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DECLARATION
I, SEMANZA Jean Damascène hereby declare that the work
presented in this dissertation is original. It has never been presented at any
University or Institution. Where other peoples' work has been used, references
have been provided and in some cases quotations made. It is in this regard that
I declare this work is my own presented in partial fulfillment for award of a
Bachelor's Degree in law.
Date ......../....... /.........
Signature
SEMANZA Jean Damascène
DEDICATION
To the Almighty God;
To my beloved parents;
To my aunt, sisters and brothers;
To all my friends.
ACKNOWLEDGEMENTS
Different people and institutions contributed in different
ways towards the success of this research. I am therefore honored and obliged
to offer my acknowledgements as follow:
First of all, I take pride in thanking God Almighty for having
enabled me to do this research, which was challenging; but by his grace, I
approached every bit of it with courage and wisdom.
My sincere appreciation goes to the Kigali Independent
University (ULK) and the School of law in particular for the support; it has
accorded me to facilitate the completion of the four years course and this
research in particular.
Special thanks to my supervisor, Dr. MWENEDATA
Alfred for his patience and guidance throughout this research. His
comments, advice, suggestions and encouragement are so much appreciated.
I am greatly indebted the great work to all those who
contributed financially, materially or morally towards the completion of this
work particularly: my parents, my Aunt KUBWIMANA Constance,
my brother who sponsored me Dr. SEMASAKA SENGOMA Jean Paul
with his family, and friends for their fruitful advice, encouragement and care
throughout the study, even in my studies in general.
I cannot forget the rest of entire class, inclusive our
discussions and combined efforts made a great contribution to our academic
progress possible and enjoyable, may God bless you all.
Thank you indeed.
LIST OF ACCRONYMS AND
ABBREVIATIONS
Art. :
Article
CCB III : Civil
Code Book III
Ed. :
Edition
Ibid. :
Ibidem (The same author, same book, same page)
ICC :
International criminal Court
ICTR :
International criminal Tribunal for Rwanda
ICTY :
International Criminal Tribunal for the former Yugoslavia
Id. : Idem
(The same author, same book, different pages)
No. :
Number
OTP : Office
of the Prosecutor
Para. :
Paragraph
P. :
Page
Sept. :
September
ULK :
Université Libre de Kigali
UN : United
Nations
Vol. :
Volume
V. :
Versus
Table of
Contents
DECLARATION
Erreur ! Signet non
défini.
DEDICATION
ii
ACKNOWLEDGEMENTS
iii
LIST OF ACCRONYMS AND ABBREVIATIONS
iv
Table of Contents
.............................................................................................
v
GENERAL INTRODUCTION 1
1. Choice and interest of the study
1
2. Delimitation of the study
3
3. Problem statement
2
4. Research Hypotheses
3
5. Research objective
4
6. Research Methodology
4
7. Subdivision of the work
5
CHAPTER I: GENERAL OVERVIEW OF THE CRIME OF
RAPE AND RELATED CRIMES
6
I.1. General notions of rape and sexual
violence
6
I.1.1.Definition of rape
6
I.1.2. Different categories of rape
6
I.1.3. Rape as act of torture
8
I.1.4. Sexual violence
8
I.1.5. Sexual assault
8
I.1.6. Sexual slavery
9
I.1.7. Sexual mutilation
9
I.1.8.The act must be inhuman in nature and
character causing great suffering or serious injure to bodily or mental
/physical health
10
II. 2. Background of the crime of rape and sexual
violence
10
I.2.1. Rape and Sexual Violence in International
Criminal Law
10
I.2.2. The International Criminal Tribunal for the
Former Yugoslavia (ICTY)
10
I.2.3. The International Criminal Tribunal for
Rwanda (ICTR)
11
I. 3. Classification of the crime of rape and
sexual violence under the ICTR statute
12
I.3.1. Rape as Genocide
12
I.3.2. Killing members of the group as act of
rape
13
I.3.3. Causing serious bodily or mental harm to
members of the group
13
I.3.4. Deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction in whole
or in part
14
I.3.5. Imposing measures intended to prevent births
within the group
14
I.3.6. Rape as crime against humanity
14
I.3.7. Sexual Violence as a War Crime
15
I. 3.8. Rape as violation of the article 3 common
to the Geneva Convention of 1949
16
CHAPTER II: THE ANALYSIS OF RAPE CASES
JURISPRUDENCE AT THE ICTR ..
17
II.1. The ICTR jurisprudence
17
II.1.1. The individual criminal responsibility
18
II.1.1.1. Instigating
18
II.1.1.2.The Ordering
19
II.1.1.3. Committing
20
II.1.1.4. Aiding and Abetting
21
II. 2. The role of consent in defining and proving
rape
21
II. 3. The challenges of prosecuting crime of rape
and sexual violence
22
II. 4. Joint Criminal Enterprise theory in sexual
violence jurisprudence
24
II. 5. Targeted Application for maintaining
Legitimacy
27
II.6. ICTR weakness in conviction for crime of rape
and sexual violence
30
II.7. Prosecuting of rape with inadequate
evidence
34
CHAPTER III. MECHANISMS FOR PROSECUTING THE
CRIME OF RAPE AND SEXUAL VIOLENCE
36
III. 1. Mechanisms to the International Criminal
Tribunal for Rwanda
36
III.2. ICTR Concurrent Jurisdiction with other
national courts
37
III.3. The ICTR rules 11bis of procedure and
evidence
37
III.4. Mechanisms to Rwandan Law
38
III.4.1. Rape under the law No. 59/2008 of
10/09/2008 on prevention and punishment of Gender- Based Violence
38
III.4.2. Rape under the law No. 13/2008 of 19/05/
2008 establishing the organization competence and functioning of Gacaca in
Rwanda
40
III.4.3. Rape under the law n° 01/2012/ of
02/05/2012 instituting Rwandan Penal Code
41
III.4.4. Organic law n°03/2009/ of 26/05/2009
concerning the transfer of cases from ICTR to Rwandan jurisdictions
41
III.5. Consequences of rape in Rwanda
43
GENERAL CONCLUSION AND SUGGESTIONS
46
BIBLIOGRAPHY
50
GENERAL INTRODUCTION
1.
Choice and interest of the study
Today, international courts have played a significant role
towards the legal protection of women and this has influenced perceptions and
practice under international criminal law and international humanitarian law.
The current definition of rape and sexual violence committed against women in
armed conflict has been informed by the jurisprudence set by ad hoc tribunals
of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the
International Criminal Tribunal for Rwanda (ICTR).
The International Criminal Tribunal for Rwanda plays a big
role in defining the crimes of rape and sexual violence, whether it was not
defined in international criminal law and also it was not punished anywhere as
international crime.
After reading and analyze different cases adjudicated in ICTR,
we have seen that the ICTR prosecution faces a number of difficulties in the
process of investigation and prosecution. These challenges to the Office of The
prosecutor (OTP) are truly immense and out of uncontrolled discretion powers,
the prosecutor can take an unsubstantiated decision. The main concept used in
confirmation of indictment is neither defined in the ICTR statute nor Rule of
Procedure and Evidence (RPE). This omission may appear to be somewhat
surprising given the importance of the term.1(*) Therefore, the standards followed in deciding which
case should be prosecuted remains unknown.
The prosecutor is likely to be limited to some information
simply because he is not in position to know people with real needed
information to prosecute a certain case. For example, victims and eyewitnesses
who provide information to investigators are those identified by the
investigation office of Rwanda but there is no any avenue to sensitize those
people with relevant information to voluntarily take part in providing evidence
to the prosecution. Thus, some people with tangible testimonies may be left out
due to the prosecutor's failure to identify them.
The prosecutor's discretion in attaining evidence can be
affected by his lack of adequate information on Rwandan situation and history
to the extent that some of testimonies may look too strange for him to believe
and this can make him decide otherwise. The ICTR investigators who come from
other countries prefer conducting their research for evidence in Towns where
they can easily identify accommodation other than in deep villages, that's why
sometime, the trial chamber in ICTR took prosecutor's evidence as incomplete.
Language barrier is another limitation to the prosecution,
when the information is interpreted into another language it loses its
authenticity and this can either lead to the addition of some facts or reduce
some relevant information that would be useful to the prosecution. A big number
of witnesses testifying before the ICTR are the victims of the accused to whom,
torture , rape and other inhuman treatment were committed, a large number saw
their family members, friends and relatives being raped and may end up badly
presenting their views.
Therefore it is out of these mentioned critics and
difficulties to the prosecutor that his discretion power might be recklessly
used and that is why in the succeeding chapter we concentrated on it.
The ICTR has prosecuted crimes of Rape and Sexual Violence, and there is need
to legally and scientifically analyze its applicability in international
criminal law and particularly in Rwandan law. In this work we tried to analyze
different cases to see how rape and related crimes prosecuted at the
International Criminal Tribunal for Rwanda.
2. Delimitation of the study
The work is compulsorily limited in domain, in time and in
space. In the domain, this study is limited in public international law
especially in international criminal law. In time, it is limited from 1994
where the International Criminal Tribunal for Rwanda was created by the United
Nations Security Council resolution. And in space, it limited on Rwandan
territory.
3.
Problem statement
Recently, a crime of rape was not prosecuted in international
criminal law, because of the absent of its definition. After making legal
analysis on the ICTR cases, putting in consideration the brutality of the crime
of rape and sexual violence, considering also that these crimes have not been
prosecuted neither as war crime nor genocide or crime against humanity until
1998. With much concern also that domestic law has to be improved in relation
to the brutality of the crime of rape. We analyzed different cases where we
found unfairness in prosecuting rape cases where accused acquitted on crimes
they committed because of unqualified of prosecutor who give insufficient
evidences. Because sometimes, prosecutors didn't make investigations and
collecting evidences as well as possible. The years of varying levels of
neglect with regard to collecting sexual violence evidence have meant that
there are gaps in presenting the evidence at trial. At the prosecution level,
there are concerns among trial lawyers that they do not have strong evidence to
proceed with rape charges in some cases. Basing on that analysis, the
problematic based on the following questions.
- What is the legal framework for the prosecution of the crime
of rape and sexual violence?
- What are applicable mechanisms to ensure the prosecution of
rape and sexual violence as an impact to Rwandan law?
These two questions are to be answered through the research in
order to have clear analytical answers and understanding to them.
4. Research Hypotheses
The hypothesis is a proposal answer to the question that a
researcher tries to ask in the problem statement related to the topic2(*)
1. Any national jurisdiction should at the outset be aware of
what sexual violence related charges are available to it under international
law, in order to implement best practices when they prosecute crimes of rape
and sexual violence and they should relevant training to all of its
investigators and lawyers.
2. In prosecuting the crime of rape, there should be applied
legal and institutional mechanisms which have to be applied especially in
procedure of prosecuting the crime of rape and sexual violence in Rwanda as an
improvement of Rwandan criminal procedure.
5.
Research objective
Any work or project to be accomplished successfully must have
certain objectives to be achieved; otherwise there is no need of carrying out
if it has no objective. Objectives help the researcher to keep to the scope the
study by defining the area of knowledge that is focused on. It is in this
context that during the research the following objectives had been focused
on:
- To analyze deeply the problems of prosecution at the ICTR
related to rape and look for solution
- To issue all possible mechanisms in order to prosecute
crimes of rape and sexual violence
-To show implications of ICTR jurisprudence to Rwandan
jurisdictions in prosecuting rape and sexual violence.
6. Research Methodology
Techniques can be defined
as procedure that allows the researcher to collect data and information in
relation to the research topic. For this work, the researcher used a
documentary technique. It helps the researcher to consult in different Books,
laws, Treaties, Report and Electronic sources which related to the research
topic. The method is a set of intellectual operations which
enable to the researcher to analyze, understand and to explain the analyzed
reality. This is done through different methods. In our research we have
used.
Exegetic method: which is helps us to analyze and interpret
the collected information, it is also helps us to analyze and interpret laws
rules and data related to our topic.
Analytic method: The analytical method consists to bring
order, structure and meaning data collected.
Synthetic method: This method helps us to make a
summary of different data collected from different sources which were
consulted.
7. Subdivision of the work
This dissertation is divided into three chapters. First
chapter deals with general overview of the crime of rape and related crimes
from which we define rape according to different sources and other terms
related to the work. In Second chapter we tried to analyze different cases
adjudicated in ICTR basing on the prosecution of the crime of rape and sexual
violence. Third chapter deals with legal mechanisms for handling rape cases and
related sexual violence. And this work is ended by general conclusion and
suggestions.
CHAPTER I: GENERAL OVERVIEW OF THE CRIME OF RAPE AND RELATED
CRIMES
This chapter deals with definitions of legal terms related to
rape by different international tribunals and courts.
