RAPE AND SEXUAL VIOLENCE IN INTERNATIONAL LAW: ICTR CONTRIBUTION

ALEX OBOTE-ODORA*
INTRODUCTION Rape and sexual violence are crimes that combatants and noncombatants have commonly committed throughout the history of warfare. However, prosecutors have not traditionally prosecuted these crimes as war crimes.1 During the 1994 Rwanda crisis, the Interahamwe,2 members of the Rwanda Armed Forces [FAR], communal police, and the militia used rape and sexual violence as weapons of war. Tutsi women and girls, described as accomplices of enemy combatants, were targeted, raped, assaulted, and eventually killed. Rape and sexual violence were also considered crimes against humanity, as Tutsi women and moderate Hutu women were singled out, raped, sexually assaulted, and later killed. The Interahamwe, members of the FAR, and the communal police also engage in these practices to implement the policy of genocide. Tutsi women were sexually assaulted with the specific intent to destroy their reproductive competence, while other Tutsi women were raped and sexually assaulted simply because they were Tutsi. The separation of Tutsi women from Hutu
* LLD, LLM, (Stockholm University), LLB (Hons) (Makerere University); Advocate, Special Assistant to the Prosecutor of the International Criminal Tribunal for Rwanda. I thank Ms. Roberta Baldini, Assistant Trial Attorney and Ms. Kentaro Kanyomozi, Case Manager, of the Cyangugu OTP Trial Team for the research they diligently conducted in the preparation for this paper. Kelly D. Askin, Prosecuting Wartime Rape and Other Gender-Related Crimes Under International Law: Extraordinary Advances, Enduring Obstacles, 21 BERKELEY J. INTL L. 288 (2003). The word Interahamwe is used to describe members of the youth wing of President Habyarimanas ruling party, the National Revolutionary Movement for Development [NRMD]. During the 100 days of massive killings in Rwanda in the months of April, May, June, and the first week of July 1994, the word Interahamwe was used to describe all the armed Hutu youth regardless of political party affiliation.

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women before the commencement of rape, sexual assault, and murder of the victims demonstrated the genocidal intent. The 1994 Rwandan Genocide had devastating effects on the female population of Rwanda - particularly Tutsi and moderate Hutu women and girls - due to the systematic rape and sexual violence that the Rwanda senior military and government officials planned, instigated, committed, or otherwise aided and abetted. Nearly all female survivors, including very young girls,3 became victims of the rape or sexual assault.4 These crimes were pervasive and systematic during the Rwanda crisis.5 In addressing these violations of international humanitarian law in Rwanda, the Office of the Prosecutor [OTP] adopted a policy to prosecute rape and sexual violence alongside other crimes stipulated in the Statute of the International Criminal Tribunal for Rwanda [ICTR Statute]. In adopting said prosecution policy, the OTP ended the traditional stance in international criminal law prosecutions of not indicting the crimes of rape and sexual violence. The OTP has prosecuted, and continues to prosecute, senior military and government officials for rape and sexual violence alongside genocide, crimes against humanity, and war crimes. The OTP indicts these persons for acts that they and their subordinates committed.6 When the OTP indicts a person for the acts of his subordinates, it is incumbent upon the prosecutor to establish that the accused was in a position of authority, exercised effective control over the subordinates, and knew or should have known what the subordinates did. When contrasted with the Nuremberg and Tokyo trials, the International Criminal Tribunal for Rwandas [ICTR] contribution to the prosecution of rape and sexual violence stands up clearly for all to see, and hopefully, appreciate.7
3. 4. 5. See, e.g. Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, 416, 437 (Sept. 2, 1998). HUMAN RIGHTS WATCH, SHATTERED LIVES: SEXUAL VIOLENCE DURING THE RWANDAN GENOCIDE AND ITS AFTERMATH (1996) [hereinafter SHATTERED LIVES]. Commn on Hum. Rts., Sub-Comm. on Prevention of Discrimination & Prot. of Minorities, Report on the Situation of Human Rights in Rwanda, 16, U.N. Doc. E/CN.4/1996/68 (Jan. 29, 1996) (submitted by Rene Degni-Segui, Special Rapporteur of the Commn on Human Rts.) [hereinafter Human Rights Report]. See Office of the Prosecutor Practice Notes 3, 5 (on pleading criminal responsibility by direct participation) (internal ICTR OTP document) [hereinafter Practice Notes]; id. at 7 (on pleading joint criminal responsibility). Both modes of responsibilities are premised on the Statute of the International Criminal Tribunal for Rwanda, 1994, art. (6)(1) [hereinafter ICTR Statute], and Practice Notes, supra, at 6 (on pleading superior/command criminal responsibility, premised on ICTR Statute, supra, at art. 6(3)). Kelly D. Askin, Developments in International Criminal Law: Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status,

6.

7.

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The very first conviction for rape and sexual violence by the ICTR was Prosecutor v. Akayesu.8 Jean Paul Akayesu was the bougmester (mayor) of Taba commune. He instigated, ordered, and otherwise aided and abetted in acts of rape and sexual violence that were committed against Tutsi women and girls in and around the Taba Commune in the Kigali Prefecture in Rwanda.9 Akayesu made history by becoming the first person convicted by an international court for rape and sexual violence that constituted genocide under the 1948 Genocide Convention. Legal scholars concur that in the Akayesu judgment the ICTR took the first step in breaking down the international legal communitys ambivalence toward rape and sexual violence as crimes under international law.10 The ICTR became the first international tribunal to indict, prosecute, and convict an official for genocide, and to hold that rape itself could constitute genocide.11 The ICTR also defined rape under international law.12 This

8. 9. 10.

11.

93 AM. J. INTL L. 97, 99 (1999) (Discussion contrasts Nuremberg and Tokyo Tribunals, which largely ignored gender-based crimes, with the ICTR and the ICTY which have surmounted reluctance and other obstacles to address these crimes despite their sexually graphic nature and traditional insensitivities to womens rights and needs.) Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, (Sept. 2, 1998). Prosecutor v. Akayesu, Case No. ICTR 96-4-I, Amended Indictment, 12A-12B (Jan. 1, 1996). Stephanie K. Wood, A Woman Scorned for the Least Condemned War Crime: Precedent and Problems with Prosecuting Rape as a Serious War Crime in the International Criminal Tribunal for Rwanda, 13 COLUM. J. GENDER & L. 274, 276 (2004). See Akayesu, ICTR 96-4-T, Judgment at 706-07. The Trial Chamber stated that: With regard, particularly, to the acts described in paragraph 12(A) and 12(B) of the Indictment, that is, rape and sexual violence, the Chamber wishes to underscore the fact that in its opinion, they constitute genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a particular group, targeted as such. Indeed, rape and sexual violence certainly constitute infliction of a serious bodily and mental harm on the victim and are even, according to the Chamber, one of the worst ways to inflict harm on the victim as he or she suffers both bodily and mental harm. In light of all the evidence before it, the Chamber is satisfied that the acts of rape and sexual violence described above, were committed solely against Tutsi women, many of whom were subjected to the worst public humiliation, mutilated and raped several times, often in public, in the Bureau Communal premises or in other public places, and often by more than one assailant. These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their

