definition that takes into
consideration the experiences that many victims suffer during an armed
conflict. Additionally, the ICTR definition under Akayesu is broader than
the common law in defining force or coercion. Akayesu considers the
reality of wartime violence. The Trial Chamber’s use of the word
‘invasion’ in Akayesu, rather than ‘penetration’ used by the Trial Chamber
in Furundzija, embraces the victim’s view of the crime. Adopting
‘invasion’ shifts the focus to the harm that the assailant causes the victim.
The other three completed ICTR cases in which the accused were
charged and convicted of sex-based crimes involved Alfred Musema,77
director of the Gisovu Tea Factory; Laurent Semanza,78 former
Bourgmestre of Bicumbi Commune; and Slyvestre Gacumbitsi,79
Bourgmestre of Rusumo Commune.
2. Prosecutor v. Musema
The prosecutor charged Alfred Musema with rape pursuant to Article
3(g), and other inhumane acts pursuant to Article 3(i), of the ICTR Statute.
The indictment alleged individual and superior criminal responsibility
under Articles 6(1) and 6(3), respectively. Musema was alleged to have
committed and ordered the rape of Tutsi women in the Bisesesero area.
The Trial Chamber used the Akayesu definitions of rape and sexual
violence80 and found Musema individually criminally liable for rape as a
crime against humanity and rape as a mode of committing genocide. On
appeal, relying on Kuprskic’s use of additional evidence pursuant to Rule
115 of the Rules of Procedure and Evidence, the conviction was quashed.81
76.
77.
78.
79.
80.
81.
Prosecutor v. Furundzija, Case No. IT-95-17/1, Judgment, ¶ 185 (Dec. 19, 1998).
This was the first decision by a UN Tribunal convicting an accused of rape as a war
crime.
Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgment & Sentence (Jan. 27,
2000).
Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment & Sentence (May 15,
2003).
Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-T, Judgment (June 17, 2004).
Musema, ICTR 96-13-T, Judgment at ¶ 965.
Id. at ¶ 194.
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Although the conviction was reversed on a factual issue the Appeals
Chamber did not disturb the Akayesu test used by the Trial Chamber.
3. Prosecutor v. Kunarac
To many legal scholars, the Prosecutor v. Kunarac judgment was a
step backward from the Akayesu threshold. In Kunarac82 the ICTY
Appeals Chamber adopted the mechanical Furundzija test and required the
Prosecution to prove that the victim did not consent to rape or sexual
violence. The Kunarac Appeals Chamber found that non-consensual
penetration can be divided into three categories:
(i) the sexual activity is accompanied by force or threat to the
victim or third party;
(ii) the sexual activity is accompanied by force or a variety of
other specified circumstances which made the victim particularly
vulnerable or negated her ability to make an informed refusal; or
(iii) the sexual activity occurs without the consent of the
victim.83
4. Prosecutor v. Semanza84
The prosecutor charged Laurent Semanza with instigating, ordering
and encouraging the militia to rape Tutsi women in Bicumbi and Gikoro
Communes. The Prosecutor alleged that Semanza was responsible under
Articles 6(1) and 6(3) of the ICTR Statute for violating the life, health,
physical and mental well-being, and causing cruel treatment such as rape
and torture, pursuant to Article 4(a) of the ICTR Statute. Semanza was also
indicted for rape and for causing outrages upon personal dignity of women
pursuant to Article 3(g) of the ICTR Statute.
The Chamber acquitted the Accused of rape in Count 8, not because
of a lack of evidence, but on the grounds that the Prosecutor provided
inadequate notice to the accused of the charges against him. Therefore, the
Chamber found Semanza not guilty as charged pursuant to Article 3(g).
The Chamber observed that the OTP did not prove that Semanza was
responsible for any rapes other than those charged in Count 10 of the
82.
83.
84.
Prosecutor v. Kunarac, Case No. IT-96-23 & IT-96-23/I-A, Judgment (June 12,
2002).
Id. at ¶ 442.
Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment & Sentence (May 15,
2003).
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indictment, and it convicted him accordingly.85
The problem with the Semanza judgment is the fact that the Trial
Chamber expressly rejected the more progressive Akayesu definition and
adopted the restrictive Kunarac legal definition.86 However, the Trial
Chamber did find that Semanza facilitated the rape of Victim A by
instigating the assailants with his words and presence, and as such was a
principal perpetrator of rape as charged in Count 10 of the indictment.87
The Trial Chamber did find that Semanza instigated both rape and
torture as crimes against humanity on the basis of the same facts. The
Chamber considered the elements of rape and torture as crimes against
humanity. The ICTY Appeals Chamber in Kunarac found that convictions
permissible for both crimes on the basis of the same factual evidence
“because rape and torture each contain one materially distinct element not
contained in the other; rape requires sexual penetration, while torture
requires that harm be inflicted for a prohibited purpose.”88 The Chamber
found Semanza guilty of rape and torture in order to present the “complete
picture” of Semanza’s criminal conduct.89
The Semanza Appeals Chamber heard oral arguments in December
2004. The charge of rape as a crime against humanity was not a subject
raised in the Appeal. A decision is expected in the near future.