I.1. General Notion of rape and sexual
violence
Unfortunately, rape and sexual violence can come in many
forms. In order to better understand the wide range of personal violence that
can occur we have included definitions of different types of rape and sexual
violence, as well as other kinds of violence that often arise hand-in-hand with
sexual violence.
I.1.1.Definition of rape
Rape is an act of violence and
domination and anger. It uses sexual acts including penetration as weapons.
Rape is a subject which most people find uncomfortable. For women it conjures
up all kinds of images.3(*)
I.1.2. Different
categories of rape
There are several types of rape. It is a violent crime
involving sexual acts forced on one person by another. Rape is technically
defined as forced penetration with any body part or object including anal,
vaginal or oral intercourse. The forms of rape may be specified based on who is
committing the rape, which the rape victim is and the specific actions involved
in the rape. Some types of rape are considered much more severe than others.
For example any type of rape resulting in someone's death.
a) Diminished capacity rape
The type of rape known as diminished capacity rape is
committed when one person forces sexual penetration on other person who cannot
consent to the sex act. People with diminished capacity can't consent to sexual
acts due to limited physical or intellectual ability. An example would be a
person with an intellectual disability. Diminished capacity, takes places when
a person has no ability to consent, to sexual acts due to intoxication.4(*)
b) Incest
It is a kind of rape dictated by relationship between the two
parties. When the two parties involved in sexual act are closely related.
Examples of incest include: parent and children, uncles and aunts with their
nieces or nephews.5(*)
c) Partner rape
It is known as spousal rape or marital rape, is a type of rape
involving a person's partner or previous partner. There are three types of
partner rape;
Battering rape: this type of rape involving
both physical and sexual violence
Force - only rape: It involves the imposition
of power and control over another.
Obsessive or sadistic rape: it involves
torture and perverse sexual acts.5(*)
d) Acquaintance rape
This type of rape happens between two people that know each
other. Often acquaintance rape is known as date rape as the two people involved
may be in a social relationship at the time. Some victims don't recognize
acquaintance rape as rape but it's important to remember that consent for
sexual activity can be revoked at any time and a prior relationship does not
mean that rape cannot occur. 6(*)
e) Aggravated rape
Aggravated rape is a type of rape defined in law; it involves
forced sex acts by threat of death or serious bodily injury, forced sex acts
involving an unconscious or drugged victim, sex acts with children under the
age of 12. Rape can occur in many other ways as well, including by strangers or
in conjunction to a hate crime. However, it's critical to remember that
whatever form of rape occurs; it is always the fault of the rapist and never
the fault of the victim. 7(*)
I.1.3. Rape as act of torture
In Akayezu case, the Trial Chamber also made several critical
findings with regards to crimes of rape and sexual violence. Although it did
not convict him on these grounds, the chamber stated that rape can constitute
torture under Article 3(f) of the ICTR Statute because both are used for
purposes such as intimidation, degradation, humiliation, discrimination,
punishment, control or destruction of a person. Like torture, rape is a
violation of personal dignity.8(*)
I.1.4. Sexual violence
This is considered to be any act of sexual nature; committed
on a person under the circumstances which are coercive, it is not limited to
physical invasion of the human body and may include acts which do not involve
penetration or even physical contact9(*).
I.1.5. Sexual assault
This is sometimes called rape; it is a physical attack by a
person involving sexual intercourse with or sexual penetration of another
person without their consent.10(*)
I.1.6. Sexual slavery
It is a special case of slavery which includes various
different practices such as:
- forced prostitution
- Single owner sexual slavery
- Ritual slavery, sometimes associated with traditional
religious practices
- Slavery for primarily non- sexual purposes where sex is
common or permissible
In general, the nature of slavery means that the slave is de
facto available for sex.11(*)The alleged acts indicted by the ICTY prosecutor in
the Foca case as enslavement and rape might also qualify a sexual slavery if
prosecuted under the ICC statute. The victims in that case were allegedly
confined in house which was being run similar to a brothel where they were
treated as personal property of the perpetrator and were subjected to repeated
rapes and sexual assaults.
It has also been pointed out that some Rwandan women
acquiesced to forced temporary marriage and performing sexual services to
their so-called husband in order to save their children from the ongoing
genocide. Some of the women locked up or confined, while others stayed at their
home to protect themselves or their family members from danger threatened by
their husband should they attempt to escape.12(*)
The ICC elements of crimes as existing when perpetrator
exercises «any or all of the powers attaching to the right of ownership
over or more persons, such as by purchasing, selling, lending or battering such
a person or persons, or by imposing on them a similar deprivation of liberty
and causes such a person to engage in one or more acts of sexual
nature»13(*)
I.1.7. Sexual mutilation
In Rwanda during genocide, often rape of women was followed or
accompanied by mutilation of the sexual organs of features held to be
characteristic of the Tutsi ethnic group. Sexual mutilation included the
pouring of boiling water into the vagina: the opening of the womb to cut out
the unborn child before killing the mother; cutting off the breast; and the
mutilation of the vagina.14(*)
I.1.8.The act must be inhuman in nature and character causing
great suffering or serious injure to bodily or mental /physical health
In Akayezu case, acts of rape and sexual violence were charged
as crimes against humanity for causing serious body or mental harm, when
committed as part of an intentional campaign to destroy people as such on ethnic basis. The
accused was found individually criminally responsible for crimes against
humanity, for abetting and aiding the infliction of serious bodily and mental
harm on Tutsi women for the purpose of destroying the Tutsi group as
such.15(*)
II. 2.
Background of the crime of rape and sexual violence
Despite mass rape and other forms of sexual violence committed
against women in times of conflict around the world, the perpetrators of those
crimes have been rarely prosecuted and brought before international criminal
tribunals16(*)
I.2.1.
Rape and Sexual Violence in International Criminal Law
We are going to talk about rape and Sexual Violence according
to different international tribunals.
I.2.2. The International Criminal Tribunal for the
Former Yugoslavia (ICTY)
The International Criminal Tribunal for the Former Yugoslavia
(ICTY) was established in 1993 with competence of trying offenders for crimes
provided in article 2 to 5 of its statute namely: grave breaches of the Geneva
Convention of 1949, violation of the laws or customs of War, Genocide, crimes
against humanity, rape and sexual violence as War crimes.17(*)
I.2.3.
The International Criminal Tribunal for Rwanda (ICTR)
The International Criminal Tribunal for Rwanda was created by
the United Nations Security Council Resolution 955 of November 8, 1994, with
the aim to prosecute persons responsible for committing serious violations of
international humanitarian law committed in Rwanda from 1st April to
31st December 1994, like Genocide, crimes against humanity, and
violations of Common Article 3 of the Geneva Conventions and Additional
Protocol II of the Geneva Conventions which govern internal armed conflicts.
And to prosecute Rwandan citizens responsible for such violations committed in
the territory of neighboring states in that time.
Genocide includes acts committed with the intent to destroy,
in whole or in part, a national, ethnic, racial or religious group. Rape is
clearly a prosecutable crime under the mandate of the International Criminal
Tribunal for Rwanda. It is explicitly identified as one of the crimes
against.18(*) The Statute
also specifies rape to be a violation of Article 3 common to the Geneva
Conventions and of Additional Protocol II.19(*)
Rape can also be a form of torture under international law as
well as an act of genocide. At this time, the International Criminal Tribunal
for Rwanda is undertaking its investigation and compiling evidence to bring
indictments against those accused of organizing the genocide. The ICTR has in
effect generated a lot of development with regard to the jurisprudence in
International Criminal law particularly for sexual offences and rape. The
Akayezu case since the adoption of the Geneva Convention of 1948 where a
conviction for either genocide or crime against humanity by using rape and
sexual violence as a mode of committing a crime was rendered.20(*)
According to one of the
most famous decisions for the subject of rape, the Akayesu case decision before
the ICTR, the Trial Chamber considered that the traditional mechanical
definition of rape did not adequately capture its true nature and instead
offered a definition of rape as physical invasion of a sexual nature, committed
to a person under circumstances which are coercive. While rape has been defined
in certain national jurisdictions as non-consensual intercourse, variations on
the act of rape may include acts which involve the insertion of objects50
and/or the use of bodily orifices not considered to be intrinsically
sexual.21(*)
I. 3. Classification of the crime
of rape and sexual violence under the ICTR statute
The crime of rape and sexual violence is classified in the
ICTR statute and shall be followed by analyzing the jurisprudence as shown
below:
I.3.1. Rape as Genocide
The Statute of the ICTR does not explicitly mention rape as a
constituent act of genocide, but the case law of the ICTR leaves no doubt that
rape can constitute genocide. The Trial Chamber in Akayezu determined that he
had committed genocide by referring explicitly to rape: `Tutsi women were
systematically raped (...). Furthermore, it is proven that on several
occasions, by his presence, his attitude and his utterances, Akayezu encouraged
such acts (...). In the opinion of the Chamber, this constitutes tacit
encouragement to the rapes that were being committed. Subsequently, the Chamber
concluded that rape can constitute genocide if the requisite elements of
genocide are met and that Sexual violence was an integral part of the process
of destruction, specifically targeting Tutsi women and specifically
contributing to their destruction and to the destruction of the Tutsi group as
a whole.
The fact that the Trial Chamber explicitly recognized rape as
an integral part of genocide and that Akayezu was found guilty for crimes that
included rape and sexual violence makes the Akayezu decision
historical.22(*)
There are three acts listed in article 2 that can constitute
rape; causing seriously mental or bodily harm to members of the group,
deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part and imposing measures
intended to prevent births within the group. Rape can be characterized in each
of these groups, as long as the specific circumstances of one of these acts are
present.23(*) And we are
going to see how rape constituted in these acts of genocide.
I.3.2.
Killing members of the group as act of rape
In Akayezu case the court noted that many women subjected to
sexual violence were murdered thereafter. On the basis of the different
testimonies brought before the court, the trial chamber found that in most
cases, the rape of Tutsi women in Taba, were accompanied with the intent to
kill those women. It was clear to the court that those acts of rape and sexual
violence as acts of serious bodily or mental harm committed against the Tutsi,
and reflected the determination to make victims suffer and to mutilate them
even before killing them. It shows that the intent being to destroy the Tutsi
group.24(*)
I.3.3. Causing serious bodily or
mental harm to members of the group
The Court found in Akayezu case that the elements of serious
bodily or mental harm to mean acts of torture, inhuman or degrading treatment
persecution.25(*) In the
Kayishema and Ruzindana judgment, the phrase was interpreted as harm that
seriously injures the health, causes disfigurement or causes any injury to the
external, internal organs or senses. Following the conviction of Akayezu for
rape and sexual violence as genocide, it is now well established serious bodily
or mental harm may include acts of rape and sexual violence. Another example of
serious bodily or mental harm, in Gacumbitsi case, the accused was found to be
responsible for instigating the crime of genocide by causing serious bodily or
mental harm through rape of Tutsi women and girls.26(*)
I.3.4. Deliberately inflicting on
the group conditions of life calculated to bring about its physical destruction
in whole or in part
In Akayezu case, the court held that deliberately inflicting
conditions of life calculated to bring about its physical destruction in whole
or in part, should be constructed as the methods of destruction by which the
perpetrator does not immediately kill the members of the group, but which
ultimately seek their physical destruction.27(*)
I.3.5. Imposing measures intended
to prevent births within the group
The act of genocide of imposing measures intended to prevent
births within the group has been clarified also in Jean Paul Akayezu judgment
where the court held that such measures may include sexual mutilation, the
practice of sterilization, forced birth control, and separation of sex and
prohibition of marriage.28(*)
The Trial chamber stated also that in patriarchal societies,
where membership of the group is determined by the identity of the father, as
example of a measure intended to prevent births within a group, is the case
where during rape a woman of the said group is deliberately impregnated by a
man of another group, with the intent to have her birth to a child who will
consequently not belong to its mother's group.29(*) Finally, in Akayezu case, the court noted that
measures intended to prevent birth within group may be physical but they can
also mental.30(*)
I.3.6.
Rape as crime against humanity
Rape is provided also as a crime against humanity under
article 3 (g) of the ICTR statute. It has been held by the ICTR in Akayezu case
to be a form of aggression whose central elements cannot be captured in a
mechanical description of objects and body parts.
The conceptual framework is used to define rape by recognizing
that the essential elements of rape are not the particular details of the body
parts and the objects involved, but rather the aggression that is the expressed
in a sexual manner under conditions of coercion. Rape is thus defined as a
physical invasion of a sexual nature committed on a person under circumstances
which are coercive; it may or may not involve sexual intercourse.
