Legal analysis on the crime of rape under ICTR jurisdiction

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