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judgment added significantly to the development of international criminal law and active participation in the investigation process by female investigators. The OTP now has a Rape and Sexual Violence Section which boasts an extensive database and is headed by a female lawyerinvestigator. The OTPs current record for the prosecution of rape and sexually violent related crimes is as follows: They have prosecuted (1) four of the twenty-three accused in completed cases,13 (2) nineteen of the twenty-five accused currently on trial,14 and (3) eight of the twenty-seven accused awaiting trial.15 The OTP faces the continuing challenges of performing adequate investigations to support the charges and the reluctance of witnesses to give statements to investigators or to come to testify before the ICTR in Arusha. Further, the slow pace at which the cases come to trial also inhibits the progress made by the Akayesu case law. Consequently, some scholars and human rights activists view the progress made by the ICTR, since the Nuremberg and Tokyo trials, as a glass half-empty rather than half-full. The OTP recognizes that more must be done - particularly with respect to persuading witnesses to come forward to testify - and the ICTRs corresponding obligation to provide adequate protection and support to

destruction and the destruction of the Tutsi group as a whole. 12. 13. Id. at 731. Id. at 598. See id.; Prosecutor v Musema, Case No. ICTR 96-13-A, Judgment & Sentence (Jan. 27, 2000); Prosecutor v Semanza, Case No. ICTR 97-20-T, Judgment & Sentence (May 15, 2003); Prosecutor v. Gacumbitsi, Case No. ICTR 01-64-T, Judgment (June 17, 2004). Prosecutor v Bagasora, Case No. ICTR 96-7 (involving four accused: Bagasora, Nsengiyumva, Ntabakuze and Kabiligi); Prosecutor v Nyaramasuhuko, Case No. ICTR 97-21 (involving six accused, including Nyaramasuhuko and her son Ntahobali, who were charged with rape); Prosecutor v Ndindiliyimana, Case No. ICTR 200-56 (involving four accused: Ndindiliyimana, Bizimungu, Nzuwonemeye and Sagahutu); Prosecutor v Bizimungu, Case No. ICTR 99-45 (involving four accused: Bizimungu, Mugenzi, Bicamumpaka and Mugiraneza. At the end of the Prosecutions case, all four were acquitted of the count of rape pursuant to Rule 98 bis of the ICTR Rules of Procedure and Evidence. The trial is now in the Defense phase with respect to the other counts other than rape.); Prosecutor v Simba, Case No. ICTR 01-76 (Judgment was delivered on December 13, 2005 - the accused was convicted); Prosecutor v Gatete, Case No. ICTR 2000-61; Prosecutor v. Muvunyi, Case No.ICTR-00-55. The numbers of accused convicted, in trial or awaiting trial as changed since I presented the paper, and the numbers will continue to change as ICTR Trial Chambers delivers decisions and judgments. At any given time, a fairly accurate figures can be obtained at: ICTR, Status of Cases, http://www.ictr.org. See ICTR, Status of Cases, http://www.ictr.org (for an updated list of pending cases).

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witnesses before, during, and after testifying in court. Thus, the OTP strives to maintain the ICTRs legitimacy, to protect womens human rights, and to build on the jurisprudence classifying rape as a weapon of war and genocide, as advocated by legal scholars.16 The OTP recognizes that rape and sexual violence are serious crimes, and that prosecuting these crimes is only the first step toward the creation of an international legal system to deter future impunity. It is in this context that this paper assesses the past performance of the ICTR and its need to improve the effectiveness of future prosecutions of rape as a weapon of war. I concur with Elisabeth Rehn and Ellen Johnson Sirleaf that: It is critical as the bodies of women of all ages, races, religions, and ethnicities continue to be used as envelopes to send messages to the perceived enemy. The harm, silence and shame women experience in war is pervasive, but their redress is almost non-existent.17 The OTP must set the trend for establishing jurisprudence that provides redress to victims and survivors. This paper acknowledges the significant advancements in international criminal law in the prosecution of rape and sexual violence as crimes against humanity and as modes of committing genocide. It also presents a brief survey of the ICTRs case law in order to review the problems encountered by the OTP in investigating, indicting and prosecuting rape and sexual violence cases. The purpose of this review is to provide lessons for future prosecutions under international law. The paper begins by providing a brief historical background of the Rwanda Crisis and the period thereafter. It will survey ICTR and ICTY [International Criminal Tribunal of Yugoslavia] jurisprudence, including Appeals Chamber decisions that have impacted the ICTRs application of the law, and the challenges faced by the OTP.
I.

RAPE AND SEXUAL VIOLENCE DURING THE 1994 RWANDA CRISIS

During three months in 1994, from April to July, over 800,000 Rwandan men, women, and children were killed. Tensions exploded when President Habyarimanas plane was shot down over Kigali, Rwanda, on April 6, 1994. In retaliation, the FAR and the Interahamwe immediately set up roadblocks and began house-to-house searches to find and kill Tutsis
16. 17. See Wood, supra note 10, at 278. ELISABETH REHN & ELLEN JOHNSON SIRLEAF, WOMEN, WAR AND PEACE: THE INDEPENDENT EXPERTS ASSESSMENT OF THE IMPACT OF ARMED CONFLICT ON WOMEN AND WOMENS ROLE IN PEACE-BUILDING 149 (United Nations Development Fund for Women, 2002), available at http://www.unifem.org/index.php (last visited Jan. 7, 2006).

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and moderate Hutus. During the wholesale slaughter, they perpetrated widespread sexual violence against Tutsi, and some Hutu women and girls. This sexual violence included rape, mutilation and humiliation. Rwandan senior military and government officials sanctioned and encouraged these crimes.18 In the face of existing international norms governing warfare and prohibiting violence against women and civilians, the Rwandan Crisis had devastating consequences for women.19 The Hutu power propaganda machine proliferated ethnic and gender stereotypes well before the 1994 genocide.20 The Hutu Ten Commandments, published in Kangura,21 the Hutu Power propaganda magazine, described Tutsi women as condescending seductresses inaccessible to Hutu men.22 Tutsi women were also depicted as spies who would undermine and dominate Hutu men.23 When women of any group are identified as sexual temptresses they become, by definition, sexual objects. Therefore, retaliatory acts against women of the targeted group are often sexual in nature with no legal redress.24 The depiction of Tutsi women through the propaganda significantly contributed to the attitudes toward Tutsi women - that they were objects to be dominated, humiliated, dehumanized, and destroyed.25 One cannot equate the death toll with the number of women who were victims of rape and sexual violence. Sex-based crimes are not easily identifiable, like gunshot wounds or amputated limbs. This is because these crimes inflict physical and psychological wounds, which women can conceal to avoid further emotional anguish, ostracization, and retaliation from perpetrators who may live nearby. Reports estimating the number of women who were raped, which was determined by examining the number of pregnancies that coincided with the three months of the genocide,

18. 19. 20.

