Legal analysis on the crime of rape under ICTR jurisdiction

II. 3. The challenges of prosecuting crime of rape and sexual violence

Many years ago, no attention was paid to the international criminal prosecution of rape and sexual violence as international crime. International criminal law officially recognizes sexual violence crimes, these crimes largely were neglected in practice in international tribunals. Since the establishment of the ICTR, there has been no consistent progress in international prosecution of rape and sexual violence.^54(*)

However, since Akayesu, ICTR prosecutors have been unable to procure rape convictions due to a lack of evidence. Physical perpetrators, not personally on trial, are unwilling to confess to committing acts of rape or sexual violence at the ICTR. This is perhaps because in the Rwandan criminal justice system, which was established post-genocide, perpetrators can be charged with a first category offence, and subject to the death penalty if convicted.^55(*)

Also, rape in Rwanda has been noted as a difficult crime to document because of a dearth of accurate eyewitness testimony, the stigmatization of victims, worries of public shame among victims, and fears of perpetrators still living with the victims.^56(*)

Nonetheless, it is not impossible to collect evidence of sexual crimes and successfully prosecute rape. The probability of effectively documenting crimes of a sexual nature increases when trained female investigators and interpreters, who are sensitive to victim trauma and who can offer victims protection, are employed.^57(*)

Also, the appointment of women in key positions in the ICTR has assisted in the effective prosecution of crimes of sexual violence and rape, and can continue to do so.

The crime of Rape historically has been characterized as a private crime, committed in isolated and discrete cases. Viewed as an incidental by product of war, sexual violence has been overlooked by the international community in the past. Rather than an occasional act committed by a delinquent soldier, the conflicts in Rwanda and the former Yugoslavia demonstrate that rape and sexual violence in situations of armed conflict can be systematic and integral to genocidal violence and an overarching political framework; the acts often have no sexual element at all.^58(*)

During these conflicts, rape and other forms of sexual violence, such as forced nudity and torture, perpetrated against predominantly female civilians were ordered, encouraged, and overlooked by superiors.

While widespread evidence of rape and sexual violence existed in Rwanda, the initial treatment of crimes relating to sexual violence in the ICTY and ICTR differed. For example, the UN resolution establishing the ICTY specifically referenced sexual violence against Muslim women, although the resolution creating the ICTR made no mention of the topic. Possible reasons for the inconsistent response.

Since the establishment of the ICTR and ICTY there has been no consistent progress in the international prosecution of rape and sexual violence. There are however, areas in which improvement can be made. There may also be some criticism of the Office of the Prosecution's work and the Office of the Prosecution is able and willing to address those concerns.^59(*)

The accounts of these crimes based on the witness's statements available in the OTP database are disturbing. The OTP also knows that Rwandan women are shy and tend not to talk about rape when interviewed by a male investigator.^60(*)

During the early of the ICTR, investigators received little or no training with respect to the methodology of investigating widespread or systematic crimes, genocide, and sex based 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.^61(*)

Despite evidence that rape and other sexual violence was widespread and was resorted to be part of the strategy of genocide, it has not been easy to testify in Arusha for reasons to understand. Many such a painful chapter in their lives, to relieve the trauma through their testimony and to subject themselves to gravelling cross examination of such intimate aspects of their lives. Many of them may have moved on their lives and established families and may fear the unfortunate stigma associated with victims of sexual violence may be especially seen to forget the past.^62(*)

This problem of the prosecution on rape cases is also exist in Rwandan prosecution, the concrete example that I found during the research where judicial officers in charge of prosecuting rape and sexual violence were unable to show evidences of rape to the accused. Those show us the unfair of national public prosecution authorities in prosecuting which is the lack of training relating to the prosecution of rape and sexual violence.

* ⁵⁴ O. Obote, op cit, P.158

* ⁵⁵Madeleine H. Morris, the Trials of Concurrent Jurisdiction: the Case of Rwanda, Am. Dipl. (1998), available at http://www.unc.edu/depts/diplomat/AD_Issues/amdipl_6/morris2.html#national.Accessed on 15th November, 2012.

* ⁵⁶SHATTERED LIVES et al. «A Role for Conspiracy Law in International Tribunals» 88 Minn. L. Rev. 30, 54 (2003).

* ⁵⁷Shattered Lives, supra note 1.

* ⁵⁸Press Release, Human Rights Watch Applauds Rwanda Rape Verdict: Sets International Precedent for Punishing Sexual Violence as a War Crime (Sept. 2, 1998), available at http://www.hrw.org/press98/sept/rrape902.htm accessed on 20/11/2012

* ⁵⁹ O. Obote, op cit, p.157

* ⁶⁰ Idem, p. 158

* ⁶¹ Idem, p.165

* ⁶²H. B. Jallow, Challenges of international criminal Justice: Presentation herd in Arusha, 29 November 2007