Legal analysis on the crime of rape under ICTR jurisdiction

II. 5. Targeted Application for maintaining Legitimacy

Given the prevalence of rape and other forms of sexual violence during the Rwandan genocide, those in positions of power who could have controlled and prevented such crimes from occurring should be held responsible. As international criminal law is beginning to recognize, rape and sexual violence in situations of armed conflict do not represent isolated or incidental occurrences; rather, they constitute grave and serious crimes used to effect genocide and widespread violence against populations.

These crimes produce long-term consequences, not only for the victims, but also for their surrounding communities. While the definitions of rape and sexual violence first pronounced in Akayezu and reaffirmed recently in Muhimana are broad and encapsulate the integral aspects of sexual violence crimes in war situations, the ICTR jurisprudence presents a somewhat weak record of convictions for these crimes. Given the frequency with which prosecutors now bring rape charges, it is necessary that they consider and investigate whether the evidence lends itself to the use of JCE theory.^71(*)To remain consistent with the broader goals of criminal law, prosecutors and courts alike should be careful to limit the use of this theory to situations in which an accused is truly culpable.

Learning from the failures to procure sexual violence convictions in cases such as Kajelijeli, prosecutors at the ICTR began pleading these crimes under JCE theory to hold high-level criminals culpable. For example, in the amended indictment filed with the Trial Chamber III, Prosecutor v.Karemera, prosecutors charged top government officials with the crime of rape, both as an element of complicity in genocide and as a crime against humanity.

As a part of the widespread or systematic attacks perpetrated by the three accused, the militia raped Tutsi women and girls in specified prefectures, and these rapes were the «natural and foreseeable consequence of the object of the joint criminal enterprise to destroy the Tutsi as a group.^72(*)

The indictment also states that all three accused were individually responsible because they were aware that rape was a natural and foreseeable consequence, given the widespread nature of the crimes, and they knowingly and willfully participated in that enterprise nonetheless. Under command responsibility, the indictment asserts that the accused had the capacity to halt or prevent such crimes and failed to do so, or to punish those that committed them.^73(*)

Currently, in Karemera trial, JCE Category 3 applies, as opposed to JCE Category 1, if there is no convincing evidence of the accused intent to commit the specific crimes of rape or sexual violence. According to experience at the ICTY, the prosecution has a high burden of proof and, in order to prevail, should proffer evidence of the following for each accused: the existence of a plurality of persons; the existence of a common purpose (i.e., JCE) and a common plan under that JCE; the accuser's participation and specific role in the JCE; the intent of the accused to participate in the JCE; and the goal of the JCE.^74(*)

In other words, evidence in Karemera that each accused, acting in concert with others, participated as a leader and with the requisite intent to further the purpose of destroying the Tutsi as a group in a specific way seems necessary for the prosecution to succeed. Under JCE Category 3, the prosecution needs to prove that rape and sexual violence were a natural and foreseeable consequence of that JCE to destroy the Tutsi as a group.^75(*) While the JCE theory offers exciting possibilities for prosecutors at the ICTR to bring sexual violence charges, increased use of the theory has its draw backs.

However, there are ways to limit the use of JCE that address some of these drawbacks. Only the most culpable, or those high-level officials whom aster minded the genocide and oversaw its execution, should be prosecuted and held liable under JCE theory. But for their criminal purposes and plans, the crimes of genocide and against humanity arguably would not have occurred in Rwanda in 1994, despite longstanding ethnic tensions.^76(*) Richard Goldstone, the first Chief Prosecutor at the ICTR, asserts that ascribing blame to leaders can, in fact, be very important to healing a community: it avoids collective guilt on the part of an ethnic, or other, group, and it allows community members to separate themselves from wrongdoing. In addition, holding genocidal masterminds liable and sentencing them to severe prison terms serves to incapacitate them and to specifically deter them from committing future crimes; it also generally deters future similar crimes among others.^77(*) Another way of limiting the use of JCE theory appropriately is to require that an accused made a substantial contribution to the crime charged.

The role played by the accused in the JCE is important in determining the size of a contribution: only those perpetrators who were heavily involved in a JCE and closely linked to it should be prosecuted and convicted on these grounds. In practice, this reinforces the idea that high-level criminals be targeted when using JCE theory, because they presumably playa substantial part in designing, conveying, and overseeing criminal plans with requisite intent and particular purposes in mind. The substantial contribution limitation also satisfies the retributive theory of punishment in that it punishes the individual most heavily responsible for a crime, even if that individual did not physically perpetrate the crime. Future members of society will be deterred from making substantial contributions to major criminal plans, and those convicted will be unable to do so.^78(*)

Given the relatively high evidentiary burden to prove crimes using JCE theory even under Category 3 its practical use should be narrowly tailored. Indictments should be pled with sufficient specificity and supported by evidence such that JCE allegations do not become all-encompassing in nature or a fallback strategy merely because the prosecution is unlikely to succeed on other grounds.

With regards to rape and sexual violence specifically, it is especially important that prosecutors do not indict, and judges do not convict, on JCE grounds if cases lack sufficient evidence to meet the evidentiary burdens; otherwise, problems discussed in prosecuting under more traditional statutory theories will resurface. The result will be failure to convict on sexual violence grounds and failure to accurately reflect the rapes that occurred during the genocide in ICTR case law.

Future jurisprudence at the ICTR, ICC, and other international criminal courts should reflect effective use of JCE theory with regard to crimes of rape and sexual violence. The theory should be targeted at high-level officials who made substantial contributions to the JCE in order to maintain consistency with traditional criminal law theories. ^79(*) Still, to uphold legitimacy at the ICTR and in international criminal law, prosecutors and courts should keep in mind the drawbacks of over-utilizing the JCE theory and thus narrowly tailor its application. As a general principle, courts should find those in control who ordered crimes in situations of armed conflict and genocide most culpable. If rape and sexual violence were a part of that criminal intent, or closely resulted from it, then liability should follow. ^80(*)

* ⁷¹ Prosecutor v. Muhimana, judgment and sentence, Case No. ICTR-95-1-1, April,28,2005

* ⁷² Prosecutor v. Karemera, Ngirumpatse,and Nzirorera, Case No. ICTR-98-44-1.

* ⁷³ Prosecutor v. Karemera et al. op cit, para. 66.

* ⁷⁴Ibidem.

* ⁷⁵Idem, pp. 67-70

* ⁷⁶ Idem, p. 71

* ⁷⁷ Karemera Amended Indictment, Case No. ICTR-98-44-I

* ⁷⁸ Ibidem

* ⁷⁹X, Prosecuting crimes of rape and sexual violence at the ICTR available at http//www.law.harvard.edu/accessed on 08/11/2012

* ⁸⁰idem