21. 22. 23. 24. 25.

Prosecutor vs. Akayesu, Case No. ICTR 96-4-T, Judgment, 692-94 (Sept. 2, 1998). See also Askin, supra note 1, at 320; SHATTERED LIVES supra note 4. ALISION DES FORGES, HUMAN RIGHTS WATCH, LEAVE NONE TO TELL THE STORY: GENOCIDE IN RWANDA (1999); Wood, supra note 10, at 274-75. Liezlie L. Green, Gender Hate Propaganda and Sexual Violence in the Rwandan Genocide: An Argument for Intersectionality in International Law, 33 COLUM. HUM. RTS. L. REV. 733, 746-50 (2002). (Propaganda dispersed by the Hutu Power organizations, such as Kangura, contributed to gender-specific hate toward Tutsi women). Hutu Ten Comandments, 6 KANGURA (Rwanda), 1990, at 3-4. Wood, supra note 10, at 284. A TIME TO REMEMBER, RWANDA: TEN YEARS AFTER THE GENOCIDE 21 (James M. Smith ed., 2004) [hereinafter A TIME TO REMEMBER, RWANDA]. Wood, supra note 10, at 284-85. See generally Green, supra note 20.

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indicate that rape was the rule and its absence the exception.26 These statistical projections yield a number ranging from 250,000 to 500,000 women raped.27 However, these numbers do not account for the women whose injuries prevented them from conceiving a child, or the number of women who experienced multiple rapes and gang rapes.28 Nor do the numbers account for unmarried women who either self-aborted29 or committed infanticide;30 who were mutilated by having breasts cut off or having farm implements brutally inserted into their genitals;31 or who were murdered after they were raped.32 Many of the rape victims believe they no longer have value as a result of the rape. The survivors refer to rape as a living death and view it as worse than death.33 Lastly, many of the victims now suffer from HIV/AIDS.34
II.

THE LEGAL FRAMEWORK

History has shown that there have been general rules of war regulating the conduct of belligerents on the one hand, and the protection of the civilian populations on the other. Rules of engagement existed as far back as 500 B.C. These rules were in place to protect combatants and noncombatants during armed conflicts - particularly women and children.35 However, it was not until 1474 that an international tribunal prosecuted a combatant for violations of the laws of war.36 Over the centuries, political and military leaders who violated the laws and customs of war were

26. 27.

28. 29. 30. 31. 32. 33. 34. 35. 36.

Human Rights Report, supra note 5; see also SHATTERED LIVES, supra note 4. Rhonda Copelon, Surfacing Gender: Reengraving Crimes Against Women in Humanitarian Law, in WOMEN AND WAR IN THE TWENTIETH CENTURY: ENLISTED WITH OR WITHOUT CONSENT, at 33 (Nicole A. Dombrowski ed., 1999) (Rwandan National Population Office confirmed that between 2,000 and 5,000 became pregnant as the result of being raped, noting however, that not all rapes resulted in a full-term pregnancy.). See, e.g., SHATTERED LIVES, supra note 4. See, e.g., id. See, e.g., id. See, e.g., id. Id. Id. A TIME TO REMEMBER, RWANDA, supra note 23; SHATTERED LIVES, supra note 4. Wilbourn E. Benton, Introduction, to NUREMBERG, GERMAN VIEWS OF THE WAR TRIALS 2 (Benton & Grimm eds. 1955). M. Cherif Bassiouni, The Time Has Come for an International Court, 1 IND. INTL & COMP. L. REV. 1, 1 (1991). The trial of Peter van Hagenbach was the first international criminal trial, taking place 471 years before Nuremberg. The trial was held in Breisach, Germany, with twenty-seven judges of the Holy Roman Empire presiding. Id.

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prosecuted, giving rise to the progressive development of the rules governing warfare, and prosecution of violators of those rules.37 International Humanitarian Law [IHL] evolved from those earlier practices, in order to lessen the horrors suffered by both combatants and non-combatants during armed conflict. The prevailing principle of such humanitarian law is that civilians should never be targeted for attack, and care must be taken to spare them from harm to the greatest extent possible. Another important principle is that all non-combatants must be treated humanely. This principle has tended to ignore the violent, hate-filled atmosphere of war.38 Perpetrators who commit, or fail to prevent or punish, serious violations of IHL face individual and superior criminal liability. These actors may be military, civil or political leaders who fail to take measures to prevent these crimes, to stop them once they have commenced, or to punish those responsible for these crimes after the fact.39 Many such violations carry with them individual criminal responsibility, whether or not the perpetrator is a party to the 1949 Geneva Conventions and its two Additional Protocols of 1977.40 The international law treaties governing armed conflicts in modern times are the Hague Convention of 1907 and the four Geneva Conventions,41 together with the annexes to the Conventions and the two

37. 38. 39. 40.

41.

KELLY D. ASKIN, WAR CRIMES AGAINST WOMEN: PROSECUTION IN INTERNATIONAL WAR CRIMES TRIBUNALS (1997). See Askin, supra note 1, at 288. E.g. ICTR Statute, supra note 6, at art. 6(3). Article 3 common to the four Geneva Conventions of 1949 reads as follows: . . .In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions. . . See, e.g., Geneva Convention Relative to the Treatment of Civilian Persons in Times of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. The rebel RPF and the FAR were parties to the conflict pursuant to Article 3 common to the four 1949 Geneva Conventions. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75U.N.T.S. 31 [Hereinafter First Geneva Convention]; Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75U.N.T.S., 85 [Hereinafter Second Geneva Convention]; Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S., 135 [Hereinafter Third Geneva Convention]; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S., 287 [Hereinafter Fourth Geneva Convention]. The 1949 Geneva Conventions supersedes the 1864, 1906, and 1929 Geneva Conventions.

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1997 Additional Protocols to the Geneva Conventions.42 Of these Protocols, Protocol I addresses crimes that arise during international conflicts, and Protocol II addresses non-international armed conflicts. Both additional Protocols expressly prohibit rape and forced prostitution.43 Article 27 of the Fourth Geneva Convention states that: [w]omen shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.44 Article 76(1) of Protocol I states: [w]omen shall be the object of special respect and shall be protected in particular against rape, enforced prostitution, and any other form of indecent assault.45 While the Conventions include rape and enforced prostitution, they equate these crimes with crimes of honor and dignity rather than with crimes of violence.46 Thus, they conceal the nature of the crime and perpetuate detrimental stereotypes.47 After World War II, the victors of the war established ad hoc tribunals. The International Military Tribunal [IMT] held trials in Nuremberg and Tokyo. The Nuremberg Trials prosecuted the German defendants and the Tokyo Trials prosecuted the Japanese defendants. These trials largely ignored sexual violence, although there was credible evidence of widespread and systematic rape and sexual violence in Europe and Asia during the Second World War.48

42.