5. Prosecutor v. Gacumbitsi
Sylvestre Gacumbitsi was indicted, among other charges, with rape as
a crime against humanity pursuant to Article 3(g) of the ICTR Statute.90
The indictment alleged that Gacumbitsi was responsible individually and as
a superior under Articles 6(1) and 6(3), respectively. The specific
allegation was that Gacumbitsi was responsible for the acts of his
subordinates and for facilitating rape and sexual degradation of Tutsi
women by inserting objects into their genitals. His speeches, orders, and
tolerance of these acts encouraged this conduct. The Trial Chamber
applied the restrictive Kunarac legal definition.91
85.
86.
87.
88.
89.
90.
91.
Id. at 474.
Id. at ¶¶ 344-46.
See id. at ¶ 475-77.
Id. at ¶ 506.
Id.
Prosecutor v. Gacumbitsi, Case No. ICTR 2001-64-I, Indictment (June 20, 2001).
See id. at 321. While there were no rape or sexual violence convictions in the
Prosecutor v. Kajelijeli or Prosecutor v. Kamuhanda cases, it is important to note the
Kunarac test was applied in these cases as well. See Prosecutor v. Kajelijeli, Case
No. ICTR 98-44A-T, Judgment & Sentence (Dec. 1, 2003); Prosecutor v.
Kamuhanda, Case No. ICTR 95-54A-T, Judgment (Jan. 22, 2004).
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After reviewing the evidence, the Trial Chamber held that there had
been a “widespread and systematic attack” against the specifically targeted
Tutsi civilian population.92 These attacks were discriminatory, as these
civilians were targeted because of their Tutsi ethnic origin, or because of a
perceived relationship they had to a Tutsi.93 Hutu women married to Tutsi
men were singled out for particularly brutal treatment to punish them and
send a message to other Hutus thought to be traitors to the Hutu group.
The evidence supported the charges that Gacumbitsi, by his very
orders and speeches, instigated the assailants’ conduct. The Trial Chamber
found that Gacumbitsi ordered the assailants to kill anyone who resisted.94
The Trial Chamber concluded that: “the fact that rape victims were
attacked by those they were fleeing from, adequately establish [sic] the
victims’ lack of consent to the rapes.”95
I submit that by focusing on the conduct of the victim rather than the
acts of the Accused, the Trial Chamber creates further impediment in the
prosecution of rape and sexual violence notwithstanding the fact that, in
this particular case, the Chamber arrived at the correct decision. I further
submit that the Trial Chamber ought to have considered the ‘totality of the
circumstances.’ By virtue of the violent environment that existed in
Rwanda generally during this period - particularly in Rusumo, where the
attacks took place - consent was vitiated because as a result of intimidation
and fear for life, the victim could not resist the criminal assault.
Nonetheless, the Chamber found Gacumbitsi guilty of rape as a crime
against humanity.96
The Prosecutor has appealed based on the need to clarify the law
regarding whether absence of consent is a constituent element of rape as an
international crime, among other grounds.97 As described briefly above,
the Trial Chamber’s judgment refers to the victim’s state of mind in its
discussion on lack of consent. The issues raised by the Prosecutor on
appeal are whether:
(i) Non-consent of the victim and knowledge of the victim’s nonconsent, in international law, are essential elements of the crime
of rape that the Prosecution must prove.
(ii) The presumption, given the coercive circumstances inherent
92.
93.
94.
95.
96.
97.
Gacumbitsi, ICTR 2001-64-T, Judgment at ¶ 323.
Id. at ¶ 324.
Id. at ¶ 325.
Id.
Id. at ¶ 333.
Brief of Petitioner–Appellant at ¶¶ 47, 151, Prosecutor v. Gacumbitsi, Case No. ICTR
2001-64-A (Sept. 28, 2004).
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in rape as an international crime, the presumption is that there is
no consent (as reflected in the provisions of Rule 96 [of the
ICTR Rules of Procedure and Evidence]).
(iii) Consent can only have evidential relevance in the limited
circumstances where a defense of consent meets the
admissibility threshold in Rule 96.
(iv) The definition of rape should be made legally and morally
consistent with other international crimes, involving the
infliction of physical or mental harm upon persons, such as
torture or enslavement, and should take into consideration its
recognition as a feature of genocide.98
The matter is pending before the Appeals Chamber.
