Legal analysis on the crime of rape under ICTR jurisdiction

II. 4. Joint Criminal Enterprise theory in sexual violence jurisprudence

Joint Criminal enterprise (JCE) is a form of individual criminal responsibility for crimes where several individuals with a common purpose embark on criminal activity that is then carried out either jointly or by some members of the plurality of persons. And it is characterized by direct or indirect participation in committing a crime, it is also required by the plurality of persons in committing a crime, and the existence of common plan, here the execution must involve in the commission of crime.^63(*)

In a recent case currently on appeal at the ICTR, Prosecutor v. Kajelijeli, it is possible that had prosecutors brought the relevant rape charges under JCE theory, they could have procured a conviction. Prosecutors charged the accused with rape and other inhumane acts as crimes against humanity; both charges were pleaded under individual and command responsibility statutory provisions.^64(*)

The disappointing outcome, despite convincing evidence linking the accused to crimes of rape and sexual violence, was an acquittal. The accused Juvénal Kajelijeli, was the bourgmestre of Mukingo Commune in Ruhengeri Prefecture. In his capacity, he exercised authority over subordinates including members of the police forces, Interahamwe youth militia, and civilians. The prosecution brought forth information that the accused and various governmental officials «conspired among themselves to work out a plan to exterminate the civilian Tutsi population and eliminate members of the opposition, so that the Mouvement Révolutionnaire National pour le Développement (MRND) could remain in power. ^65(*)

Specifically, the accused was found to have made speeches inciting the audience (predominantly MRND members and Hutus) to assault, rape, and exterminate the Tutsis. In the indictment, the prosecution charged that the accused commanded, organized, and supervised attacks within Mukingo Commune during the genocide, during which Tutsi men, women, and children were attacked, abducted, raped, and massacred. Kajelijeli failed to take any steps to stop the rape and sexual assault of Tutsi females that followed from his orders. ^66(*)

Trial Chamber in ICTR acquitted Kajelijeli on all rape and sexual violence charges for lack of appropriate evidence to prove the charges. On the charge of rape as a crime against humanity, the court found the prosecution failed to prove beyond a reasonable doubt that the accused was individually criminally responsible for planning, instigating, ordering, committing, or otherwise aiding and abetting in the planning, preparation, or execution of the rapes that occurred; in other words, there was no evidence directly linking the accused to the rapes committed. In terms of command responsibility, the chamber found that members of the Interahamwe committed the majority of the rapes when Kajelijeli was not personally present, and it was never established that the accused actually ordered the rapes. His instructions were more generally to kill or exterminate.^67(*)

Furthermore, the chamber found it impossible to infer that the accused knew or had reason to know that Interahamwe militia was committing the rapes. On the count of other inhumane acts of sexual violence as crimes against humanity, the trial chamber similarly found evidence to be lacking. The chamber did found that the standard for liability of other inhumane acts was met by acts constituting a serious attack on the human dignity of the Tutsi community as a whole. The chamber said that cutting a woman's breast off and licking it, and piercing a woman's sexual organs with a spear are nefarious acts of comparable gravity to the other acts listed as crimes against humanity, and these acts were committed in the course of a widespread attack upon Tutsi civilians.^68(*) Kajelijeli was not held liable, however, under the individual responsibility charge because the chamber found no evidence that the accused was present or gave any direct order for these acts to be committed. As in the rape as a crime against humanity charge, the general orders to kill and exterminate, combined with a lack of physical presence during the acts, and were insufficient to prove command responsibility of the accused under other inhumane acts.^69(*)

Given the fact set and the substantial evidence of actual rapes occurring in Mukingo Commune during the genocide, the prosecution could have utilized Category 3 of JCE theory in this case. Although the prosecution asserted that the accused, in his position of authority, acted in concert with others and participated in the planning, preparation, or execution of a common scheme, strategy, or plan to commit the crime listed, the indictment did not clearly set forth any JCE theory.

Although JCE Category 1 may have been inapposite in Kajelijeli, given the lack of a clear agreement to commit rapes between the accused and the physical perpetrators, JCE Category 3 seems appropriate to the prosecutor's case for individual responsibility. In this case, rape and other inhumane acts of sexual violence go beyond the proven intended criminal object (to kill and exterminate Tutsis).

However, there was widespread rape in Mukingo Commune, where Kajelijeli exerted direct control over his subordinates. It seems likely that the prosecution could have proven particularly had it worked with investigators to do so from the outset that rape and sexual violence were objectively natural and foreseeable consequences to the object of the JCE and that the accused himself was aware that these crimes would follow from the criminal object to kill and exterminate.^70(*)

The accused was more than an aider or abettor because he actually had the criminal intent to kill or exterminate; he was more than a co-conspirator because the crimes were actually carried out. Although Kajelijeli's criminal intent in terms of individual responsibility under JCE theory could likely have been proven, whether this intent could be extended to hold the accused liable under JCE for his failure to prevent or punish his subordinates from committing foreseeable rape and sexual violence crimes remains questionable.

* ⁶³ Antonio Cassese, International Criminal Law 181 (2003).

* ⁶⁴ Prosecutor v. Kajerijeri, Case No. ICTR-98-44A-T, Judgment and sentence, Dec. 1, 2003

* ⁶⁵ Ibidem.

* ⁶⁶ Ibidem.

* ⁶⁷ Idem, para. 923

* ⁶⁸Prosecutor v. Kajerijeri , Case No. ICTR-98-44A-T, Judgment and sentence, Dec. 1, 2003

* ⁶⁹ Prosecutor v. Kajelijeli (Kajelijeli Judgment and Sentence), Case No. ICTR-98-44AT, Judgment and Sentence para. 923 (Dec. 1, 2003).

* ⁷⁰ Prosecutor v. Kajelijeli(Kajelijeli Judgment and Sentence), Case No. ICTR-98-44AT, Judgment and Sentence para. 922 (Dec. 1, 2003).