43.

44. 45. 46. 47. 48.

Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS. 3, 16 ILM 1331 (entered into force 7 Dec. 1978) [Hereinafter Protocol I]; Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, S. Treaty Docs. No.100-2, 1125 UNTS. 609 (entered into force 7 Dec. 1978) [Hereinafter Protocol II]. Article 75(2)(b) of Additional Protocol I prohibits: Outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault. The provision does not expressly mention rape. However, Article 4(e) of Additional Protocol II prohibits rape. The article prohibits: Outrages upon personal dignity, in particular, humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault. Fourth Geneva Convention, supra note 41, at art. 27. Protocol I, supra note 42, at art. 76(1). Askin, supra note 1, at 304. Id. War crimes trials that included references to rape in the context of war crimes were conducted. However, in these trials rape was not recognized as an independent crime. Rather, acts of rape were viewed by the belligerents as spoils of war - not as crimes under national or international law. See e.g., IRIS CHANG, THE RAPE OF NANKING 169-80 (1977).

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The United Nations Security Council [U.N. Security Council] established the ICTR in 1994 with the mandate to prosecute crimes arising from the Rwanda crisis.49 The ICTR Statute provides for the prosecution of rape and sexual violence alongside genocide, crimes against humanity, and war crimes. In 1993 the U.N. Security Council had already established the ICTY to prosecute crimes committed in the former Yugoslavia.50 The progress made by the ICTR and ICTY in prosecuting various forms of sexbased crime is revolutionary in history and provides legal precedents for punishing these crimes in future conflicts.51 However, the development and application of international criminal law still has wide gaps, especially in the area of prosecution of rape and sexual violence. Therefore, while the concept of international criminal law and its impact on international criminal prosecution has a long history, its practice is still in its infancy. The international legal community has much to learn regarding legal procedure, commencing with investigation by persons who appreciate the elements of the crimes they are investigating, evaluation of the evidence gathered, and drafting and confirmation of the indictment. The post-confirmation process is sometimes long and tedious. For example, once the indictment is confirmed the defense may file a series of motions under Rule 72 challenging defects in indictments. The defense may continue to file motions for a number of reasons after the accused has made his first appearance before a trial chamber. In all these circumstances, the prosecutor must respond to these motions. While some of the motions raise substantial legal issues, others are vexatious and frivolous. The prosecution will also file a number of motions, for example, to protect witnesses or to seek orders from a trial chamber for a witness to testify via a video link at trial. At trial the prosecution is sometimes faced with the fact that some of the key witnesses have died, cannot be traced, or are unwilling or unable to testify for the prosecution. The reasons for not testifying are many and varied. Some witnesses refuse to testify because they have been threatened. At least two witnesses have died under suspicious circumstances after testifying. Other witnesses see no point in regularly travelling to Arusha to testify in different cases, particularly as they may be required to stay in Arusha for several weeks and consequently lose their jobs, or crops if they are farmers. The common saying among Rwandan farmers is: [t]he rain does not wait for you when you go to Arusha. The
49. 50. 51. Askin, supra note 1, at 305-06. Id. at 305. Id. at 317.

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farmers are not prepared to miss the planting season, because they receive no compensation for testifying. Still, other witnesses opt to participate only in the Gacaca proceedings and pursue reconciliation. On the other hand, some witnesses have given up on international criminal justice. The witnesses see no point in participating further, particularly because they view the accused as enjoying a much higher standard of life at the United Nations Detention Facility [UNDF] in Arusha, compared to the miserable conditions of victims and witnesses in Rwanda. The accused persons now detained at the UNDF have spacious rooms with television sets, access to computers, regular meals, clean clothes, exercise facilities and free medical services. Victims and witnesses do not have comparable facilities and benefits.52 This is evident when one compares the physical appearance and conditions of prosecution witnesses to those of the accused persons in the courtroom during trial
52. Under the ICTR Statute, only the Trial Chambers are specifically empowered under Article 19(1) to ensure that a trial is fair and expeditious and conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses. Article 21 simply allows the Rules of Procedure and Evidence to operate as a vehicle for the protection of victims and witnesses. The basis for the Victims and Witnesses Support Unit is Rule 34 of the Rules of Procedure and Evidence, which provides for the establishment of the unit under the authority of the Registrar. This Rule clearly provides for the adoption of protective measures for victims and witnesses to ensure that they receive relevant physical and psychological rehabilitation - particularly in the cases of victims of rape and sexual assault. While subparagraph A (iii) of Rule 34 clearly provides for the development of short and long-term plans for the protection of witnesses who have testified before the Tribunal, no clear stipulation is provided under the Rule for potential witnesses, or witnesses from whom statements have been received but who have yet to be short listed to testify at a trial. However, Rule 39 (ii) then stipulates that the Prosecutor, in the context of an interview, may take all measures deemed necessary for the purpose of the investigation and to support the prosecution at trial, including the taking of special measures to provide for the safety of potential witnesses and informants. The position of the Registry is that the Rules reference to the taking of special measures suggests that these measures should be limited to exceptional circumstances and should not be construed as a blanket provision for all potential witnesses, as some have suggested. The position taken by the OTP is that as long as witness statements are obtained in the course of investigations, then the individuals giving such statements constitute potential witnesses which the Prosecution is thus empowered to protect. The Trial Chambers routinely grant protective measures for witnesses, including the use of pseudonyms, protective screens, image altering devices, closed sessions and video link testimony. However, these measures have not protected witnesses from the danger inherent in the disclosure of their identity by persons who are responsible for assisting them during their stay in the safe houses in Arusha. Significantly, there is no provision for direct financial assistance by the ICTR to the victims and witnesses. On the other hand, accused persons are entitled to medical support including other facilities enjoyed at the UNDF in Arusha-Tanzania.

