Legal analysis on the crime of rape under ICTR jurisdiction

II.1.1.3. Committing

Committing requires the personal or physical, direct or indirect, participation of the accused in the relevant criminal act, or an omission to the same effect, where it is established that he had a duty to act, with the requisite knowledge. An accused will be held criminally responsible if he actually carries out the actus reus of the enumerated crimes.

There can be several perpetrators in relation to the same crime where the conduct of each of them fulfils the elements of the definition of the substantive offence. The requisite mens rea is that the accused intended that a criminal offence occur as a consequence of his conduct. In Muhimana trial, he was found to have personally raped seven women and was convicted of rape as crime against humanity.^46(*)

In several recent ICTR cases allegations for rape based on the accused personally committing the crime of rape have not been sustained or they have been overturned because of insufficient evidence. And Musema appeals chamber overturned Musema's rape conviction because new evidence was presented to the appeals Chamber that established reasonable doubt as to Musema's guilty.^47(*)

In Kamuhanda case, the trial chamber acquitted him of rape as crime against humanity because the witnesses who testified about rape did not observe it themselves.^48(*)

However, ICTR has held that an accused may criminally responsible for an omission as a principal perpetrator, if the following elements must be fulfilled: the accused must have had a duty to act, mandated by a rule of criminal law; the accused must have had the ability to act; the accused failed to act, intending the criminally sanctioned consequences or with awareness and consent that the consequences would occur; and the failure to act resulted in the commission of the crime.^49(*)

The ICTR Appeals Chamber has left open the question as to whether this duty to act must derive from criminal law or whether any legal obligation to act is sufficient.

II.1.1.4. Aiding and Abetting

Aiding and abetting is constituted by acts that consist of practical assistance, encouragement or moral support to a principal offender of a crime. The assistance may consist of an act or omission; occur before, during, or after the act of the principal offender; and be removed in time and place from the actual crime.

The presence during the commission of a crime within ICTR jurisprudence has been held to constitute aiding and abetting. In Kayishema case, the court found the presence of spectator who knew that his or her presence would encourage perpetrators in committing a criminal act can lead to be liable for the crime committed by the perpetrator.^50(*)

The individual aiding and abetting doesn't means sharing the principal's Mens rea, it is to know about the essential elements of the crime, includes Mens rea of the perpetrator and make conscious decision to act knowing that it is a support of committing a crime.^51(*)

II. 2. The role of consent in defining and proving rape

It cannot deny that a women's consent should be the prerequisite for anything on her body. The definition of rape in international criminal law presupposed a context of an armed conflict and in which victims are under non consent attack where there is sexual violence over them with their consent.^52(*)

On the issue of consent as an element of the crime of rape the reasoning of the judgments is frustratingly circular. Coercion and force were held to be too narrow to be the central elements of crime of rape, as the crucial principal common to national jurisdictions was the issue of sexual autonomy and consent. The presence of force could be taken as evidence of non consent, coercion was held to encompass most conduct which would negate consent, and consent itself was to be defined in the context of the surrounding circumstances. The choice of consent rather than coercion as the central element of the crime of rape under international criminal law is problematic on a theoretical as well as practical level. ^53(*)

As demonstrated, with reference to the national law provision it is considered possible to consent to the violent attack and it is understandable that none of the crimes against humanity enumerated in article 3 of the ICTR statute required to prove non consent as element of the crime.

* ⁴⁶Prosecutor v. Muhimana, Judgment and Sentence, case No. ICTR-95-1-1, April 28,2005, para.552

* ⁴⁷Prosecutor v. Musema, Case No. ICTR -96-13 judgment and sentence January, 27,2000para. 193

* ⁴⁸Prosecutor v Kamuhanda, Trial judgment, Case No. ICTR -97-23-S,September 4,1998

* ⁴⁹Ibidem.

* ⁵⁰ Prosecutor v. Kayishema, op. cit Para.201

* ⁵¹Ibidem.

* ⁵²Ibidem.

* ⁵³H. NIAMB, Judicial creativity at the international tribunals, The Hague, May 2010, P. 143