Coercive circumstances need not be evidenced by a show of
physical force; threats, intimidation, extortion, and other form of duress
which prey on fear or desperation may be coercion. Besides coercion may be
inherent in certain situations, such as armed conflict, in which the victim
finds herself or himself. While rape and sexual violence are committed on a
person under coercive circumstances, rape is distinguishable from other forms
of sexual violence in that the body of another person. Thrusting a piece of
wood into the sexual organ of a woman as she lies dying is rape. Forced
penetration of the mouth which is a humiliating and degrading attack on human
dignity can be considered rape.31(*)
I.3.7.
Sexual Violence as a War Crime
International humanitarian law explicitly and implicitly
condemns rape and other forms of sexual violence as war crimes. The Geneva
Conventions of August 12th 1949 and the Protocols Additional to the
Geneva Conventions prohibit rape in both international and internal
conflicts.32(*) In
internal conflicts, such as that which occurred in Rwanda, common article 3 of
the Geneva Conventions prohibits violence to life and person, in particular
murder of all kinds, mutilation, cruel treatment and torture as well as
outrages upon personal dignity, in particular humiliating and degrading
treatment." Protocol II Additional to the Geneva Conventions, which also
governs certain internal armed conflicts and which applies to the conflict in
Rwanda, expressly forbids violence to the life, health and physical or mental
well-being of persons, in particular murder as well as cruel treatment such as
torture, mutilation" and "outrages upon personal dignity, in particular
humiliating and degrading treatment, rape, enforced prostitution and any form
of indecent assault," as well as "slavery and the slave trade in all their
forms.33(*)"
I. 3.8. Rape as violation of the
article 3 common to the Geneva Convention of 1949
This article also is applied within crimes which are under the
ICTR jurisdiction. In violation of article 3 common to the fourth Geneva
conventions, the crime of rape or any other form of sexual violence was not
mentioned explicitly. In contrast, the statute of the ICTR does not only
include serious violation of common article of the 1949 Geneva Convention in
its article 4, but also the serious violation of Additional Protocol II. The
ICTR also refers to the Outrages upon personal dignity, in particular rape
enforced prostitution and other form of indecent assault. 34(*)
There has been only conviction for sexual violence on the
basis of the article 4 of the ICTR that is for the accused Laurent Semanza who
was convicted on the basis of the article 4; the violence to life, health and
physical or mental wellbeing of persons. He was convicted instigating the rape
and torture of victim A, conduct for which he had already been
convicted rape and torture.35(*)
After dealing with general overview, by issuing some
definitions related to rape in different sources and to know how it is
considered with other crimes, we are going to the following chapter II which
deals with development of the ICTR on rape cases and sexual violence
jurisprudence in international criminal law.
CHAPTER II: THE LEGAL FRAMEWORK
FOR THE PROSECUTION OF RAPE AND SEXUAL VIOLENCE
In this chapter we tried to analyze different cases basing on
the crime of rape and we criticized them for their convictions.
II.1. The ICTR jurisprudence
The
ICTR has developed significant jurisprudence on the prosecution for rape and
sexual violence since 1994. The ICTR judgments established that rape and sexual
violence were major components of the Rwandan genocide. In 1994 rape and sexual
violence were committed as part of widespread and systematic attack against a
targeted group of Tutsi women.36(*)
An example of such a case adjudicated by the ICTR was the Prosecutor v.
Akayezu. In addition to successfully prosecuting the first rape based genocide
conviction as explained in the previous chapter, the ICTR decision in Akayezu
case has two other significant impacts.
First of all, the ICTR was the first to define rape at the
international level, secondly on the basis of national and international law
and jurisprudence, the ICTR concludes that it is acceptable to convict the
accused of two offences in relation to the same set of facts in the following
circumstances: «Where the offences have different elements; or where the
provisions creating the offences protects different interests; or where it is
necessary to record a conviction for both offences in order fully to describe
what the accused did.»37(*).
Another of the main contributions of the ICTR has been the
improvement of the law on Genocide. Where the trial chamber in Akayezu case
provided rape as the element of genocide. The ICTR Statute adopted the
definition of Genocide from the 1948 Convention against Genocide, and its first
application in an international criminal law context was at the ICTR. Jean
Paul Akayezu, the first person to be convicted of Genocide was a bourgmestre of
Taba Commune, in ex-Gitarama prefecture. This was the first Genocide conviction
before an international tribunal. Another notable conviction was that of Jean
Kambanda, the Prime Minister of the Interim Government at the time of the
events in 1994. Kambanda's conviction represents the first conviction of a
former head of government before an international tribunal.38(*)
Referring to the definition of rape in various national
jurisdictions, the Trial Chamber's definition was guided by a conceptual
framework, rather than a «mechanical description of objects and body
parts.» The Trial Chamber noted the cultural sensitivities involved in
public discussions of intimate matters and recalled the painful reluctance and
inability of witnesses to go into details about the alleged behavior.39(*)
Consequently, the definition for rape given by the Akayesu
Trial Chamber was: «a physical invasion of a sexual nature, committed on a
person under circumstances which are coercive.» A Trial Chamber of the
ICTY also adopted this definition in Prosecutor v. Delaliæ two
months later.40(*) As we
mentioned, there are cultural sensitivities that must be respected, in
particular the question of how descriptive the elements should be and to what
level of detail a victim must describe the horrendous events inflicted upon her
or him. Should the word «penetration» be used, or is the phrase
«physical invasion» as captured by the Akayesu decision is
enough to provide sufficient notice and information to all parties involved in
the proceedings? This should not be analyzed well though the ICTR trial
chambers before taking decision on those counts related to rape, because
according to different authors written on rape, physical invasion is not enough
for prosecuting the crime of rape.
II.1.1. The individual criminal
responsibility
The ICTR statute states that a person who planed, instigated,
ordered, committed or otherwise aiding and abetting in planning, perpetration
or execution of a crime referred to in article 2 to 4 of the statute of ICTR,
shall be individually responsible for the crime41(*). The ICTR has convicted persons of genocide, crime
against humanity, and war crimes for committing, instigating, aiding and
abetting and encouraging acts of sexual violence.
II.1.1.1. Instigating
The actus reus of instigating means prompting another to
commit an offence (which is actually committed), either through an act or
omission. It is sufficient to demonstrate that the instigation was a factor
substantially contributing to the conduct of another person committing the
crime. It is not necessary to demonstrate that the crime would not have
occurred without the accused involvement. The accused does not need to be
actually present when the instigated crime is committed.42(*)
In December 2003, the International Criminal Tribunal for
Rwanda (ICTR) delivered a judgment that convicted three media executives
Ferdinand Nahimana, Jean Bosco Barayagwiza and Hassan Ngeze for their role in
instigating hatred and inciting genocide. It was a significant judgment in that
it acknowledged the powerful role that the media and hate speech can play in
inciting people to mass violence. In Rwanda, the consequences were devastating.
In a three-month period, some people were killed and others were raped and
mutilated. 43(*)
This case was criticized in our research and we asked why were
none of these men held responsible for their role in provoking the sexual
attacks against Tutsi women? Clearly the evidence was there. In strong
language, the court found that these media executives had targeted vilified and
endangered' Tutsi women in such a way that made the sexual attacks a
foreseeable consequence of the role attributed to them.
But the ICTR prosecutor never led charges to hold these three
defendants responsible for their part in encouraging the brutal rapes and
sexual mutilations. In fact, in arguing the case, the prosecutor paid little or
no attention to the vicious gender propaganda, despite the strong evidence
that continued to make its way into the courtroom and, ultimately, into the
judgment.
This negligence is part of a larger failure of the
Prosecutor's Office at the ICTR to fully deliver justice to Rwanda's victims.
Given the irresistible evidence of widespread sexual violence during the
genocide, the lack of accountability for these crimes can only be attributed to
the lack of a comprehensive strategy on the part of the Prosecutor's Office to
effectively investigate and prosecute these crimes.
II.1.1.2.The
Ordering
Someone in a position of de jure or de facto
authority uses that authority to instruct another person to commit an
offence.44(*) The person
ordered must commit the material elements of the crime. Ordering does not
require the physical presence of the accused at the site of the crime.45(*)
It is not necessary to demonstrate the existence of a formal
superior-subordinate relationship between the accused and the direct
perpetrator. It is sufficient that the accused possessed the authority to order
the commission of an offence and that this authority can be reasonably implied.
Like any other mode of liability, ordering can be proven by circumstantial or
direct evidence, taking into account evidence of acts or omissions of the
accused. We analyze that an accused cannot be convicted of ordering and
committing the same crime.
II.1.1.3. Committing
Committing requires the personal or physical, direct or
indirect, participation of the accused in the relevant criminal act, or an
omission to the same effect, where it is established that he had a duty to act,
with the requisite knowledge. An accused will be held criminally responsible if
he actually carries out the actus reus of the enumerated crimes.
There can be several perpetrators in relation to the same
crime where the conduct of each of them fulfils the elements of the definition
of the substantive offence. The requisite mens rea is that the accused intended
that a criminal offence occur as a consequence of his conduct. In Muhimana
trial, he was found to have personally raped seven women and was convicted of
rape as crime against humanity.46(*)
In several recent ICTR cases allegations for rape based on the
accused personally committing the crime of rape have not been sustained or they
have been overturned because of insufficient evidence. And Musema appeals
chamber overturned Musema's rape conviction because new evidence was presented
to the appeals Chamber that established reasonable doubt as to Musema's
guilty.47(*)
In Kamuhanda case, the trial chamber acquitted him of rape as
crime against humanity because the witnesses who testified about rape did not
observe it themselves.48(*)
However, ICTR has held that an accused may criminally
responsible for an omission as a principal perpetrator, if the following
elements must be fulfilled: the accused must have had a duty to act, mandated
by a rule of criminal law; the accused must have had the ability to act; the
accused failed to act, intending the criminally sanctioned consequences or with
awareness and consent that the consequences would occur; and the failure to act
resulted in the commission of the crime.49(*)
The ICTR Appeals Chamber has left open the question as to
whether this duty to act must derive from criminal law or whether any legal
obligation to act is sufficient.
II.1.1.4. Aiding and Abetting
Aiding and abetting is constituted by acts that consist of
practical assistance, encouragement or moral support to a principal offender of
a crime. The assistance may consist of an act or omission; occur before,
during, or after the act of the principal offender; and be removed in time and
place from the actual crime.
The presence during the commission of a crime within ICTR
jurisprudence has been held to constitute aiding and abetting. In Kayishema
case, the court found the presence of spectator who knew that his or her
presence would encourage perpetrators in committing a criminal act can lead to
be liable for the crime committed by the perpetrator.50(*)
The individual aiding and abetting doesn't means sharing the
principal's Mens rea, it is to know about the essential elements of the crime,
includes Mens rea of the perpetrator and make conscious decision to act knowing
that it is a support of committing a crime.51(*)
II. 2. The role of consent in
defining and proving rape
It cannot deny that a women's consent should be the
prerequisite for anything on her body. The definition of rape in international
criminal law presupposed a context of an armed conflict and in which victims
are under non consent attack where there is sexual violence over them with
their consent.52(*)
On the issue of consent as an element of the crime of rape the
reasoning of the judgments is frustratingly circular. Coercion and force were
held to be too narrow to be the central elements of crime of rape, as the
crucial principal common to national jurisdictions was the issue of sexual
autonomy and consent. The presence of force could be taken as evidence of non
consent, coercion was held to encompass most conduct which would negate
consent, and consent itself was to be defined in the context of the surrounding
circumstances. The choice of consent rather than coercion as the central
element of the crime of rape under international criminal law is problematic on
a theoretical as well as practical level. 53(*)
As demonstrated, with reference to the national law provision
it is considered possible to consent to the violent attack and it is
understandable that none of the crimes against humanity enumerated in article 3
of the ICTR statute required to prove non consent as element of the crime.
II. 3. The challenges of
prosecuting crime of rape and sexual violence
Many years ago, no attention was paid to the international
criminal prosecution of rape and sexual violence as international crime.
International criminal law officially recognizes sexual violence crimes, these
crimes largely were neglected in practice in international tribunals. Since the
establishment of the ICTR, there has been no consistent progress in
international prosecution of rape and sexual violence.54(*)
However, since Akayesu, ICTR prosecutors have been unable to
procure rape convictions due to a lack of evidence. Physical perpetrators, not
personally on trial, are unwilling to confess to committing acts of rape or
sexual violence at the ICTR. This is perhaps because in the Rwandan criminal
justice system, which was established post-genocide, perpetrators can be
charged with a first category offence, and subject to the death penalty if
convicted.55(*)
Also, rape in Rwanda has been noted as a difficult crime to
document because of a dearth of accurate eyewitness testimony, the
stigmatization of victims, worries of public shame among victims, and fears of
perpetrators still living with the victims.56(*)
Nonetheless, it is not impossible to collect evidence of
sexual crimes and successfully prosecute rape. The probability of effectively
documenting crimes of a sexual nature increases when trained female
investigators and interpreters, who are sensitive to victim trauma and who can
offer victims protection, are employed.57(*)
Also, the appointment of women in key positions in the ICTR
has assisted in the effective prosecution of crimes of sexual violence and
rape, and can continue to do so.