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proceedings. Considering the inequality of treatment between the accused persons and the victim-witnesses, the prosecution cannot be sure that any witness will testify until they have actually done so in court. This is a recurring problem the prosecutor faces. It is therefore not just an excuse when the Prosecutor states that witnesses who had earlier made statements to the OTP investigators are no longer willing or able to testify. Witnesses failure or reluctance to testify must be viewed in the context described above. B. The ICTR Jurisprudence Since 1994 the ICTR has developed significant jurisprudence on prosecution for rape and sexual violence. For example, the ICTR judgments establish that rape and sexual violence were major components of the Rwanda Crisis. In 1994 rape and sexual violence were committed as part of a widespread and systematic attack against a targeted group: Tutsi and moderate Hutu women and men. An example of such a case adjudicated by the ICTR is Prosecutor v. Akayesu. 1. Prosecutor v. Akayesu The watershed ICTR judgment is Prosecutor v. Akayesu.53 The Trial Chamber delivered it on September 2, 1998. The Akayesu judgment held that rape and other forms of sexual violence were used as a mechanism of genocide and formed part of a widespread or systematic attack on the targeted civilian group, comprising crimes against humanity. This was the first case in history that rendered a conviction for either genocide or crimes against humanity through sexual violence. The case is also groundbreaking for its seminal definitions of rape and sexual violence under international law, and for recognizing forced nudity as a form of sexual violence comprising inhumane acts as a crime against humanity. In counts thirteen through fifteen of the Amended Indictment, Jean Paul Akayesu, the bougermester of Taba commune, Rwanda, was charged with rape and other inhumane acts as crimes against humanity and war crimes.54 The counts of Genocide with which he was charged also alleged
53. 54. Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment (Sept. 2, 1998). Prosecutor v. Akayesu, Case No. ICTR 96-4-I, Indictment, counts 13-15 (Jan. 1, 1996) (Akayesu was not originally charged with any sexual crimes. It was only when the Chamber heard spontaneous testimony about the gang rape of a six-year old girl and testimony from other witnesses who testified about being raped or seeing others being rape that Judge Pillay suggested that the OTP investigate. She suggested that if evidence of such crimes were found, the Prosecutor should consider amending the indictment).

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rape, which allowed the Trial Chamber to find Akayesu guilty of rape as a mode of committing genocide. Akayesu is the first case in international law that provides a definition of rape. Prior to this case there was no internationally accepted definition. Under Akayesu rape is defined as a physical invasion of a sexual nature, committed on a person under circumstances, which are coercive.55 The Chamber also considered the definition of sexual violence, which is broader than that of rape. It defined sexual violence as any act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact.56 An example of sexual violence that does not involve touching is forced nudity. The Chamber held that the amount of coercion required does not need to amount to physical force, as threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion.57 The judgment also emphasized that coercion may be inherent in armed conflicts or when the military or militias are present.58 While national jurisdictions have defined rape as non-consensual sexual intercourse, the Trial Chamber found that a broader definition is required to include acts which involve the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual.59 The Chamber heard testimony regarding this, and subsequently held that, thrusting a piece of wood into the sexual organs of a women as she lay dying - constitutes rape in the Tribunals view.60 The Trial Chamber noted that sexual violence is within the scope of other inhumane acts as crimes against humanity, outrages upon the personal dignity of the war crime provisions of the Statute, and serious bodily or mental harm of the genocide prescriptions.61 While rape was not charged as torture in the amended indictment, the Trial Chamber compared the act of rape to torture, stating that rape is a form of aggression and that the elements of the crime cannot be captured in a mechanical description of objects and body parts.62 The Chamber
55. 56. 57. Akayesu, ICTR 96-4-T, Judgment at 688. Id. Id. It is noteworthy that the ICTY adopted the Akayesu definition in Prosecutor v. Delalic. See Prosecutor v. Delalic, Case No. IT-96-21-T, Judgment, 478-79 (Nov. 16, 1998). Id. Akayesu, ICTR 96-4-T, Judgment at 686. Id. Askin, supra note 1, at 319. Akayesu, ICTR 96-4-T, Judgment at 687.

58. 59. 60. 61. 62.

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recognized that, [l]ike torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, and control or destruction of a person. Like torture rape is a violation of personal dignity and rape in fact constitutes torture when all of the elements of torture are met.63
63. Id. The last element, requiring a State actor or policy, is pertinent when applying international humanitarian law or international criminal law, verses human rights law, and was rejected by the ICTY in Prosecutor v. Kunarac. See Case No. IT-96-23, Judgement, 468-72 (Feb. 22, 2001). In Kunarac the Trial Chamber opined: In attempting to define an offence under international humanitarian law, the Trial Chamber must be mindful of the specificity of this body of law. In particular, when referring to definitions which have been given in the context of human rights law, the Trial Chamber will have to consider two crucial structural differences between these two bodies of law: (i) Firstly, the role and position of the state as an actor is completely different in both regimes. Human rights law is essentially born out of the abuses of the state over its citizens and out of the need to protect the latter from state-organised or state-sponsored violence. Humanitarian law aims at placing restraints on the conduct of warfare so as to diminish its effects on the victims of the hostilities . [sic] In the human rights context, the state is the ultimate guarantor of the rights protected and has both duties and a responsibility for the observance of those rights. In the event that the state violates those rights or fails in its responsibility to protect the rights, it can be called to account and asked to take appropriate measures to put an end to the infringements. In the field of international humanitarian law, and in particular in the context of international prosecutions, the role of the state is, when it comes to accountability , [sic] peripheral. Individual criminal responsibility for violation of international humanitarian law does not depend on the participation of the state and, conversely , [sic] its participation in the commission of the offence is no defence to the perpetrator. Moreover, international humanitarian law purports to apply equally to and expressly bind all parties to the armed conflict whereas, in contrast, human rights law generally applies to only one party, namely thestate [sic] involved, and its agents. This distinction can be illustrated by two recent American decisions of the Court of Appeals for the Second Circuit rendered under the Alien Torts Claims Act. The Act gives jurisdiction to American district courts for any civil action by an alien for a tort committed in violation of the law of nations or a treaty of the United States. In the first decision, In re Filrtiga, the Court of Appeals of the Second Circuit held that deliberate torture perpetrated under colour of official authority violates universally accepted norms of the international law of human rights,

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There is no doubt that the Akayesu judgment recognized that sexual violence causes great damage, and is used deliberately during conflicts or wars to control and devastate the enemy. In the Rwandan context, it was used to inflict great harm and to send a message to Tutsis and their supporters. The judgment unambiguously recognized that in the genocidal campaign carried out by the Hutus, rape was perpetrated as an integral part of the process of destruction.64 The judgment makes clear that rape is only one step on the road to the destruction of a targeted group - in this case, the Tutsi population.65 Rape destroys the spirit and the will to live, causing pain beyond the act of rape itself.66 The case against Jean Paul Akayesu does not allege that he physically engaged in raping the women of Taba Commune, but that he ordered, instigated or otherwise facilitated rape, forced public nudity and sexual mutilation. These were the acts for which he would be held individually accountable. Akayesu facilitated these crimes by his words of encouragement, his presence, and his failure to prevent, stop or punish his
regardless of the nationality of the parties. This decision was only concerned with the situation of an individual vis--vis a state, either his national state or a foreign state. In a later decision in Kadic v Karadic, the same court made it clear that the body of law which it applied in the Filrtiga case was customary international law of human rights and that, according to the Court of Appeals, in the human rights context torture is proscribed by international law only when committed by state officials or under the colour of the law. The court added, however, that atrocities including torture are actionable under the Alien Tort Claims Act regardless of state participation to the extent that the criminal acts were committed in pursuit of genocide or war crimes. (ii) Secondly, that part of international criminal law applied by the Tribunal is a penal law regime. It sets one party, the prosecutor, against another, the defendant. In the field of international human rights, the respondent is the state. Structurally , [sic] this has been expressed by the fact that human rights law establishes lists of protected rights whereas international criminal law establishes lists of offences . [sic] The Trial Chamber is therefore wary not to embrace too quickly and too easily concepts and notions developed in a different legal context. The Trial Chamber is of the view that notions developed in the field of human rights can be transposed in international humanitarian law only if they take into consideration the specificities of the latter body of law. The Trial Chamber now turns more specifically to the definition of the crime of torture. 64. 65. 66. Id. at 470. Akayesu, ICTR 96-4-T, Judgment, at 731; Askin, supra note 1, at 320. Id. at 732. Id.

