Legal analysis on the crime of rape under ICTR jurisdiction

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(*)

* 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