The crime of Rape historically has been characterized as a
private crime, committed in isolated and discrete cases. Viewed as an
incidental by product of war, sexual violence has been overlooked by the
international community in the past. Rather than an occasional act committed by
a delinquent soldier, the conflicts in Rwanda and the former Yugoslavia
demonstrate that rape and sexual violence in situations of armed conflict can
be systematic and integral to genocidal violence and an overarching political
framework; the acts often have no sexual element at all.58(*)
During these conflicts, rape and other forms of sexual
violence, such as forced nudity and torture, perpetrated against predominantly
female civilians were ordered, encouraged, and overlooked by superiors.
While widespread evidence of rape and sexual violence existed
in Rwanda, the initial treatment of crimes relating to sexual violence in the
ICTY and ICTR differed. For example, the UN resolution establishing the ICTY
specifically referenced sexual violence against Muslim women, although the
resolution creating the ICTR made no mention of the topic. Possible reasons for
the inconsistent response.
Since the establishment of the ICTR and ICTY there has been no
consistent progress in the international prosecution of rape and sexual
violence. There are however, areas in which improvement can be made. There may
also be some criticism of the Office of the Prosecution's work and the Office
of the Prosecution is able and willing to address those concerns.59(*)
The accounts of these crimes based on the witness's statements
available in the OTP database are disturbing. The OTP also knows that Rwandan
women are shy and tend not to talk about rape when interviewed by a male
investigator.60(*)
During the early of the ICTR, investigators received little or
no training with respect to the methodology of investigating widespread or
systematic crimes, genocide, and sex based 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.61(*)
Despite evidence that rape and other sexual violence was
widespread and was resorted to be part of the strategy of genocide, it has not
been easy to testify in Arusha for reasons to understand. Many such a painful
chapter in their lives, to relieve the trauma through their testimony and to
subject themselves to gravelling cross examination of such intimate aspects of
their lives. Many of them may have moved on their lives and established
families and may fear the unfortunate stigma associated with victims of sexual
violence may be especially seen to forget the past.62(*)
This problem of the prosecution on rape cases is also exist in
Rwandan prosecution, the concrete example that I found during the research
where judicial officers in charge of prosecuting rape and sexual violence
were unable to show evidences of rape to the accused. Those show us the unfair
of national public prosecution authorities in prosecuting which is the lack of
training relating to the prosecution of rape and sexual violence.
II. 4.
Joint Criminal Enterprise theory in sexual violence jurisprudence
Joint Criminal enterprise (JCE) is a form of individual
criminal responsibility for crimes where several individuals with a common
purpose embark on criminal activity that is then carried out either jointly or
by some members of the plurality of persons. And it is characterized by direct
or indirect participation in committing a crime, it is also required by the
plurality of persons in committing a crime, and the existence of common plan,
here the execution must involve in the commission of crime.63(*)
In a recent case currently on appeal at the ICTR, Prosecutor
v. Kajelijeli, it is possible that had prosecutors brought the relevant rape
charges under JCE theory, they could have procured a conviction. Prosecutors
charged the accused with rape and other inhumane acts as crimes against
humanity; both charges were pleaded under individual and command responsibility
statutory provisions.64(*)
The disappointing outcome, despite convincing evidence linking
the accused to crimes of rape and sexual violence, was an acquittal. The
accused Juvénal Kajelijeli, was the bourgmestre of Mukingo Commune in
Ruhengeri Prefecture. In his capacity, he exercised authority over subordinates
including members of the police forces, Interahamwe youth militia, and
civilians. The prosecution brought forth information that the accused and
various governmental officials «conspired among themselves to work out a
plan to exterminate the civilian Tutsi population and eliminate members of the
opposition, so that the Mouvement Révolutionnaire National pour le
Développement (MRND) could remain in power. 65(*)
Specifically, the accused was found to have made speeches
inciting the audience (predominantly MRND members and Hutus) to assault, rape,
and exterminate the Tutsis. In the indictment, the prosecution charged that the
accused commanded, organized, and supervised attacks within Mukingo Commune
during the genocide, during which Tutsi men, women, and children were attacked,
abducted, raped, and massacred. Kajelijeli failed to take any steps to stop the
rape and sexual assault of Tutsi females that followed from his orders.
66(*)
Trial Chamber in ICTR acquitted Kajelijeli on all rape and
sexual violence charges for lack of appropriate evidence to prove the charges.
On the charge of rape as a crime against humanity, the court found the
prosecution failed to prove beyond a reasonable doubt that the accused was
individually criminally responsible for planning, instigating, ordering,
committing, or otherwise aiding and abetting in the planning, preparation, or
execution of the rapes that occurred; in other words, there was no evidence
directly linking the accused to the rapes committed. In terms of command
responsibility, the chamber found that members of the Interahamwe committed the
majority of the rapes when Kajelijeli was not personally present, and it was
never established that the accused actually ordered the rapes. His instructions
were more generally to kill or exterminate.67(*)
Furthermore, the chamber found it impossible to infer that the
accused knew or had reason to know that Interahamwe militia was committing the
rapes. On the count of other inhumane acts of sexual violence as crimes against
humanity, the trial chamber similarly found evidence to be lacking. The chamber
did found that the standard for liability of other inhumane acts was met by
acts constituting a serious attack on the human dignity of the Tutsi community
as a whole. The chamber said that cutting a woman's breast off and licking it,
and piercing a woman's sexual organs with a spear are nefarious acts of
comparable gravity to the other acts listed as crimes against humanity, and
these acts were committed in the course of a widespread attack upon Tutsi
civilians.68(*) Kajelijeli
was not held liable, however, under the individual responsibility charge
because the chamber found no evidence that the accused was present or gave any
direct order for these acts to be committed. As in the rape as a crime against
humanity charge, the general orders to kill and exterminate, combined with a
lack of physical presence during the acts, and were insufficient to prove
command responsibility of the accused under other inhumane acts.69(*)
Given the fact set and the substantial evidence of actual
rapes occurring in Mukingo Commune during the genocide, the prosecution could
have utilized Category 3 of JCE theory in this case. Although the prosecution
asserted that the accused, in his position of authority, acted in concert with
others and participated in the planning, preparation, or execution of a common
scheme, strategy, or plan to commit the crime listed, the indictment did not
clearly set forth any JCE theory.
Although JCE Category 1 may have been inapposite in
Kajelijeli, given the lack of a clear agreement to commit rapes between the
accused and the physical perpetrators, JCE Category 3 seems appropriate to the
prosecutor's case for individual responsibility. In this case, rape and other
inhumane acts of sexual violence go beyond the proven intended criminal object
(to kill and exterminate Tutsis).
However, there was widespread rape in Mukingo Commune, where
Kajelijeli exerted direct control over his subordinates. It seems likely that
the prosecution could have proven particularly had it worked with investigators
to do so from the outset that rape and sexual violence were objectively natural
and foreseeable consequences to the object of the JCE and that the accused
himself was aware that these crimes would follow from the criminal object to
kill and exterminate.70(*)
The accused was more than an aider or abettor because he
actually had the criminal intent to kill or exterminate; he was more than a
co-conspirator because the crimes were actually carried out. Although
Kajelijeli's criminal intent in terms of individual responsibility under JCE
theory could likely have been proven, whether this intent could be extended to
hold the accused liable under JCE for his failure to prevent or punish his
subordinates from committing foreseeable rape and sexual violence crimes
remains questionable.
II. 5. Targeted Application for
maintaining Legitimacy
Given the prevalence of rape and other forms of sexual
violence during the Rwandan genocide, those in positions of power who could
have controlled and prevented such crimes from occurring should be held
responsible. As international criminal law is beginning to recognize, rape and
sexual violence in situations of armed conflict do not represent isolated or
incidental occurrences; rather, they constitute grave and serious crimes used
to effect genocide and widespread violence against populations.
These crimes produce long-term consequences, not only for the
victims, but also for their surrounding communities. While the definitions of
rape and sexual violence first pronounced in Akayezu and reaffirmed recently in
Muhimana are broad and encapsulate the integral aspects of sexual violence
crimes in war situations, the ICTR jurisprudence presents a somewhat weak
record of convictions for these crimes. Given the frequency with which
prosecutors now bring rape charges, it is necessary that they consider and
investigate whether the evidence lends itself to the use of JCE
theory.71(*)To remain
consistent with the broader goals of criminal law, prosecutors and courts alike
should be careful to limit the use of this theory to situations in which an
accused is truly culpable.
Learning from the failures to procure sexual violence
convictions in cases such as Kajelijeli, prosecutors at the ICTR began pleading
these crimes under JCE theory to hold high-level criminals culpable. For
example, in the amended indictment filed with the Trial Chamber III,
Prosecutor v.Karemera, prosecutors charged top government officials
with the crime of rape, both as an element of complicity in genocide and as a
crime against humanity.
As a part of the widespread or systematic attacks perpetrated
by the three accused, the militia raped Tutsi women and girls in specified
prefectures, and these rapes were the «natural and foreseeable consequence
of the object of the joint criminal enterprise to destroy the Tutsi as a
group.72(*)
The indictment also states that all three accused were
individually responsible because they were aware that rape was a natural and
foreseeable consequence, given the widespread nature of the crimes, and they
knowingly and willfully participated in that enterprise nonetheless. Under
command responsibility, the indictment asserts that the accused had the
capacity to halt or prevent such crimes and failed to do so, or to punish those
that committed them.73(*)
Currently, in Karemera trial, JCE Category 3 applies, as
opposed to JCE Category 1, if there is no convincing evidence of the accused
intent to commit the specific crimes of rape or sexual violence. According to
experience at the ICTY, the prosecution has a high burden of proof and, in
order to prevail, should proffer evidence of the following for each accused:
the existence of a plurality of persons; the existence of a common purpose
(i.e., JCE) and a common plan under that JCE; the accuser's participation and
specific role in the JCE; the intent of the accused to participate in the JCE;
and the goal of the JCE.74(*)
In other words, evidence in Karemera that each accused, acting
in concert with others, participated as a leader and with the requisite intent
to further the purpose of destroying the Tutsi as a group in a specific way
seems necessary for the prosecution to succeed. Under JCE Category 3, the
prosecution needs to prove that rape and sexual violence were a natural and
foreseeable consequence of that JCE to destroy the Tutsi as a group.75(*) While the JCE theory offers
exciting possibilities for prosecutors at the ICTR to bring sexual violence
charges, increased use of the theory has its draw backs.
However, there are ways to limit the use of JCE that address
some of these drawbacks. Only the most culpable, or those high-level officials
whom aster minded the genocide and oversaw its execution, should be prosecuted
and held liable under JCE theory. But for their criminal purposes and plans,
the crimes of genocide and against humanity arguably would not have occurred in
Rwanda in 1994, despite longstanding ethnic tensions.76(*) Richard Goldstone, the first
Chief Prosecutor at the ICTR, asserts that ascribing blame to leaders can, in
fact, be very important to healing a community: it avoids collective guilt on
the part of an ethnic, or other, group, and it allows community members to
separate themselves from wrongdoing. In addition, holding genocidal masterminds
liable and sentencing them to severe prison terms serves to incapacitate them
and to specifically deter them from committing future crimes; it also generally
deters future similar crimes among others.77(*) Another way of limiting the use of JCE theory
appropriately is to require that an accused made a substantial contribution to
the crime charged.
The role played by the accused in the JCE is important in
determining the size of a contribution: only those perpetrators who were
heavily involved in a JCE and closely linked to it should be prosecuted and
convicted on these grounds. In practice, this reinforces the idea that
high-level criminals be targeted when using JCE theory, because they presumably
playa substantial part in designing, conveying, and overseeing criminal plans
with requisite intent and particular purposes in mind. The substantial
contribution limitation also satisfies the retributive theory of punishment in
that it punishes the individual most heavily responsible for a crime, even if
that individual did not physically perpetrate the crime. Future members of
society will be deterred from making substantial contributions to major
criminal plans, and those convicted will be unable to do so.78(*)
Given the relatively high evidentiary burden to prove crimes
using JCE theory even under Category 3 its practical use should be narrowly
tailored. Indictments should be pled with sufficient specificity and supported
by evidence such that JCE allegations do not become all-encompassing in nature
or a fallback strategy merely because the prosecution is unlikely to succeed on
other grounds.