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subordinates during or before the acts were committed.67 The Trial Chamber found Akayesu criminally responsible for several crimes, including sexual violence committed against Tutsi women and girls of Taba Commune and the surrounding area.68 The Chamber held that, by virtue of his authority, the Accuseds failure to prevent or stop the actions committed against the Tutsi of Taba Commune and Akayesus encouragement of these actions, sent a clear signal of official tolerance.69 Akayesu was therefore convicted of individual responsibility under ICTR Article 6(1) for rape and sexual violence.70 The Akayesu case is also important because the Trial Chamber held that the accused was guilty of sexual crimes committed within the context of genocide. It found that sexual crimes constitute[d] genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a particular group, targeted as such.71 The Chamber determined that rape was used as an instrument of genocide in Taba Commune; therefore, Akayesus acts and omissions made him individually responsible for such crimes.72 The Chamber recognized that rape is often a prelude to death. Women were sometimes allowed to live because rape is considered worse than death.73 The Trial Chamber convicted Jean Paul Akayesu of genocide and crimes against humanity; namely extermination, murder, rape, torture, and other inhumane acts. Akayesu was sentenced to life imprisonment.74 The Appeals Chamber affirmed the Trial Chambers judgment.75 While the ICTR was developing progressive case law in the area of sex-based violence, there was contemporaneously another line of cases developing at the ICTY that has taken a different, less progressive view of sex-based violence. In Prosecutor v. Furundzija, the ICTY Trial Chamber reviewed the ICTR definition of rape and concluded that a more narrow definition, based on a survey of national legislation, should be applied. The Chamber held that the following elements defined rape:
(i) the sexual penetration, however slight:

67. 68. 69. 70. 71. 72. 73. 74. 75.

Id. at 692-94. Askin, supra note 1, at 320. Id. Id. Akayesu, ICTR 96-4-T, Judgment at 731. Askin, supra note 1, at 320. SHATTERED LIVES supra note 4. Prosecutor v.Akayesu, Case No. ICTR 96-4-T, Sentence (Oct. 2, 1998). Prosecutor v. Akayesu, Case No. ICTR 96-4-A, Judgment, 423-24 (June 1, 2001).

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(a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; (ii) by coercion or force or threat of force against the victim or a third person.76

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The judgments in the Furundzija and Akayesu cases created two legal definitions of rape. Akayesu provided a broader definition that takes into consideration the experiences that many victims suffer during an armed conflict. Additionally, the ICTR definition under Akayesu is broader than the common law in defining force or coercion. Akayesu considers the reality of wartime violence. The Trial Chambers use of the word invasion in Akayesu, rather than penetration used by the Trial Chamber in Furundzija, embraces the victims view of the crime. Adopting invasion shifts the focus to the harm that the assailant causes the victim. The other three completed ICTR cases in which the accused were charged and convicted of sex-based crimes involved Alfred Musema,77 director of the Gisovu Tea Factory; Laurent Semanza,78 former Bourgmestre of Bicumbi Commune; and Slyvestre Gacumbitsi,79 Bourgmestre of Rusumo Commune. 2. Prosecutor v. Musema The prosecutor charged Alfred Musema with rape pursuant to Article 3(g), and other inhumane acts pursuant to Article 3(i), of the ICTR Statute. The indictment alleged individual and superior criminal responsibility under Articles 6(1) and 6(3), respectively. Musema was alleged to have committed and ordered the rape of Tutsi women in the Bisesesero area. The Trial Chamber used the Akayesu definitions of rape and sexual violence80 and found Musema individually criminally liable for rape as a crime against humanity and rape as a mode of committing genocide. On appeal, relying on Kuprskics use of additional evidence pursuant to Rule 115 of the Rules of Procedure and Evidence, the conviction was quashed.81
76. Prosecutor v. Furundzija, Case No. IT-95-17/1, Judgment, 185 (Dec. 19, 1998). This was the first decision by a UN Tribunal convicting an accused of rape as a war crime. Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgment & Sentence (Jan. 27, 2000). Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment & Sentence (May 15, 2003). Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-T, Judgment (June 17, 2004). Musema, ICTR 96-13-T, Judgment at 965. Id. at 194.

77. 78. 79. 80. 81.

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Although the conviction was reversed on a factual issue the Appeals Chamber did not disturb the Akayesu test used by the Trial Chamber. 3. Prosecutor v. Kunarac To many legal scholars, the Prosecutor v. Kunarac judgment was a step backward from the Akayesu threshold. In Kunarac82 the ICTY Appeals Chamber adopted the mechanical Furundzija test and required the Prosecution to prove that the victim did not consent to rape or sexual violence. The Kunarac Appeals Chamber found that non-consensual penetration can be divided into three categories:
(i) the sexual activity is accompanied by force or threat to the victim or third party; (ii) the sexual activity is accompanied by force or a variety of other specified circumstances which made the victim particularly vulnerable or negated her ability to make an informed refusal; or (iii) the sexual activity occurs without the consent of the victim.83

4. Prosecutor v. Semanza84 The prosecutor charged Laurent Semanza with instigating, ordering and encouraging the militia to rape Tutsi women in Bicumbi and Gikoro Communes. The Prosecutor alleged that Semanza was responsible under Articles 6(1) and 6(3) of the ICTR Statute for violating the life, health, physical and mental well-being, and causing cruel treatment such as rape and torture, pursuant to Article 4(a) of the ICTR Statute. Semanza was also indicted for rape and for causing outrages upon personal dignity of women pursuant to Article 3(g) of the ICTR Statute. The Chamber acquitted the Accused of rape in Count 8, not because of a lack of evidence, but on the grounds that the Prosecutor provided inadequate notice to the accused of the charges against him. Therefore, the Chamber found Semanza not guilty as charged pursuant to Article 3(g). The Chamber observed that the OTP did not prove that Semanza was responsible for any rapes other than those charged in Count 10 of the

82. 83. 84.

Prosecutor v. Kunarac, Case No. IT-96-23 & IT-96-23/I-A, Judgment (June 12, 2002). Id. at 442. Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment & Sentence (May 15, 2003).

