Legal analysis on the crime of rape under ICTR jurisdiction

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 crime^41(*). 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.

* 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