Akayesu holds that “rape, as it arises in the context of genocide,
crimes against humanity, or war crimes, is a form of aggression occurring
in a context of violence.”99 The Gacumbitsi Appeals Brief quotes the
Special Rapporteur to the UN Commission for Human Rights. The
relevant quote reads: “[r]ape was systematic and was used as a ‘weapon’ by
the perpetrators of the massacres. This can be estimated from the number
and nature of the victims as well as from the forms of rape.”100 The use of
rape and its impact on its victims is well documented.101 In such a context,
some legal scholars and practitioners argue that consent becomes an
irrelevant concept. During such conflicts, “[t]he manifestly coercive
circumstances that exist in all armed conflict situations establish a
presumption of non-consent and negates the need for the prosecution to
establish lack of consent as an element of the crime.”102 However, the
current trend of the ICTR and ICTY jurisprudence suggest that the
Chambers seem reluctant to abandon consent as an element of rape, as it
98.
Id. at ¶ 157. See generally Brief of Petitioner – Appellant at 47, ¶ 154, Prosecutor v.
Gacumbitsi, Case No. ICTR 2001-64-A (Appeals Chamber Sept. 28, 2004).
99. Brief of Petitioner, supra note 98, ¶ 157; See Prosecutor v. Akayesu, Case No. ICTR
96-4-T, Judgment, ¶¶ 597, 687 (Sept. 2, 1998).
100. Brief of Petitioner, supra note 98, at n. 194 (quoting Human Rights Report, supra
note 4, at ¶ 16).
101. Id. at ¶ 157.
102. Comm’n on Hum. Rts, Sub-Comm. on Prevention of Discrimination & Prot. of
Minorities, Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery, and
Slave-like practices during Armed Conflict, at para. 25, E/CN.4/Sub.2/1998.13 (June
22, 1998) (final submission by Gay J. McDougall, Special Rapporteur). This
observation may be made of the Rwandan Genocide or the crimes against humanity,
which were committed in that context.
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exists in the legislation of most national jurisdictions. The OTP position is
that rather than considering the victim’s state of mind, the Appeals
Chambers should view the totality of the surrounding circumstances.
6. Prosecutor v. Nyiramasuhuko103 [the Butare case]
The Butare case is an on-going case. There are six accused persons,
one of whom is Pauline Nyiramasuhuko, the former Minister of Women
and Family Affairs.104 I will only mention in passing that Pauline
Nyiramasuhuko is the first woman charged with the crime of genocide or
instigating rape as a crime against humanity.105 I believe the legal
fraternity is following this case with great interest.
III. THE CHALLENGES OF PROSECUTING RAPE AND SEXUAL VIOLENCE
Just over a decade ago, very little or no attention was paid to the
international criminal prosecution of acts of rape and sexual violence as an
international crime. Rape and sexual violence were not treated as serious
violations of international humanitarian law or international criminal law,
based on the international record of non-prosecution of such crimes. Since
the establishment of the ICTR and ICTY there has been consistent progress
in the international prosecution of crimes of rape and sexual violence
notwithstanding the fact that some set backs in the definition of rape as an
international crime have occurred along the way. There are, however,
areas in which improvement can and must be made. There may also be
some criticism of the OTP’s work, and the OTP is able and willing to
address those concerns.
The OTP now knows that crimes of rape and sexual violence, as
international crimes, are difficult to investigate and therefore, difficult to
prosecute. The OTP investigators, legal advisors, and prosecutors
recognize that crimes of rape and sexual violence go to the very essence
and soul of a raped or sexually assaulted person, and the personal injuries
suffered are often invisible. The accounts of these crimes based on the
witness statements available in the OTP database are disturbing. The OTP
103. Prosecutor v. Nyiramasuhuko, Case No. ICTR 98-42.
104. One of the accused is Sholom Arsene Ntahobali, a store manager and
Nyiramashuko’s son. Of the six accused persons, only Ntahobali and Nyiramashuko
are charged with sex-based crimes. “Butare” is the name of the prefecture where the
crimes alleged in the indictment were committed and all the accused are from.
105. Peter Landesman, The Minister of Rape: How Could a Woman Incite Rwanda’s SexCrime Genocide?, N.Y. TIMES MAG., Sept. 15, 2002. Ms. Nyiramasuhuko is the
subject of articles, magazine covers, and other media attention; there is no male
indictee who has received similar attention.
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also knows that Rwandan women are shy and tend not to talk about rape
when interviewed by male investigators. To overcome this, the OTP now
uses female investigators and trial lawyers. However, many victims still
continue to feel that exposing their vulnerability by talking about the
crimes committed against them serves no good purpose, especially as
international criminal prosecutions appear to last forever. The victims of
these atrocious crimes feel ignored and invisible. If these crimes are not
severely punished the message the international legal community sends is
that impunity and grave injustice will be tolerated.