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indictment, and it convicted him accordingly.85 The problem with the Semanza judgment is the fact that the Trial Chamber expressly rejected the more progressive Akayesu definition and adopted the restrictive Kunarac legal definition.86 However, the Trial Chamber did find that Semanza facilitated the rape of Victim A by instigating the assailants with his words and presence, and as such was a principal perpetrator of rape as charged in Count 10 of the indictment.87 The Trial Chamber did find that Semanza instigated both rape and torture as crimes against humanity on the basis of the same facts. The Chamber considered the elements of rape and torture as crimes against humanity. The ICTY Appeals Chamber in Kunarac found that convictions permissible for both crimes on the basis of the same factual evidence because rape and torture each contain one materially distinct element not contained in the other; rape requires sexual penetration, while torture requires that harm be inflicted for a prohibited purpose.88 The Chamber found Semanza guilty of rape and torture in order to present the complete picture of Semanzas criminal conduct.89 The Semanza Appeals Chamber heard oral arguments in December 2004. The charge of rape as a crime against humanity was not a subject raised in the Appeal. A decision is expected in the near future. 5. Prosecutor v. Gacumbitsi Sylvestre Gacumbitsi was indicted, among other charges, with rape as a crime against humanity pursuant to Article 3(g) of the ICTR Statute.90 The indictment alleged that Gacumbitsi was responsible individually and as a superior under Articles 6(1) and 6(3), respectively. The specific allegation was that Gacumbitsi was responsible for the acts of his subordinates and for facilitating rape and sexual degradation of Tutsi women by inserting objects into their genitals. His speeches, orders, and tolerance of these acts encouraged this conduct. The Trial Chamber applied the restrictive Kunarac legal definition.91

85. 86. 87. 88. 89. 90. 91.

Id. at 474. Id. at 344-46. See id. at 475-77. Id. at 506. Id. Prosecutor v. Gacumbitsi, Case No. ICTR 2001-64-I, Indictment (June 20, 2001). See id. at 321. While there were no rape or sexual violence convictions in the Prosecutor v. Kajelijeli or Prosecutor v. Kamuhanda cases, it is important to note the Kunarac test was applied in these cases as well. See Prosecutor v. Kajelijeli, Case No. ICTR 98-44A-T, Judgment & Sentence (Dec. 1, 2003); Prosecutor v. Kamuhanda, Case No. ICTR 95-54A-T, Judgment (Jan. 22, 2004).

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After reviewing the evidence, the Trial Chamber held that there had been a widespread and systematic attack against the specifically targeted Tutsi civilian population.92 These attacks were discriminatory, as these civilians were targeted because of their Tutsi ethnic origin, or because of a perceived relationship they had to a Tutsi.93 Hutu women married to Tutsi men were singled out for particularly brutal treatment to punish them and send a message to other Hutus thought to be traitors to the Hutu group. The evidence supported the charges that Gacumbitsi, by his very orders and speeches, instigated the assailants conduct. The Trial Chamber found that Gacumbitsi ordered the assailants to kill anyone who resisted.94 The Trial Chamber concluded that: the fact that rape victims were attacked by those they were fleeing from, adequately establish [sic] the victims lack of consent to the rapes.95 I submit that by focusing on the conduct of the victim rather than the acts of the Accused, the Trial Chamber creates further impediment in the prosecution of rape and sexual violence notwithstanding the fact that, in this particular case, the Chamber arrived at the correct decision. I further submit that the Trial Chamber ought to have considered the totality of the circumstances. By virtue of the violent environment that existed in Rwanda generally during this period - particularly in Rusumo, where the attacks took place - consent was vitiated because as a result of intimidation and fear for life, the victim could not resist the criminal assault. Nonetheless, the Chamber found Gacumbitsi guilty of rape as a crime against humanity.96 The Prosecutor has appealed based on the need to clarify the law regarding whether absence of consent is a constituent element of rape as an international crime, among other grounds.97 As described briefly above, the Trial Chambers judgment refers to the victims state of mind in its discussion on lack of consent. The issues raised by the Prosecutor on appeal are whether:
(i) Non-consent of the victim and knowledge of the victims nonconsent, in international law, are essential elements of the crime of rape that the Prosecution must prove. (ii) The presumption, given the coercive circumstances inherent

92. 93. 94. 95. 96. 97.

Gacumbitsi, ICTR 2001-64-T, Judgment at 323. Id. at 324. Id. at 325. Id. Id. at 333. Brief of PetitionerAppellant at 47, 151, Prosecutor v. Gacumbitsi, Case No. ICTR 2001-64-A (Sept. 28, 2004).

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in rape as an international crime, the presumption is that there is no consent (as reflected in the provisions of Rule 96 [of the ICTR Rules of Procedure and Evidence]). (iii) Consent can only have evidential relevance in the limited circumstances where a defense of consent meets the admissibility threshold in Rule 96. (iv) The definition of rape should be made legally and morally consistent with other international crimes, involving the infliction of physical or mental harm upon persons, such as torture or enslavement, and should take into consideration its recognition as a feature of genocide.98

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The matter is pending before the Appeals Chamber. Akayesu holds that rape, as it arises in the context of genocide, crimes against humanity, or war crimes, is a form of aggression occurring in a context of violence.99 The Gacumbitsi Appeals Brief quotes the Special Rapporteur to the UN Commission for Human Rights. The relevant quote reads: [r]ape was systematic and was used as a weapon by the perpetrators of the massacres. This can be estimated from the number and nature of the victims as well as from the forms of rape.100 The use of rape and its impact on its victims is well documented.101 In such a context, some legal scholars and practitioners argue that consent becomes an irrelevant concept. During such conflicts, [t]he manifestly coercive circumstances that exist in all armed conflict situations establish a presumption of non-consent and negates the need for the prosecution to establish lack of consent as an element of the crime.102 However, the current trend of the ICTR and ICTY jurisprudence suggest that the Chambers seem reluctant to abandon consent as an element of rape, as it

Id. at 157. See generally Brief of Petitioner Appellant at 47, 154, Prosecutor v. Gacumbitsi, Case No. ICTR 2001-64-A (Appeals Chamber Sept. 28, 2004). 99. Brief of Petitioner, supra note 98, 157; See Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, 597, 687 (Sept. 2, 1998). 100. Brief of Petitioner, supra note 98, at n. 194 (quoting Human Rights Report, supra note 4, at 16). 101. Id. at 157. 102. Commn on Hum. Rts, Sub-Comm. on Prevention of Discrimination & Prot. of Minorities, Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery, and Slave-like practices during Armed Conflict, at para. 25, E/CN.4/Sub.2/1998.13 (June 22, 1998) (final submission by Gay J. McDougall, Special Rapporteur). This observation may be made of the Rwandan Genocide or the crimes against humanity, which were committed in that context.

98.