With regards to rape and sexual violence specifically, it is
especially important that prosecutors do not indict, and judges do not convict,
on JCE grounds if cases lack sufficient evidence to meet the evidentiary
burdens; otherwise, problems discussed in prosecuting under more traditional
statutory theories will resurface. The result will be failure to convict on
sexual violence grounds and failure to accurately reflect the rapes that
occurred during the genocide in ICTR case law.
Future jurisprudence at the ICTR, ICC, and other international
criminal courts should reflect effective use of JCE theory with regard to
crimes of rape and sexual violence. The theory should be targeted at high-level
officials who made substantial contributions to the JCE in order to maintain
consistency with traditional criminal law theories. 79(*) Still, to uphold legitimacy at
the ICTR and in international criminal law, prosecutors and courts should keep
in mind the drawbacks of over-utilizing the JCE theory and thus narrowly tailor
its application. As a general principle, courts should find those in control
who ordered crimes in situations of armed conflict and genocide most culpable.
If rape and sexual violence were a part of that criminal intent, or closely
resulted from it, then liability should follow. 80(*)
II.6. ICTR weakness in conviction
for crime of rape and sexual violence
The poorness in the conviction for sexual violence is
sensitive in that trend of the jurisprudence in this field over the past years
strikes a blow to the credibility of the case set up by the prosecution. Among
the poor results that the ICTR has come across; initially crimes of rape and
sexual violence were considered as secondary crimes; there has been also low
conviction rate for sexual violence and rape. There have been also acquittals
like in Ntagerura and Bagambiki; judges noted that the prosecutor had failed to
establish guilty beyond reasonable doubt.81(*) The accused Niyitegeka also was acquitted of rape as
crime against humanity, but guilty of crimes against humanity, other inhuman
acts, specifically acts of sexual violence. The trial chamber in Kajerijeri
case acquitted him on all rape and sexual violence charges for lack of
appropriate evidences directly linking the accused of the rape committed, to
prove that the accused was responsible for planning, ordering, instigating,
committing or o preparation or execution of the crime of rape.82(*)
Overall, I believe the contribution of the ICTR to the
development of international criminal law has been an important one and I
believe there is more to come. For example, ongoing cases at the moment
include: the first woman accused of rape before an international tribunal; a
trial in which the accused was a popular Rwandan singer; and the Media case,
where three leaders of the Rwandan media were convicted for genocide, which is
currently on appeal. In addition, I have no doubt that lower profile cases will
also contribute substantially to the further development of the law. 83(*) As it complies with the
requirements of international law. In future jurisprudence of ICTR will help
international court to prosecute rape and sexual violence as violation of
international humanitarian law. The jurisprudence as it
now stands with a growing string of acquittals for rape will, in fact, do the
opposite. The record of this tribunal in history will not only minimize
responsibility for the crimes against women, but will actually deny that these
crimes occurred. A reader of the ICTR jurisprudence will be left mistakenly
believing that the mass rapes had little or nothing to do with the genocidal
policies of their leaders.84(*)
There is a reason why many of the ICTR judgments do not
contain rape convictions and why the number of rape acquittals is double the
number of convictions. Over the past decade, sexual violence crimes at the ICTR
have never been fully and consistently incorporated into the investigative and
prosecution strategy of the Prosecutor's Office over the past decade. For the
past nine years, no comprehensive prosecution strategy or precise work plan to
properly document and bring the evidence of sex crimes into the courtroom has
been consistently pursued.
This is not to say that the Prosecutor's Office has neglected
this issue entirely it has not.
Approximately half the cases that the court will hear contain
allegations of sexual violence.
There have been some commendable efforts made at various
periods, but the problem is that they have not been consistently pursued. The
squandered opportunities, the periods of neglect and the repeated mistakes have
caused major setbacks to effective investigations and prosecutions of sexual
violence crimes.85(*)
The lack of sustained attention by the leadership has in turn
resulted in a weak institutional capacity within the Prosecutor's Office to
investigate effectively and to develop the evidence to prosecute these
crimes.86(*)
Some cases have moved forward without rape charges, sometimes
even when the prosecutor is in possession of strong evidence. Other cases with
rape charges have come to trial without adequate investigations to ensure that
the necessary evidence had been collected. The Prosecutor's Office has never
articulated and pursued a consistent prosecution strategy, including how this
crime fitted into the genocidal policies of the leaders, nor has it
consistently employed effective investigative techniques to fully document the
crimes against women. The four prosecutors who have held this office since 1994
have adopted a variety of approaches to this issue. As a result, there has
never been one identified work plan pursued consistently by all investigators
and trial lawyers in putting together their cases on this issue over the nine
years of the court's existence.87(*)
Sexual violence against women and girls in situations of armed
conflict or systematic persecution constitute s a clear breach of international
law. Perpetrators of sexual violence can be convicted for rape as a war crime,
a crime against humanity, or as an act of genocide or torture, if their actions
meet the elements of each.
Leaders in positions of command responsibility who knew or had
reason to know of such abuses, and who took no steps to stop subordinates who
committed sex crimes, can also be held accountable.88(*) It is therefore part of the
mandate of the ICTR, and the work of the prosecutor, to investigate effectively
and prosecute this crime with the same seriousness as other international
crimes. Accountability for the sexual violence should be integrated into
virtually all the cases, given its widespread and systematic use during the
Rwandan genocide.
At the prosecutorial level, there was no strategy articulated
for the comprehensive inclusion of rape charges in all the cases, and Goldstone
neglected to include rape in most of the early ICTR indictments.89(*)
Much of the prosecutor's strategy concentrated on more arrests
and indictments. The prosecutor's plan to add some 100 new arrests was steadily
scaled back as it became clear that the criteria for selection of suspects were
poorly conceived and targets of investigation were not prioritized by relative
importance or likelihood of arrest, leading to misallocation of human and
material resources. 90(*)
Sexual violence investigations and prosecutions suffered
greatly during prosecutor Del Ponte's time. The momentum generated during
prosecutor Arbour's time dissipated after the first year. There was a steady
decline in the number of new indictments that contained sexual violence
charges, as well as a lack of commitment to adequately develop the evidence in
cases where rape charges had previously been included.91(*)
In our analysis we found the Cyangugu case where despite
trial testimony about rape, ample possession of evidence and repeated public
promises, the prosecutor never added the rape charges. Another is the trial of
three media executives, known as the Media trial, which gave scant attention to
the vicious gender propaganda that explicitly encouraged sexual and lethal
attacks on Tutsi women. In a bid to comply with pressure to speed up the
trials, prosecuting teams were encouraged to cut unnecessary charges. Sexual
violence charges were seen to be in that category.
The dependence on the choice of prosecutor as the determining
factor for whether sexual violence charges will be brought is problematic. It
signals the need for international justice institutions to be mandated
explicitly to ensure that attention is given to the effective investigation and
prosecution of sexual violence crimes.
Proper investigations are the foundation to the success of
every case. The one of ICTR problem in prosecuting rape, it is the lack of
consistent attention to this issue by the prosecutor's investigations division.
Sexual violence investigations at the ICTR have generally been poor in quality
and are often not trial-ready when handed to prosecutors.
Another problem with witness statements is that most are
presented in narrative form, so the attorney cannot distinguish between
observations and hearsay. In some cases, attorneys have not come to investigate
in Rwanda where the crime committed. This defeats the purpose of having an
investigations division. Responsibility for this problem lies with the chief of
investigations, who has three commanders of investigation under whom the teams
are organized. And we observed that the connection of OTP of the ICTR and
Rwandan prosecution was low.
II.7. Prosecuting of rape
with inadequate evidence
One of the challenges investigators face in collecting sexual
violence evidence is a lack of skills in how to obtain such evidence.
Investigators receive no training on interviewing methodology for rape victims,
and the majority of the investigators are male. Often investigators come from
backgrounds where they have not had any experience with this issue, or they
believe this is not a crime that deserves serious attention. Many
investigators, though fully equipped with the necessary skills to investigate
cases, lack training and direction on how to elicit information about sexual
violence from witnesses. Generally, when investigators start working at the
ICTR, they receive little or no systematic training focused on their
substantive responsibilities. In particular, there is no standard training to
develop skills in sexual violence investigations, and all knowledge is based on
individual experience and initiative developed on the job.92(*)
The years of varying levels of neglect with regard to
collecting sexual violence evidence have meant that there are gaps in
presenting the evidence at trial. At the prosecution level, there are concerns
among trial lawyers that they do not have strong evidence to proceed with rape
charges in some cases. This is not the situation for all cases, but it is true
particularly for the important cases, such as those of top military and
government officials, where the command responsibility link is more difficult
to prove. This leaves the trial lawyers in the difficult position of either
deciding to drop rape charges as the case begins to move forward, or
prosecuting the case with weaker evidence, risking an acquittal. Unless more
work is done by the Prosecutor's Office, what we are likely to see are rape
convictions at the level of the local authorities, but not at the top levels of
government and military.
There are some committed investigators and lawyers in the
Prosecutor's Office who are trying to address this issue, but their efforts
reflect an individual initiative rather than a comprehensive institutional
commitment. The Cyangugu case is one example where rape charges should
have been brought, but never were, even though the prosecutor had evidence.
This example highlights not only the lack of transparency and accountability in
the prosecutorial decision- making process at the ICTR, but also the lack of
commitment to justice for rape victims. At the outset, no sexual violence
charges were included in the Cyangugu case. However, in 1999, around
the time that the sexual assaults team was making a strong push to collect
evidence of sexual violence, the Prosecutor's Office came across a number of
statements by rape victims.93(*) The statements of these women contained strong
evidence, particularly against military commander Samuel Imanishimwe,
who had not only raped women himself, but also killed a woman by inserting a
pistol into her vagina and shooting her to death.94(*)
In our research, we analyze that in that case, the evidence
to prosecute rape was available. The prosecution would have only needed to
formally amend the indictment to put the accused on notice. Unfortunately,
rather than pressing to retain the amended indictment in the interests of
justice, the prosecutor opted to withdraw the application.
In general, the nation office of the prosecution should be
reformed in order to prevent the culture of impunity; agent of Rwandan
prosecution in charge of prosecuting rape should be trained to the prosecuting
rape and sexual violence, we have seen that Rwandan prosecutors do not have
knowledge in prosecuting rape and do not know how to collect evidence of rape.
CHAPTER III. MECHANISMS FOR
PROSECUTING THE CRIME OF RAPE AND SEXUAL VIOLENCE
This chapter deals with
legal mechanisms for adjudicating rape and sexual violence in ICTR and in
Rwandan jurisdictions.
After having seen the
gravity of the crimes committed in 1994 in Rwandan genocide, the UN Security
Council in its resolution 955 created the International Criminal Tribunal for
Rwanda (ICTR) with its statute to prosecute crimes like genocide, crime against
humanity and violation of article 3 common to the Geneva Convention and
Additional Protocol II. These crimes include rape and sexual violence. The
government of Rwanda adopted legal mechanisms used to punish those crimes based
on cases adjudicated in ICTR for rape and sexual violence, and for preventing
the culture of impunity.
Significantly, as discussed above, both international sexual
crimes and domestic crimes of sexual violence can be prosecuted in national
courts, assuming the amended penal code has to recognize war crimes, crimes
against humanity and genocide in its provisions.
III.
1. Mechanisms to the International Criminal Tribunal for Rwanda
The ICTR mechanisms for prosecuting rape cases should be based
on its statute and its adjudicated cases as jurisprudence. Because ICTR. In general, Rape is only mentioned
twice in the Statute of the ICTR, under Article 3 on Crime against Humanity and
under Article 4 on Violations of Article 3 Common to the Geneva Conventions and
of Additional Protocol II, as a criminal act, listed under sub (e). This does
not mean that rape can only be prosecuted under these two provisions. The
Statute does not explicitly mention rape as a constituent act of genocide.
Based on the case law of the ICTR, it is totally clear that rape is an integral
part of genocide. This is proved by the convictions of rape constituting
genocide, starting with the Akayezu conviction. This means that mechanisms to
prosecute rape cases and sexual violence should be based on its case law like
Akayezu judgment, because the crime of rape is not
clearly defined in ICTR statute.
III.2. ICTR Concurrent
Jurisdiction with other national courts
This is a mechanism used by the ICTR to prosecute genocide
cases in different courts especially to the Rwandan jurisdictions.
The ICTR's concurrent jurisdiction with national courts,
particularly Rwanda's, created a situation where multiple courts could claim
jurisdiction over a particular case. Concurrent jurisdiction describes any
situation where two or more national courts or at least one national court and
an international court have legal authority to adjudicate the same issue.
