Legal analysis on the crime of rape under ICTR jurisdiction

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.

* ¹ Virginia Morris and Michael Scharf, The International Criminal Tribunal for Rwanda , New York, Transnational Publishers,1998, p.409