The OTP recognizes that rape and sexual violence are serious crimes
that must be severely punished. The perpetrator should bear the shame and
stigma that society now attributes to the victim. The OTP therefore
concurs with Professor Christine Chinkin106 and Doctor Kelly Askin107
when they express the view that it is the rapist who should feel ashamed
because after all, it is those perpetrators who are cowardly in preying on
defenseless women and girls.108
Over the last ten years, the legal developments in the areas of rape
and sexual violence in international law indicate the international
community’s recognition that these crimes are serious and deserve redress.
The inclusion of these crimes in the ICTR Statute reflects the
understanding that these crimes constitute threats to international peace and
security and it is properly dealt with under Chapter VII of the United
Nations Charter.
Crimes of genocide, war crimes, and crimes against humanity are
violations of jus cogens, subject to universal jurisdiction.109 The ICTR and
ICTY have recognized sexual violence as a tool or mode of committing
genocide, war crimes, and crimes against humanity, making such violence
106. Professor Christine Chinkin of the London School of Economics has published
extensively in this field and has appeared before the ICTY as an amicus curie.
107. Dr. Askin is a Senior Legal Officer with the Open Society Institute. She is an
acknowledged expert in this field.
108. See Christine Chinkin, Women’s International Tribunal on Japanese Military Sexual
Slavery, 95 AM. J. INT’L L. 335 (2001). (“[R]ape as practiced in the comfort stations
was not an inevitable consequence of war, nor even an instrument of war, but formed
part of the very engine of war in which the sexual enslavement of women was
considered necessary to the pursuit of military objectives.”); Kelly D. Askin, Comfort
Women - Shifting Blame and Stigma from Victim to Victimisers, 1 INT’L CRIM. L. REV.
5, 29 (2001) (The Japanese comfort stations were considered an important part of the
military structure of having women readily available to soldiers for ‘safe’ sex. These
comfort stations were not used as a weapon of terror. They were kept secret to avoid
the enemy group from fleeing the area, and many victims were killed to keep the
stations a secret.).
109. See generally Hillary Charlesworth & Christine Chinkin, The Gender of Jus Cogens,
15 HUM. RTS. Q. 63 (1993).
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the subject of universal jurisdiction when the constituent elements are met.
While important, the development of international criminal law in the
area of sex-based crimes is only the beginning of the process of the
international prosecution of these crimes. The law is progressively
advancing at the procedural level as well. The procedural law must address
both the legal issues and the effect the outcome may have on the victim or
victims. Prior to a case coming before a Chamber there are people who
have suffered as a result of the crimes committed against them. In order to
present a case the prosecutors need witnesses to testify. It is at this
personal level that the international legal community still requires a great
deal of improvement and understanding.
In addressing some of these issues, the Prosecutor has put into place a
comprehensive prosecution strategy. The Prosecutor created a Rape and
Sexual Violence Unit, headed by a female lawyer, and based in Kigali,
Rwanda. The Unit has the responsibility to coordinate all investigations in
rape and sexual violence cases. During the early years of the ICTR,
investigators received little or no training with respect to the methodology
of investigating widespread and systematic crimes, genocide, and sexbased crimes.
Many investigators had not studied international
humanitarian law and had not investigated crimes committed in the context
of widespread, systematic rape and sexual violence. Consequently, many
were not familiar with the legal elements of the crimes they were
investigating. Since the investigations were not methodical, there were
multiple statements made by the same witness to investigators of the
various NGOs and to a number of OTP investigators. The presence of
multiple statements, some of which were exculpatory, created a separate set
of problems in prosecuting alleged offenders. It was difficult for a
prosecutor who received witness statements to know what questions were
put to the witness, what the encounter was like, and whether the witness
made more than one statement either to the NGOs, defense investigators,
investigative journalists, or OTP investigators. To address this problem,
the OTP has created an Information and Evidence Support Section [IESS].
The work of the IESS has significantly improved the quality of the OTP’s
work.
Another unit within the Investigation Division responsible for
providing support (including medical care) to witnesses before, during, and
after testifying in court has also been created. This Unit is separate from
the Witness and Victims Support Section [WVSS] that is in the Registry.
The OTP recognizes that this is a small step, however, the importance
and relevance of these Units is demonstrated by the fact that the number of
witnesses previously reluctant to come forward and testify is increasing.
The adoption of a comprehensive prosecution theory and the establishment
of a Rape and Sexual Violence Investigative Unit allow investigative and
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trial teams to move forward with a single, clear purpose throughout their
endeavour.