The Statute of the ICTR makes it clear that the Tribunal and
domestic courts, including those of Rwanda, share jurisdiction over genocide
cases. Article 8(1) of the Statute states that the International Tribunal for
Rwanda and national courts shall have concurrent jurisdiction to prosecute
persons for serious violations of international humanitarian law committed in
the territory of Rwanda and Rwandan citizens for such violations committed in
the territory of neighboring States.95(*)
This is an explicit recognition that cases relating to the
1994 Genocide and falling within the stated territorial, temporal, and subject
matter jurisdiction can be heard in either domestic courts or at the
Tribunal.
III.3.
The ICTR rules 11bis of procedure and evidence
The ICTR Rules of Procedure and Evidence provide a mechanism
whereby the Tribunal may transfer a case to a national jurisdiction. Rule
11bis stipulates the conditions under which the Tribunal may transfer
an indictment to another court. The rule outlines, inter alia, to which
suspects it applies, to which states it applies, certain judicial and due
process thresholds such states must meet, and monitoring and revocation
mechanisms. In considering transfer requests, the Tribunal has been mostly
concerned with ensuring the defendants' right to a fair trial in the transfer
country. If the Prosecutor wishes to transfer the case of an indicted defendant
to a national jurisdiction, she must submit a request to the President of the
ICTR, who in turn designates a Trial Chamber to conduct a hearing on whether
the transfer is acceptable.96(*)
III.4. Mechanisms to Rwandan
Law
Rwandan law provides for the prosecution of rape under its
criminal law. Rwanda also is obligated to prosecute rape under the
international conventions that it has ratified, the Geneva Conventions and
their Additional protocols and, for reasons outlined above, the Genocide
Convention. Rape is a crime under Article 196 of the 2012 Rwandan Penal Code,
and is punishable according to different categories.97(*) There have been attempt to
prosecute rape and sexual violence in Rwanda under national laws basing on
different contexts such as; organic law No. 27/2001 of 28/04/2001 establishing
rights and protection of children against violence, the law No.13/2008 of
19/05/2008 establishing Gacaca courts in Rwanda, the law No. 03/2009/ of
26/05/2009 concerning the transfer of cases to the Republic of Rwanda from the
International Criminal Tribunal for Rwanda and other states and rape also is
provided under the law No..01/2012 0f 02/05/2012 instituting penal code. All
those laws were enacted with specificity and are written in different books.
Therefore, each law is to be analyzed below.
During the Rwandan genocide in 1994, women were subjected to
brutal forms of sexual violence. Women were individually raped, gang- raped
with objects such as sharpened sticks or gun barrels, held in sexual slavery or
sexually mutilated. In most every case, these crimes were inflicted upon women
after they had witnessed the torture and killings of their relatives, and the
destruction and looting of their home.
III.4.1. Rape under the law No.
59/2008 of 10/09/2008 on prevention and punishment of Gender- Based Violence
This law has enacted this law after having seen many cases
related to rape and sexual violence, though, the law is in place and applicable
where offenders are apprehended, tried and seriously convicted there are still
rooms where a rapist can escape justice or innocent person can get convicted as
child rapist due to either ambiguity in law, the law which does not cover each
aspect of the violence against the child or insufficient means (human and
material) in pursuit of criminals.98(*) Women were raped or gang-raped repeatedly as they
fled from place to place. Others were held prisoner in houses specifically for
the purpose of rape for periods ranging from a few days to the duration of the
genocide.99(*)
Many years later, gender based violence along with other forms
of violence continue to dominate the landscape of Rwanda. HIV & AIDS and
extreme poverty aggravate the impact of violence on communities, and contribute
to violence. Rwanda has drawn up strong human rights legislation and as well
is a signatory to specific international conventions which under bind the lives
of women and children. These mechanisms should ensure that all citizens can
live an existence free of physical and sexual abuse, with access to property
rights, and to all of the medical, educational and judicial systems that are in
place in the society. 100(*) The punishment in this law depending on the victim's
age. It has also provided for the definition of rape as «any sexual act
with a child whatever means or methods used is considered as rape.101(*) In most countries rape is
defined as all act of sexual penetration regardless of its nature committed
against another person by violence, constraint, menace or surprise. The absence
of a clear definition of rape under Rwandan law makes its qualification
subjective and in most cases leaving some cases not tackled.102(*)
Due to the weakness of the definition of rape under Rwandan
law there have always been differences in the various judgments. This crime
which may depend on the appreciation of the prosecutors or judges handling this
case may depend on how they appreciate evidences and testimonies at hand.
However, this may cause inconsistencies in rendering justice.
In Rwandan post genocide, the crime of rape and sexual
violence was terrible. It was continued to be committed, that's why this law
created for dealing with rape cases and related crimes for prosecuting them.
Basing on the gravity of this crime the government took measures of creating
this law to punish those crimes, because recently there were no law punished
crimes based on gender.
III.4.2. Rape under the law No.
13/2008 of 19/05/ 2008 establishing the organization competence and functioning
of Gacaca in Rwanda
After having seen the gravity of crimes committed during 1994
Rwandan genocide, the government enacted Gacaca courts to decrease big number
of prisons of genocide who were waiting to be adjudicated. This law gave the
power to Gacaca courts to prosecute those who committed genocide and related
crimes as it was provided in ICTR Statute. And Gacaca courts classified in
different categories according to their gravity.
Through the 1994 genocide in Rwanda, rape was used as a
weapon, a method to inflict sufferings on victims and to dehumanize them. The
crime of Rape committed that time was accompanied by torture of objects
brutality.
Concerning the crimes of rape and acts of torture committed on
sexual parts during genocide, it is also the one of the reasons sexual torture
was highly considered to the extent of putting it in the first
category.103(*)
This category according to the mentioned in organic means any
person who committed or was an accomplice in the commission of a offence that
puts him or her in the category of planners or organizers of genocide at the
national level as leaders.104(*)
This law, specifically on the provision of the sexual torture,
seems to be vague on one hand because it does not defined rape and sexual
torture. The implication to national law is that crimes provided in the law
established Gacaca were the same as those provided in ICTR statute.
III.4.3. Rape under the
law n° 01/2012/ of 02/05/2012 instituting Rwandan Penal Code
Rape is a crime provided in
Article 196 of the law instituting Rwandan Penal Code. According to this law
rape is defined as «causing another person to engage in a non-consensual
sexual intercourse by using force, threat or trickery». 105(*) This penal code also
provided all crimes punishable in ICTR like genocide, crimes against humanity;
it means that Rwandan law started to be developed based on ICTR jurisprudence
date. But there is a gap relating to the definition, where the validity of the
crime of rape based on non consensual intercourse. According to our analysis,
rape can be committed by using other ways not only using sex. But the law does
not provide any other way to commit a crime of rape. That is a problem
criticized during our research. And we suggest to the Rwandan legislator to
revise the provisions relating to the crime of rape and sexual violence.
III.4.4. Organic law
n°03/2009/ of 26/05/2009 concerning the transfer of cases from ICTR to
Rwandan jurisdictions
The government of Rwanda implemented Organic Law No. 11/2007
regulating transfer of cases to the republic of Rwanda, as part of a continuous
effort to align Rwandan law dealing with transfer cases from the ICTR with the
ICTR Statute itself in order to facilitate the successful transfer of cases
from the ICTR to Rwandan courts.106(*)
The transfer law created a dual system in Rwanda, in which
certain legal provisions, procedures, and guarantees apply specifically to
cases transferred from the ICTR or other states to Rwanda but not to cases that
originate in the domestic system.107(*) Contrary to genocide cases that originate in Rwandan
courts, 108(*) those
that are transferred from the ICTR are heard exclusively by the High Court in
the first instance and by the Supreme Court on appeal.
This is explores the historical and legal background of the
ICTR and applicable transfer jurisprudence. Specifically, this section
discusses the post-genocide situation of Rwanda and its role in the formation
of the ICTR, the ICTR's mandate in relation to courts of national jurisdiction,
the Tribunal's and Rwanda's transfer regimes, and, finally, how the ICTR has
applied its transfer requirements to Rwanda to date. This history illustrates
how, despite Rwanda's efforts at creating a legal regime compliant with
ICTR standards and its own national interest in adjudicating these
genocide cases, the Tribunal continues to insist that the Rwandan system falls
short of meeting its stringent transfer requirements.109(*)
The International Criminal Tribunal for Rwanda's (ICTR or
Tribunal) Rule of Procedure and Evidence 11bis allows the Tribunal to transfer
accused persons to domestic courts in order to expedite the hearing of the
thousands of genocide cases still waiting on the ICTR's overloaded docket. So
long as certain baseline requirements are met, Rule 11bis, on its face, does
not distinguish between domestic Rwandan courts and other jurisdictions.
However, despite granting requests for transfer to other countries' courts, the
Tribunal has repeatedly denied applications for transfer to Rwanda
notwithstanding numerous requests. Further, behind such requests lies the
pressing need to resolve all outstanding cases before the Tribunal's looming in
2013 termination date.
This Note explores the requirements for a successful transfer
to a domestic jurisdiction set forth in Rule 11bis and how the Government of
Rwanda has labored, through legislated judicial reform, to meet those
requirements. After analyzing the history and founding principles behind the
formation of the ICTR, the Note then explores how the Tribunal has applied the
11bis requirements for transfer applications to countries other than Rwanda and
to Rwanda itself, as well as the International Criminal Tribunal for the
former-Yugoslavia's (ICTY) application of the Rule.
Finding an inconsistent application of the Rule between
applications for transfer outside Rwanda and to Rwanda itself, the note offers
a more comprehensive balancing test that the ICTR should consider when
determining whether to transfer cases to domestic courts. Finally, this Note
argues that in weighing countervailing judicial interests expressed in the
formation of the ICTR against specific due process concerns, the Tribunal may,
in specific cases, be able to transfer cases to Rwanda, thus contributing to
the overall interests of justice and the utilitarian goal of unloading the
Tribunal's docket.
The Rwandan jurisdictions should apply the international law
in its legal texts, which should be also a mechanism to improve national law in
prosecuting rape cases.
During our research we have seen that the Rwandan organ of
prosecution have some unfairness in prosecuting the crime of rape for example
we found where the police officers in charge of investigations and collecting
evidence who are not qualified because of lack of training related to the crime
of rape and sexual violence. How can someone can be investigator without know
the procedure to make investigations? First of all prosecutors should be
trained, because the lack of skills of prosecution it causes impact to National
public prosecution authority. The government should train investigators in
related to the procedure used in preparing investigations and evidence, and it
should recruit lawyers for preparing future qualified investigators.
III.5.
Consequences of rape in Rwanda
Although the exact number of women raped will never be known,
testimonies from survivors confirm that rape was extremely widespread and that
thousands of women were individually raped, gang-raped, raped with objects such
as sharpened sticks or gun barrels, held in sexual slavery or sexually
mutilated. These crimes were frequently part of a pattern in which Tutsi women
were raped after they had witnessed the torture and killings of their relatives
and the destruction and looting of their homes.
According to witnesses, many women were killed immediately
after being raped. Other women managed to survive, only to be told that they
were being allowed to live so that they would "die of sadness." Often women
were subjected to sexual slavery and held collectively by a militia group or
were singled out by one militia man, at checkpoints or other sites where people
were being maimed or slaughtered, and held for personal sexual service.
110(*)
The militia would force women to submit sexually with threats
that they would be killed if they refused. These forced marriage, as this form
of sexual slavery is often called in Rwanda, lasted for anywhere from a few
days to the duration of the genocide, and in some cases longer. Rapes were
sometimes followed by sexual mutilation, including mutilation of the vagina and
pelvic area with machetes, knives, sticks, boiling water, and in one case,
acid.111(*) Throughout
the world, sexual violence is routinely directed against females during
situations of armed conflict. This violence may take gender-specific forms,
like sexual mutilation, forced pregnancy, rape or sexual slavery. Being female
is a risk factor; women and girls are often targeted for sexual abuse on the
basis of their gender, irrespective of their age, ethnicity or political
affiliation.112(*)
Rape in conflict is also used as a weapon to terrorize and
degrade a particular community and to achieve a specific political end. In
these situations, gender intersects with other aspects of a woman's identity
such as ethnicity, religion, social class or political affiliation. The
humiliation, pain and terror inflicted by the rapist are meant to degrade not
just the individual woman but also to strip the humanity from the larger group
of which she is a part.113(*)
The rape of one person is translated into an assault upon the
community through the emphasis placed in every culture on women's sexual
virtue: the shame of the rape humiliates the family and all those associated
with the survivor. Combatants who rape in war often explicitly link their acts
of sexual violence to this broader social degradation.
