Legal analysis on the crime of rape under ICTR jurisdiction

III. 1. Mechanisms to the International Criminal Tribunal for Rwanda

The ICTR mechanisms for prosecuting rape cases should be based on its statute and its adjudicated cases as jurisprudence. Because ICTR. In general, Rape is only mentioned twice in the Statute of the ICTR, under Article 3 on Crime against Humanity and under Article 4 on Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II, as a criminal act, listed under sub (e). This does not mean that rape can only be prosecuted under these two provisions. The Statute does not explicitly mention rape as a constituent act of genocide. Based on the case law of the ICTR, it is totally clear that rape is an integral part of genocide. This is proved by the convictions of rape constituting genocide, starting with the Akayezu conviction. This means that mechanisms to prosecute rape cases and sexual violence should be based on its case law like Akayezu judgment, because the crime of rape is not clearly defined in ICTR statute.

III.2. ICTR Concurrent Jurisdiction with other national courts

This is a mechanism used by the ICTR to prosecute genocide cases in different courts especially to the Rwandan jurisdictions.

The ICTR's concurrent jurisdiction with national courts, particularly Rwanda's, created a situation where multiple courts could claim jurisdiction over a particular case. Concurrent jurisdiction describes any situation where two or more national courts or at least one national court and an international court have legal authority to adjudicate the same issue.

The Statute of the ICTR makes it clear that the Tribunal and domestic courts, including those of Rwanda, share jurisdiction over genocide cases. Article 8(1) of the Statute states that the International Tribunal for Rwanda and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens for such violations committed in the territory of neighboring States.^95(*)

This is an explicit recognition that cases relating to the 1994 Genocide and falling within the stated territorial, temporal, and subject matter jurisdiction can be heard in either domestic courts or at the Tribunal.

III.3. The ICTR rules 11bis of procedure and evidence

The ICTR Rules of Procedure and Evidence provide a mechanism whereby the Tribunal may transfer a case to a national jurisdiction. Rule 11bis stipulates the conditions under which the Tribunal may transfer an indictment to another court. The rule outlines, inter alia, to which suspects it applies, to which states it applies, certain judicial and due process thresholds such states must meet, and monitoring and revocation mechanisms. In considering transfer requests, the Tribunal has been mostly concerned with ensuring the defendants' right to a fair trial in the transfer country. If the Prosecutor wishes to transfer the case of an indicted defendant to a national jurisdiction, she must submit a request to the President of the ICTR, who in turn designates a Trial Chamber to conduct a hearing on whether the transfer is acceptable.^96(*)

* ⁹⁵ Statute of the International Criminal Tribunal for Rwanda, Nov. 8, 1994,

* ⁹⁶ The ICTR's Rules of Procedure and Evidence were written pursuant to Article 14 of the ICTR Statute,