Legal analysis on the crime of rape under ICTR jurisdiction

II.6. ICTR weakness in conviction for crime of rape and sexual violence

The poorness in the conviction for sexual violence is sensitive in that trend of the jurisprudence in this field over the past years strikes a blow to the credibility of the case set up by the prosecution. Among the poor results that the ICTR has come across; initially crimes of rape and sexual violence were considered as secondary crimes; there has been also low conviction rate for sexual violence and rape. There have been also acquittals like in Ntagerura and Bagambiki; judges noted that the prosecutor had failed to establish guilty beyond reasonable doubt.^81(*) The accused Niyitegeka also was acquitted of rape as crime against humanity, but guilty of crimes against humanity, other inhuman acts, specifically acts of sexual violence. The trial chamber in Kajerijeri case acquitted him on all rape and sexual violence charges for lack of appropriate evidences directly linking the accused of the rape committed, to prove that the accused was responsible for planning, ordering, instigating, committing or o preparation or execution of the crime of rape.^82(*)

Overall, I believe the contribution of the ICTR to the development of international criminal law has been an important one and I believe there is more to come. For example, ongoing cases at the moment include: the first woman accused of rape before an international tribunal; a trial in which the accused was a popular Rwandan singer; and the Media case, where three leaders of the Rwandan media were convicted for genocide, which is currently on appeal. In addition, I have no doubt that lower profile cases will also contribute substantially to the further development of the law. ^83(*) As it complies with the requirements of international law. In future jurisprudence of ICTR will help international court to prosecute rape and sexual violence as violation of international humanitarian law. The jurisprudence as it now stands with a growing string of acquittals for rape will, in fact, do the opposite. The record of this tribunal in history will not only minimize responsibility for the crimes against women, but will actually deny that these crimes occurred. A reader of the ICTR jurisprudence will be left mistakenly believing that the mass rapes had little or nothing to do with the genocidal policies of their leaders.^84(*)

There is a reason why many of the ICTR judgments do not contain rape convictions and why the number of rape acquittals is double the number of convictions. Over the past decade, sexual violence crimes at the ICTR have never been fully and consistently incorporated into the investigative and prosecution strategy of the Prosecutor's Office over the past decade. For the past nine years, no comprehensive prosecution strategy or precise work plan to properly document and bring the evidence of sex crimes into the courtroom has been consistently pursued.

This is not to say that the Prosecutor's Office has neglected this issue entirely it has not.

Approximately half the cases that the court will hear contain allegations of sexual violence.

There have been some commendable efforts made at various periods, but the problem is that they have not been consistently pursued. The squandered opportunities, the periods of neglect and the repeated mistakes have caused major setbacks to effective investigations and prosecutions of sexual violence crimes.^85(*)

The lack of sustained attention by the leadership has in turn resulted in a weak institutional capacity within the Prosecutor's Office to investigate effectively and to develop the evidence to prosecute these crimes.^86(*)

Some cases have moved forward without rape charges, sometimes even when the prosecutor is in possession of strong evidence. Other cases with rape charges have come to trial without adequate investigations to ensure that the necessary evidence had been collected. The Prosecutor's Office has never articulated and pursued a consistent prosecution strategy, including how this crime fitted into the genocidal policies of the leaders, nor has it consistently employed effective investigative techniques to fully document the crimes against women. The four prosecutors who have held this office since 1994 have adopted a variety of approaches to this issue. As a result, there has never been one identified work plan pursued consistently by all investigators and trial lawyers in putting together their cases on this issue over the nine years of the court's existence.^87(*)

Sexual violence against women and girls in situations of armed conflict or systematic persecution constitute s a clear breach of international law. Perpetrators of sexual violence can be convicted for rape as a war crime, a crime against humanity, or as an act of genocide or torture, if their actions meet the elements of each.

Leaders in positions of command responsibility who knew or had reason to know of such abuses, and who took no steps to stop subordinates who committed sex crimes, can also be held accountable.^88(*) It is therefore part of the mandate of the ICTR, and the work of the prosecutor, to investigate effectively and prosecute this crime with the same seriousness as other international crimes. Accountability for the sexual violence should be integrated into virtually all the cases, given its widespread and systematic use during the Rwandan genocide.

At the prosecutorial level, there was no strategy articulated for the comprehensive inclusion of rape charges in all the cases, and Goldstone neglected to include rape in most of the early ICTR indictments.^89(*)

Much of the prosecutor's strategy concentrated on more arrests and indictments. The prosecutor's plan to add some 100 new arrests was steadily scaled back as it became clear that the criteria for selection of suspects were poorly conceived and targets of investigation were not prioritized by relative importance or likelihood of arrest, leading to misallocation of human and material resources. ^90(*)

Sexual violence investigations and prosecutions suffered greatly during prosecutor Del Ponte's time. The momentum generated during prosecutor Arbour's time dissipated after the first year. There was a steady decline in the number of new indictments that contained sexual violence charges, as well as a lack of commitment to adequately develop the evidence in cases where rape charges had previously been included.^91(*)

In our analysis we found the Cyangugu case where despite trial testimony about rape, ample possession of evidence and repeated public promises, the prosecutor never added the rape charges. Another is the trial of three media executives, known as the Media trial, which gave scant attention to the vicious gender propaganda that explicitly encouraged sexual and lethal attacks on Tutsi women. In a bid to comply with pressure to speed up the trials, prosecuting teams were encouraged to cut unnecessary charges. Sexual violence charges were seen to be in that category.

The dependence on the choice of prosecutor as the determining factor for whether sexual violence charges will be brought is problematic. It signals the need for international justice institutions to be mandated explicitly to ensure that attention is given to the effective investigation and prosecution of sexual violence crimes.

Proper investigations are the foundation to the success of every case. The one of ICTR problem in prosecuting rape, it is the lack of consistent attention to this issue by the prosecutor's investigations division. Sexual violence investigations at the ICTR have generally been poor in quality and are often not trial-ready when handed to prosecutors.

Another problem with witness statements is that most are presented in narrative form, so the attorney cannot distinguish between observations and hearsay. In some cases, attorneys have not come to investigate in Rwanda where the crime committed. This defeats the purpose of having an investigations division. Responsibility for this problem lies with the chief of investigations, who has three commanders of investigation under whom the teams are organized. And we observed that the connection of OTP of the ICTR and Rwandan prosecution was low.

* ⁸¹Prosecutor v. Niyitegeka, Trial Judgment, Case No. ICTR-96-14-T, May 16, 2003.

* ⁸²Prosecutor v. Kajerijeri, Case No.ICTR-98-44A-T, Judgment, para 920

* ⁸³ B. Nowrojee, Sexual violence during the Rwandan genocide and its Aftermath, New York.1996

* ⁸⁴ Ibidem

* ⁸⁵ Unless of course the rape charges are withdrawn by the current prosecutor, as was done recently in the case of Emmanuel Ndindabahizi in 2003.

* ⁸⁶ N. Binaifer, Your justice is too slow: will the ICTR fail Rwanda's rape victims?, Boston Consortium Fellow, November,2005

* ⁸⁷ N. Binaifer, Your justice is too slow: will the ICTR fail Rwanda's rape victims?, Boston Consortium Fellow, November,2005

* ⁸⁸ Ibidem

* ⁸⁹ Breton L., 2002, Analysis of trends in sexual violence prosecutions in indictments by the ICTR, Montreal, November, 2002

* ⁹⁰ For an excellent quantitative analysis that cites the figures on the trends in sexual violence prosecutions at the ICTR, see Breton-Le Goff (2002:7).

* ⁹¹ Ibidem.