In the aftermath of such abuse, the harm done to the
individual woman is often obscured or even compounded by the perceived harm to
the community. During the Rwandan genocide, rape and other forms of violence
were directed primarily against Tutsi women because of both their gender and
their ethnicity. Regardless of their status- Tutsi, Hutu, displaced,
returnees-all women face overwhelming problems because of the upheaval caused
by the genocide, including social stigmatization, poor physical and
psychological health, and unwanted pregnancy and increasing of
poverty114(*).
In Rwanda, as elsewhere in the world, rape and other
gender-based violations carry a severe social stigma. The physical and
psychological injuries suffered by Rwandan rape survivors are aggravated by a
sense of isolation. Rwandan women who have been raped or who suffered sexual
abuse generally do not dare reveal their experiences publicly, fearing that
they will be rejected by their family and wider community and that they will
never be able to reintegrate or to marry. Others fear retribution from their
attacker if they speak out.
Often, rape survivors suffer extreme guilt for having survived
and been held for rape, rather than having been executed.
In addition to the social and personal trauma resulting from
the injuries suffered from sexual violence, women are also facing terrible
economic difficulty. As a result of the genocide, many women lost the male
relatives on whom they previously relied on for economic support and are now
destitute. Women survivors are struggling to make ends meet, to reclaim their
property, to rebuild their destroyed houses, and to raise children: their own
and orphans. Some Hutu women, whose husbands were killed or are now in exile or
in prison accused of genocide, are dealing with similar issues of poverty as
well as with the recrimination directed at them on the basis of their ethnicity
or the alleged actions of their relatives.115(*)
The government has initiated a legal commission to address
these issues and to introduce legislation to allow women to inherit equally
with men, but the reforms are expected to take a long time. Rwandan survivors
of sexual violence are particularly troubled by the lack of accountability for
the abuse they suffered. They want the perpetrators of the violence against
them to be held responsible.
However, the Rwandan judicial system is facing systemic and
profound problems that make the likelihood of justice, for both the genocide
perpetrators and their victims, a remote possibility. It is clear that rape
victims face specific obstacles, including that police inspectors documenting
genocide crimes for prosecution are predominantly male and are not collecting
information on rape.
General Conclusion and
Suggestions
During the whole occupation of this study, we have done the
research on critical analysis on rape case in the jurisprudence of the ICTR and
its implications under Rwandan law, and we tried to analyze cases and establish
deeply the prosecution of rape in international criminal law.
In the first chapter, we dealt with general overview of the
crime of rape from which we define rape according to different sources, where
rape considered as the act of torture, sexual violence, sexual assault, sexual
slavery and sexual mutilation, etc. We have seen also how rape can be act of
causing great suffering or serious injury to bodily or mental physical hearth,
Referring to Akayezu case at the ICTR, which is the important case in
improvement and developments of international criminal law related to the crime
of rape and sexual violence.
We have seen also how rape and sexual violence prosecuted and
brought before international criminal tribunals. We tried to see different
international tribunals for example the ICTY, and ICTR with their jurisdictions
and their competence, based on their creation. We found that the ICTY as ad
hoc tribunal established in 1993 with competence of Prosecution of Persons
Responsible for Serious Violations of International Humanitarian Law Committed
in the Territory of the Former Yugoslavia since 1991.
Those crimes are Grave breaches of the Geneva Conventions of
1949, Violations of the laws or customs of war, Genocide and crimes against
humanity committed in the former Yugoslavia in that time. Then we have seen the
ICTR with its mission to prosecute persons responsible for crimes of genocide,
crimes against humanity and violation of the article 3 common the Geneva
conventions and Additional Protocol II, committed in Rwandan territory from
April 1, 1994 to December 31, 1994.
In this chapter also we tried to classify the crime of rape
and sexual violence in the ICTR and to show how rape characterize the elements
of each principle crime under ICTR for example rape as act of genocide, rape as
crimes against humanity and rape as violation of the article 3 common to the
Geneva convention and Additional Protocol II, and we tried to show how rape can
be taken as war crime when it is committed in internal or non internal armed
conflicts.
The second chapter was dealt with criticisms on ICTR cases
related to the crime of rape and we tried to analyze different judgments and
criticize them related to the crime of rape and sexual violence. We tried to
analyze the definition of rape adopted by the ICTR Trial Chambers which was
defined as a physical invasion of a sexual nature, committed on a person under
circumstances which are coercive. This chapter deals with criticisms on
different cases to show some weakness in prosecuting rape cases at the ICTR
jurisdictions.
The third chapter was dealt with mechanisms for prosecuting
the rape at the International Criminal Tribunal for Rwanda and in Rwandan
jurisdiction. In our research we tried to show laws applied to handle rape
cases in the International Criminal Tribunal for Rwanda and mechanisms to
prosecute the crime of rape and sexual violence.
After analyzing different cases in considering also the
brutality of the crime of rape, the definition of rape adopted at the ICTR on
rape cases and sexual violence jurisprudence can be incorporated and be applied
in Rwandan law especially in considering the definition of rape from ICTR trial
Chambers as highlighted in our suggestions of this work without leaving the
prejudice in the law books where it instead talk about the penalties other than
defining what rape means. This will help also the law makers to have a standing
point on the prosecuting and punishing the crime of rape and sexual violence.
According to our analysis, the law on rape and sexual violence
leave a gap in as far as what is meant by rape and instead goes for punishing
and we wonder the basis on which they rely on when prosecuting someone, thus
they should draw the ICTR definition in order to remove any bias in rendering
justice.
The sexual violence that took place during the genocide should
be fully investigated and where possible, prosecuted and punished. We suggest
that the government of Rwanda should ensure that all police inspectors receive
mandatory training on the issue of rape and other sexual abuse, including their
status as crimes punishable by law.
Specifically, we urge that police inspectors investigating
genocide crimes receive training to ensure that discriminatory attitudes about
female victims of sexual abuse do not prevent serious investigation of sexual
abuse or undermine its effective prosecution. A greater number of female police
inspectors should be hired and trained in order to collect rape testimonies in
a more systematic and effective manner.
The International Tribunal must fully and fairly investigate
and prosecute sexual violence. Rape, sexual slavery and sexual mutilation
should be recognized and prosecuted, where appropriate, as crimes against
humanity, genocide crimes, or war crimes.
The International Tribunal must step up its efforts to
integrate a gender perspective into its investigations. Previous investigative
methodology and procedures, which have failed to elicit rape testimonies, must
be amended. In particular, the Tribunal must ensure that the issue of violence
against women is treated with the same gravity as other crimes against humanity
within its jurisdiction. Investigations of rape and other forms of sexual
assault should be conducted by teams that include women investigators and
interpreters (preferably women) skilled in interviewing women survivors of
gender-based violence in the larger context of the atrocities which occurred.
Rape survivors should be given the requisite privacy and time
to relate the crimes committed against them to Tribunal investigators. The
investigators should also explain to interviewees the basic procedures of the
investigation
In Rwanda it is argued that the crime of rape and sexual
violence was lastly committed mainly against Tutsi women and was intended to
destroy in whole or in part a particular group. A definition of rape in such
cases should be drafted from previous judgments pronounced in ICTR of Akayezu
or even in Gacumbitsi case.
In Akayezu case, the crime of rape was defined as a physical
invasion, (it is important to note that the use of term invasion in the this
case permits the consideration of acts which do not involve sexual penetration
of the victim, such as committing oral sex against a woman or the anal rape of
a man; where a person is forced to rape another or made to inflict physical
invasion of sexual nature upon themselves, or where rapists committed
masturbation with and on the victim's body) of a sexual nature committed on a
person under circumstances which are coercive.
Furthermore, in drafting the definition of rape and sexual
violence basically in as far as the consent is concerned, rape was committed by
force or coercion such as that caused by fear of violence, duress, detention,
psychological oppression or abuse of power, against the targeted group or other
persons or where the accused takes advantage of coercive environment, in this
case victims of rape can't genuinely consent to sexual violence, therefore the
consent when trying genocide perpetrators should not be a point of defense. In
addition in Gacumbitsi case the appeal chamber noted that the prosecution can
prove non - consent beyond reasonable doubt by proving the existence of
forceful circumstances under which meaningful consent is not possible. In
addressing of issue of impunity, it is important to note that, Rwandan courts
are more preferable than international jurisdictions in what concerns
protection of victims defendants witnesses providing redresses.
BIBLIOGRAPHY
I.LEGAL INSTRUMENTS
INTERNATIONAL INSTRUMENTS
- ICTR Statute (International Criminal Tribunal for
Rwanda)
- ICTY Statute (International Criminal tribunal for the
former Yugoslavia)
- ICC (International Criminal Court)
- Rome statute of the International Criminal law
- Geneva Conventions of 12 August 1949, and Additional
Protocol II
NATIONAL INSTRUMMENTS
- Law No. 27/2001 of 28/04/2001 relating to the Rights and
Protection of the child against violence, Official Gazette, No. 23 of
1/12/2001
- Organic law No. 13/ 2008 of 19/ 05/ 2008 establishing
the organization, functioning and competence of Gacaca courts in
Rwanda.
- Law No. 59/2008 of 10/09/2008 on prevention and
punishment of gender based violence.
- Organic law No.01/2012 0f 02/05/2012 instituting penal
code, official gazette No. special of 14/06/2012.
II. CASES
- Prosecutor v. Akayezu, Case No. ICTR-96-4-T, Judgment,
September, 1998
- Prosecutor v. Kayishema and Obed Ruzindana judgment,
Case No. ICTR-95-1-A
- Prosecutor v. Gacumbitsi Case No. ICTR-2001-64-T,
Judgment June 17, 2004
- Prosecutor v. Kajerijeri , Case No. ICTR-98-44A-T,
Judgment and sentence, Dec. 1, 2003
- Prosecutor v. Kamuhanda, Trial Judgment, Case No.
ICTR-97-23-S, September4, 1998.
- Prosecutor v. Muhimana, Judgment and Sentence, Case No.
ICTR-95-1-1, April 28, 2005,
- Prosecutor v. Musema, Case No. ICTR-96-13- Judgment July
31, 2001
- Prosecutor v. Nahimana, Barayagwiza and Ngeze, Judgment,
Case No. ICTR-99-52-A, nov.2007.
- Prosecutor v. Niyitegeka, Trial Judgment, Case No.
ICTR-96-14-T, May 16, 2003.
- Prosecutor v. Semanza, Case No.ICTR-97-20, May 20, 2005.
III. BOOKS
- Antonio Cassese, International Criminal Law 181 (2003).
- Askin, K. D., Sexual violence in decision and
indictments of the Yugoslavia and Rwanda tribunals, Berkley J. int'l,
2003.
- De Brouwer, A.M.T., Supranational criminal Prosecution
of Sexual Violence, vol.20, The Hague, Intersentia, 2005.
- Odora, O., Rape and sexual violence in international law
ICTR contribution, vol.12, New Eng.J. Int'land Company.
- L.J. van den Herik, The Contribution of the Rwanda Tribunal
to the Development of International Law, Amsterdam: Vrije University,
2005.
- H. NIAMB, Judicial creativity at the international
tribunals, The Hague, May 2010.
- SHATTERED LIVES et al. , A role for Conspiracy Law in
International Tribunals, 88 Minn. L. Rev. 30, 54 (2003).
- Theodor Meron, "Rape as a Crime under International
Humanitarian Law," American Journal of International Law (Washington, D.C.),
vol. 87, July 1993.
- K. KRIANGSAK, International criminal law, Oxford
University Press Inc., New York, 2001.
- Schletana C. & Van Der Wolf W. The International
Tribunal for Rwanda: facts, cases, documents 240, eds. 1999.
IV. ELECTRONIC SOURCES
- Madeleine H. Morris, The Trials of Concurrent
Jurisdiction: The Case of Rwanda, Am. Dipl. (1998), available at
http://www.unc.edu/depts/diplomat/AD_Issues/amdipl_6/.html#national,
accessed on 08 /11/2012.
- Press Release, Human Rights Watch Applauds Rwanda Rape
Verdict: Sets International Precedent for Punishing Sexual Violence as a War
Crime (Sept.2, 1998), available at
http://www.hrw.org/press98/sept/rrape902.htm
, accessed on 10/12/2012.
- Prosecuting rape and sexual violence at the ICTR
available at http //www.law.harvard.edu /student/orgs/jlg/vol291/ accessed on
08/11/2012.
- Gender Based Violence training module. Available at
http://www.migeprof.gov.rw/IMG/doc/,
accessed on 20th November, 2012.
V. REPORTS
- Bonnet, "Le viol des femmes survivantes du
génocide du Rwanda,"; African Right, Rwanda.