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exists in the legislation of most national jurisdictions. The OTP position is that rather than considering the victims state of mind, the Appeals Chambers should view the totality of the surrounding circumstances. 6. Prosecutor v. Nyiramasuhuko103 [the Butare case] The Butare case is an on-going case. There are six accused persons, one of whom is Pauline Nyiramasuhuko, the former Minister of Women and Family Affairs.104 I will only mention in passing that Pauline Nyiramasuhuko is the first woman charged with the crime of genocide or instigating rape as a crime against humanity.105 I believe the legal fraternity is following this case with great interest. III. THE CHALLENGES OF PROSECUTING RAPE AND SEXUAL VIOLENCE Just over a decade ago, very little or no attention was paid to the international criminal prosecution of acts of rape and sexual violence as an international crime. Rape and sexual violence were not treated as serious violations of international humanitarian law or international criminal law, based on the international record of non-prosecution of such crimes. Since the establishment of the ICTR and ICTY there has been consistent progress in the international prosecution of crimes of rape and sexual violence notwithstanding the fact that some set backs in the definition of rape as an international crime have occurred along the way. There are, however, areas in which improvement can and must be made. There may also be some criticism of the OTPs work, and the OTP is able and willing to address those concerns. The OTP now knows that crimes of rape and sexual violence, as international crimes, are difficult to investigate and therefore, difficult to prosecute. The OTP investigators, legal advisors, and prosecutors recognize that crimes of rape and sexual violence go to the very essence and soul of a raped or sexually assaulted person, and the personal injuries suffered are often invisible. The accounts of these crimes based on the witness statements available in the OTP database are disturbing. The OTP
103. Prosecutor v. Nyiramasuhuko, Case No. ICTR 98-42. 104. One of the accused is Sholom Arsene Ntahobali, a store manager and Nyiramashukos son. Of the six accused persons, only Ntahobali and Nyiramashuko are charged with sex-based crimes. Butare is the name of the prefecture where the crimes alleged in the indictment were committed and all the accused are from. 105. Peter Landesman, The Minister of Rape: How Could a Woman Incite Rwandas SexCrime Genocide?, N.Y. TIMES MAG., Sept. 15, 2002. Ms. Nyiramasuhuko is the subject of articles, magazine covers, and other media attention; there is no male indictee who has received similar attention.

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also knows that Rwandan women are shy and tend not to talk about rape when interviewed by male investigators. To overcome this, the OTP now uses female investigators and trial lawyers. However, many victims still continue to feel that exposing their vulnerability by talking about the crimes committed against them serves no good purpose, especially as international criminal prosecutions appear to last forever. The victims of these atrocious crimes feel ignored and invisible. If these crimes are not severely punished the message the international legal community sends is that impunity and grave injustice will be tolerated. The OTP recognizes that rape and sexual violence are serious crimes that must be severely punished. The perpetrator should bear the shame and stigma that society now attributes to the victim. The OTP therefore concurs with Professor Christine Chinkin106 and Doctor Kelly Askin107 when they express the view that it is the rapist who should feel ashamed because after all, it is those perpetrators who are cowardly in preying on defenseless women and girls.108 Over the last ten years, the legal developments in the areas of rape and sexual violence in international law indicate the international communitys recognition that these crimes are serious and deserve redress. The inclusion of these crimes in the ICTR Statute reflects the understanding that these crimes constitute threats to international peace and security and it is properly dealt with under Chapter VII of the United Nations Charter. Crimes of genocide, war crimes, and crimes against humanity are violations of jus cogens, subject to universal jurisdiction.109 The ICTR and ICTY have recognized sexual violence as a tool or mode of committing genocide, war crimes, and crimes against humanity, making such violence
106. Professor Christine Chinkin of the London School of Economics has published extensively in this field and has appeared before the ICTY as an amicus curie. 107. Dr. Askin is a Senior Legal Officer with the Open Society Institute. She is an acknowledged expert in this field. 108. See Christine Chinkin, Womens International Tribunal on Japanese Military Sexual Slavery, 95 AM. J. INTL L. 335 (2001). ([R]ape as practiced in the comfort stations was not an inevitable consequence of war, nor even an instrument of war, but formed part of the very engine of war in which the sexual enslavement of women was considered necessary to the pursuit of military objectives.); Kelly D. Askin, Comfort Women - Shifting Blame and Stigma from Victim to Victimisers, 1 INTL CRIM. L. REV. 5, 29 (2001) (The Japanese comfort stations were considered an important part of the military structure of having women readily available to soldiers for safe sex. These comfort stations were not used as a weapon of terror. They were kept secret to avoid the enemy group from fleeing the area, and many victims were killed to keep the stations a secret.). 109. See generally Hillary Charlesworth & Christine Chinkin, The Gender of Jus Cogens, 15 HUM. RTS. Q. 63 (1993).

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the subject of universal jurisdiction when the constituent elements are met. While important, the development of international criminal law in the area of sex-based crimes is only the beginning of the process of the international prosecution of these crimes. The law is progressively advancing at the procedural level as well. The procedural law must address both the legal issues and the effect the outcome may have on the victim or victims. Prior to a case coming before a Chamber there are people who have suffered as a result of the crimes committed against them. In order to present a case the prosecutors need witnesses to testify. It is at this personal level that the international legal community still requires a great deal of improvement and understanding. In addressing some of these issues, the Prosecutor has put into place a comprehensive prosecution strategy. The Prosecutor created a Rape and Sexual Violence Unit, headed by a female lawyer, and based in Kigali, Rwanda. The Unit has the responsibility to coordinate all investigations in rape and sexual violence cases. During the early years of the ICTR, investigators received little or no training with respect to the methodology of investigating widespread and systematic crimes, genocide, and sexbased crimes. Many investigators had not studied international humanitarian law and had not investigated crimes committed in the context of widespread, systematic rape and sexual violence. Consequently, many were not familiar with the legal elements of the crimes they were investigating. Since the investigations were not methodical, there were multiple statements made by the same witness to investigators of the various NGOs and to a number of OTP investigators. The presence of multiple statements, some of which were exculpatory, created a separate set of problems in prosecuting alleged offenders. It was difficult for a prosecutor who received witness statements to know what questions were put to the witness, what the encounter was like, and whether the witness made more than one statement either to the NGOs, defense investigators, investigative journalists, or OTP investigators. To address this problem, the OTP has created an Information and Evidence Support Section [IESS]. The work of the IESS has significantly improved the quality of the OTPs work. Another unit within the Investigation Division responsible for providing support (including medical care) to witnesses before, during, and after testifying in court has also been created. This Unit is separate from the Witness and Victims Support Section [WVSS] that is in the Registry. The OTP recognizes that this is a small step, however, the importance and relevance of these Units is demonstrated by the fact that the number of witnesses previously reluctant to come forward and testify is increasing. The adoption of a comprehensive prosecution theory and the establishment of a Rape and Sexual Violence Investigative Unit allow investigative and

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trial teams to move forward with a single, clear purpose throughout their endeavour.