Legal analysis on the crime of rape under ICTR jurisdiction

II.7. Prosecuting of rape with inadequate evidence

One of the challenges investigators face in collecting sexual violence evidence is a lack of skills in how to obtain such evidence. Investigators receive no training on interviewing methodology for rape victims, and the majority of the investigators are male. Often investigators come from backgrounds where they have not had any experience with this issue, or they believe this is not a crime that deserves serious attention. Many investigators, though fully equipped with the necessary skills to investigate cases, lack training and direction on how to elicit information about sexual violence from witnesses. Generally, when investigators start working at the ICTR, they receive little or no systematic training focused on their substantive responsibilities. In particular, there is no standard training to develop skills in sexual violence investigations, and all knowledge is based on individual experience and initiative developed on the job.^92(*)

The years of varying levels of neglect with regard to collecting sexual violence evidence have meant that there are gaps in presenting the evidence at trial. At the prosecution level, there are concerns among trial lawyers that they do not have strong evidence to proceed with rape charges in some cases. This is not the situation for all cases, but it is true particularly for the important cases, such as those of top military and government officials, where the command responsibility link is more difficult to prove. This leaves the trial lawyers in the difficult position of either deciding to drop rape charges as the case begins to move forward, or prosecuting the case with weaker evidence, risking an acquittal. Unless more work is done by the Prosecutor's Office, what we are likely to see are rape convictions at the level of the local authorities, but not at the top levels of government and military.

There are some committed investigators and lawyers in the Prosecutor's Office who are trying to address this issue, but their efforts reflect an individual initiative rather than a comprehensive institutional commitment. The Cyangugu case is one example where rape charges should have been brought, but never were, even though the prosecutor had evidence. This example highlights not only the lack of transparency and accountability in the prosecutorial decision- making process at the ICTR, but also the lack of commitment to justice for rape victims. At the outset, no sexual violence charges were included in the Cyangugu case. However, in 1999, around the time that the sexual assaults team was making a strong push to collect evidence of sexual violence, the Prosecutor's Office came across a number of statements by rape victims.^93(*) The statements of these women contained strong evidence, particularly against military commander Samuel Imanishimwe, who had not only raped women himself, but also killed a woman by inserting a pistol into her vagina and shooting her to death.^94(*)

In our research, we analyze that in that case, the evidence to prosecute rape was available. The prosecution would have only needed to formally amend the indictment to put the accused on notice. Unfortunately, rather than pressing to retain the amended indictment in the interests of justice, the prosecutor opted to withdraw the application.

In general, the nation office of the prosecution should be reformed in order to prevent the culture of impunity; agent of Rwandan prosecution in charge of prosecuting rape should be trained to the prosecuting rape and sexual violence, we have seen that Rwandan prosecutors do not have knowledge in prosecuting rape and do not know how to collect evidence of rape.

CHAPTER III. MECHANISMS FOR PROSECUTING THE CRIME OF RAPE AND SEXUAL VIOLENCE

* ⁹² B. Nowrojee, «Sexual violence during Rwandan genocide and its Aftermath», New York, November,2005

* ⁹³ The prosecutor v. André Ntagerura et al., case No. ICTR-99-46-T, para 409

* ⁹⁴ Chhatbar, Sukhdev. 2001. «Cyangugu/prosecution's motion on rape denied,» Internews, Arusha, 14 February. http://www.internews.org/activities/ICTR_Reports/ICTRNewsFeb01.html#0214a, accessed on 20^th 2012.