- Prof. Eric D., Reports of
Orders, Decisions and Judgments 1998, Bruylant Bruxelles, vol. 1998
- Shattered L., Sexual Violence during the Rwandan
Genocide and its Aftermath, USA, September 1996 by Human Rights Watch
- E.E.E Mbela, Reaching out to survivors of violence, The
legacy of ICTR gender justice: Presentation made during ICTR' legacy Symposium,
December 2007.
- H. B. Jallow, Challenges of international criminal
Justice: Presentation herd in Arusha, 29 November 2007.
- MUSHINGWAMANA E., child rape
in Rwanda: an analytical overview.
Death, Despair and Defiance, pp. 748-797.
- Security Council Resolution 955 (1994), establishing the
International Tribunal for Rwanda, Article 3.
- Freedman, W.G., ICTR's jurisprudence on rape, Columbia
Journal of transnational law, vol.44, 2006.
* 1 Virginia Morris
and Michael Scharf, The International Criminal Tribunal for Rwanda , New York,
Transnational Publishers,1998, p.409
* 2 MUHIRE Y.,
Research methodology of law, ULK, Kigali, Faculty of Law, 2011, p.65
* 3 M.
Karagiannakis, `The Definition of Rape and Its Characterization as an Act of
Genocide', Leiden Journal of International Law 1999, Vol. 12, nr. 2, p.
488.
* 4 X,
«Categories of rape and sexual violence» available at
http://www.familycrisiscenters.org/site
accessed on 20/12/2012
5 Ibidem.
*
* 5 Ibidem.
* 6 X, The nation's
largest anti-sexual violence organization. Available at
http://www.rainn.org/get-information/types-of-sexual-assault/acquaintance-rape
accessed on 10/01/2013.
* 7 William D.,
«The lawyers who make house calls»
* 8Prosecutor v.
Akayezu, case No. ICTR 96-4-T, Judgment, September 1998, para.597.
* 9Ibidem.
* 10 Prosecutor v.
Akayezu, case No. ICTR 96-4-T, Judgment, September 1998, para. 690
* 11 Ibidem.
* 12
Ibidem.
* 13 ICC elements
of crimes, article 7(1)
* 14Coordination
of Women's advocacy, «mission on gender-Based War Crimes against Women and
Girls during the Rwandan Genocide: Summary of surveys and Recommendations, p
7.
* 15 W.G.
Freedman, ICTR's jurisprudence on rape , Columbia Journal of transnational law,
vol. 44 ,2006, p. 994
* 16 A. M. DE
Brouwer, Supranational criminal prosecution of sexual violence, vol.20,The
Hague,Intersentia, 2005,p.4
* 17Askin, K.D.
sexual violence in decision and Indictments of the Yugoslavia and Rwanda
Tribunals, printed in USA,1999
* 18 Security
Council Resolution 955 (1994), establishing the International Tribunal for
Rwanda, Article 3.
* 19 The
International Tribunal for Rwanda: facts, cases, documents 240 (C. Schletana
& W. Van Der Wolf, eds. 1999).
* 20 E.E Mbela,
Reaching out to survivors of violence, The legacy of ICTR gender justice:
Presentation made during ICTR' legacy Symposium, December 2007
* 21 Akayesu Trial
Judgment, op. cit, para. 437;
* 22The Prosecutor v. Akayezu,
ICTR Trial Chamber Judgment, 2 September 1998, par. 731.
* 23 The
Prosecutor v. Akayezu, ICTR Trial Chamber Judgment, 2 September 1998, par.
731.
* 24 Idem,
para.233
*
25Ibidem.
* 26Prosecutor v.
Gacumbitsi case No. 2001- 64-T, Judgment, June 17, 2004, Para. 291-293
* 27 Prosecutor v.
Akayezu, op, cit., para 115,157
* 28
Ibidem
*
29Ibidem.
* 30
Ibidem.
* 31 KRIANGSAK K.,
International criminal law, Oxford University Press Inc., New York, 2001,
p.112.
* 32 Theodor
Meron, "Rape as a Crime Under International Humanitarian Law," American Journal
of International Law (Washington, D.C.), vol. 87, July 1993, p. 426,
* 33 Protocol
Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts, opened for
signature December 12, 1977, Article 4
* 34 De Brouwer,
A. , Supra national criminal prosecution of sexual violence, Vol.20 , The
Hague, Intersentia, 2005
* 35 Prosecutor v.
Semanza, Case No. ICTR-97-20, May 20, 2005
* 36A.Odora, Rape
and sexual violence in international law. ICTR contribution, vol.12 New Eng.J.,
2005, p.135
* 37 Prof. Eric
D., Reports of Orders, Decisions and Judgments 1998, Bruylant Bruxelles,
vol.1,1998, p.284
* 38 M.,
Inés , The development of international law at the ICTR, P.69-70
*
39Ibidem.
* 40 Idem,
p.74
* 41 ICTR statute,
Article 6(1)
* 42 Prosecutor v.
Nahimana, Barayagwiza and Ngeze, Judgment, case No.ICTR-99-52-A, nov. 2007,
para. 660
* 43 Idem, para.
560
* 44 Kordid et
al., AJ para. 28; Galid, TJ para. 168; Radislav Krstid, Case No. IT-98-33-T,
Trial Judgment, 2 Aug. 2001, para. 601; Akayesu, TJ para. 483; Rutaganda, TJ
para. 39.
* 45 The Prosecutor v.
Nahimana et al. Case No. ICTR-99-52-A, para. 481
* 46Prosecutor
v. Muhimana, Judgment and Sentence, case No. ICTR-95-1-1, April 28,2005,
para.552
* 47Prosecutor
v. Musema, Case No. ICTR -96-13 judgment and sentence January, 27,2000para.
193
* 48Prosecutor v
Kamuhanda, Trial judgment, Case No. ICTR -97-23-S,September 4,1998
*
49Ibidem.
* 50 Prosecutor v.
Kayishema, op. cit Para.201
*
51Ibidem.
*
52Ibidem.
* 53H. NIAMB,
Judicial creativity at the international tribunals, The Hague, May 2010, P.
143
* 54 O. Obote, op
cit, P.158
* 55Madeleine H.
Morris, the Trials of Concurrent Jurisdiction: the Case of Rwanda, Am. Dipl.
(1998), available at
http://www.unc.edu/depts/diplomat/AD_Issues/amdipl_6/morris2.html#national.Accessed
on 15th November, 2012.
* 56SHATTERED
LIVES et al. «A Role for Conspiracy Law in International Tribunals»
88 Minn. L. Rev. 30, 54 (2003).
* 57Shattered
Lives, supra note 1.
* 58Press Release,
Human Rights Watch Applauds Rwanda Rape Verdict: Sets International Precedent
for Punishing Sexual Violence as a War Crime (Sept. 2, 1998), available at
http://www.hrw.org/press98/sept/rrape902.htm
accessed on 20/11/2012
* 59 O. Obote, op
cit, p.157
* 60 Idem, p.
158
* 61 Idem, p.165
* 62H. B. Jallow,
Challenges of international criminal Justice: Presentation herd in Arusha, 29
November 2007
* 63 Antonio
Cassese, International Criminal Law 181 (2003).
* 64 Prosecutor v.
Kajerijeri, Case No. ICTR-98-44A-T, Judgment and sentence, Dec. 1, 2003
* 65
Ibidem.
* 66
Ibidem.
* 67 Idem, para.
923
* 68Prosecutor v.
Kajerijeri , Case No. ICTR-98-44A-T, Judgment and sentence, Dec. 1,
2003
* 69 Prosecutor v.
Kajelijeli (Kajelijeli Judgment and Sentence), Case No. ICTR-98-44AT, Judgment
and Sentence para. 923 (Dec. 1, 2003).
* 70 Prosecutor v.
Kajelijeli(Kajelijeli Judgment and Sentence), Case No. ICTR-98-44AT, Judgment
and Sentence para. 922 (Dec. 1, 2003).
* 71 Prosecutor v.
Muhimana, judgment and sentence, Case No. ICTR-95-1-1, April,28,2005
* 72 Prosecutor v.
Karemera, Ngirumpatse,and Nzirorera, Case No. ICTR-98-44-1.
* 73 Prosecutor v.
Karemera et al. op cit, para. 66.
*
74Ibidem.
* 75Idem, pp.
67-70
* 76 Idem, p.
71
* 77 Karemera
Amended Indictment, Case No. ICTR-98-44-I
* 78
Ibidem
* 79X, Prosecuting
crimes of rape and sexual violence at the ICTR available at
http//www.law.harvard.edu/accessed on 08/11/2012
* 80idem
* 81Prosecutor
v. Niyitegeka, Trial Judgment, Case No. ICTR-96-14-T, May 16, 2003.
* 82Prosecutor v.
Kajerijeri, Case No.ICTR-98-44A-T, Judgment, para 920
* 83 B. Nowrojee,
Sexual violence during the Rwandan genocide and its Aftermath, New
York.1996
* 84
Ibidem
* 85 Unless of
course the rape charges are withdrawn by the current prosecutor, as was done
recently in the case of Emmanuel Ndindabahizi in 2003.
* 86 N. Binaifer,
Your justice is too slow: will the ICTR fail Rwanda's rape victims?, Boston
Consortium Fellow, November,2005
* 87 N. Binaifer,
Your justice is too slow: will the ICTR fail Rwanda's rape victims?, Boston
Consortium Fellow, November,2005
* 88
Ibidem
* 89 Breton L.,
2002, Analysis of trends in sexual violence prosecutions in indictments by the
ICTR, Montreal, November, 2002
* 90 For an
excellent quantitative analysis that cites the figures on the trends in sexual
violence prosecutions at the ICTR, see Breton-Le Goff (2002:7).
* 91
Ibidem.
* 92 B. Nowrojee,
«Sexual violence during Rwandan genocide and its Aftermath», New
York, November,2005
* 93 The prosecutor v.
André Ntagerura et al., case No. ICTR-99-46-T, para 409
* 94 Chhatbar,
Sukhdev. 2001. «Cyangugu/prosecution's motion on rape denied,»
Internews, Arusha, 14 February.
http://www.internews.org/activities/ICTR_Reports/ICTRNewsFeb01.html#0214a,
accessed on 20th 2012.
* 95 Statute of
the International Criminal Tribunal for Rwanda, Nov. 8, 1994,
* 96 The ICTR's
Rules of Procedure and Evidence were written pursuant to Article 14 of the ICTR
Statute,
* 97 Law No.
01/2007 of 02/05/2012 instituting penal code, published in O.G no. special of
14 June 2012
* 98 MUSHINGWAMANA
E., child rape in Rwanda: an analytical overview,p.3
* 99 Shattered L.
, Sexual Violence during the Rwandan Genocide and its Aftermath, USA, September
1996 by Human Rights Watch
* 100 X,
«Gender Based Violence training module», available at
http://www.migeprof.gov.rw/IMG/doc/,
accessed on 20th November, 2012.
* 101 Law No.
27/2001 of 28/04/2012 relating to Rights and protection of Child in Rwanda ,
published in O.G no.23 of 01 December, 2001
* 102
Ibidem.
* 103 Law
no. 13/2008 of 19/05/ 2008 establishing Gacaca courts,
published in O.G. n° 11 of 1st June 2008
* 104
Ibidem,
* 105 Organic law
no 01/2012 of 02/05/2012 instituting Rwandan Penal Code, official gazette No.
special of 14 June 2012
* 106 Law No.
03/2009/ of 26/05/2009, published in O.G. n° special of
26/05/2009
* 107 Idem, art.
54
* 108Law No.
13/2008 of 19/05/2008, available at
www.amategeko.net/display_rubrique.php?ActDo=all&information
accessed on 25/11/2012.
* 109 Jesse
Melman, The Possibility of Transfer(?): A Comprehensive Approach to the
International Criminal Tribunal for Rwanda's Rule 11bis To Permit Transfer to
Rwandan Domestic Courts, 79 Fordham L. Rev. 1271 (2011). Available at:
http://www.ir.lawnet.fordham.edu/flr/vol79/iss3/15,
accessed on 20/11/2012
* 110 N.,
Binaifer, Sexual Violence during the Rwandan Genocide and its Aftermath, New
York. November 2003.
* 111Ibidem.
* 112 B.
Nowrojee, «Your Justice is Too Slow»: Will the ICTR Fail Rwanda's
Rape Victims? November 2005
* 113
Ibidem
* 114 Effange-Mbella,
«Reaching Out to Survivors of Sexual Violence, the Legacy of ICTR Gender
Justice», p.5, citing Africa Legal Aid (AFLA), Gender Justice: The Legacy of the International Criminal Tribunal
for Rwanda (ICTR), p. 12.
* 115 G. Breton,
Analysis of Trends in Sexual Violence Prosecutions in Indictments by the ICTR
November 2002.
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