Legal analysis on the crime of rape under ICTR jurisdiction

III.4. Mechanisms to Rwandan Law

Rwandan law provides for the prosecution of rape under its criminal law. Rwanda also is obligated to prosecute rape under the international conventions that it has ratified, the Geneva Conventions and their Additional protocols and, for reasons outlined above, the Genocide Convention. Rape is a crime under Article 196 of the 2012 Rwandan Penal Code, and is punishable according to different categories.^97(*) There have been attempt to prosecute rape and sexual violence in Rwanda under national laws basing on different contexts such as; organic law No. 27/2001 of 28/04/2001 establishing rights and protection of children against violence, the law No.13/2008 of 19/05/2008 establishing Gacaca courts in Rwanda, the law No. 03/2009/ of 26/05/2009 concerning the transfer of cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and other states and rape also is provided under the law No..01/2012 0f 02/05/2012 instituting penal code. All those laws were enacted with specificity and are written in different books. Therefore, each law is to be analyzed below.

During the Rwandan genocide in 1994, women were subjected to brutal forms of sexual violence. Women were individually raped, gang- raped with objects such as sharpened sticks or gun barrels, held in sexual slavery or sexually mutilated. In most every case, these crimes were inflicted upon women after they had witnessed the torture and killings of their relatives, and the destruction and looting of their home.

III.4.1. Rape under the law No. 59/2008 of 10/09/2008 on prevention and punishment of Gender- Based Violence

This law has enacted this law after having seen many cases related to rape and sexual violence, though, the law is in place and applicable where offenders are apprehended, tried and seriously convicted there are still rooms where a rapist can escape justice or innocent person can get convicted as child rapist due to either ambiguity in law, the law which does not cover each aspect of the violence against the child or insufficient means (human and material) in pursuit of criminals.^98(*) Women were raped or gang-raped repeatedly as they fled from place to place. Others were held prisoner in houses specifically for the purpose of rape for periods ranging from a few days to the duration of the genocide.^99(*)

Many years later, gender based violence along with other forms of violence continue to dominate the landscape of Rwanda. HIV & AIDS and extreme poverty aggravate the impact of violence on communities, and contribute to violence. Rwanda has drawn up strong human rights legislation and as well is a signatory to specific international conventions which under bind the lives of women and children. These mechanisms should ensure that all citizens can live an existence free of physical and sexual abuse, with access to property rights, and to all of the medical, educational and judicial systems that are in place in the society. ^100(*) The punishment in this law depending on the victim's age. It has also provided for the definition of rape as «any sexual act with a child whatever means or methods used is considered as rape.^101(*) In most countries rape is defined as all act of sexual penetration regardless of its nature committed against another person by violence, constraint, menace or surprise. The absence of a clear definition of rape under Rwandan law makes its qualification subjective and in most cases leaving some cases not tackled.^102(*)

Due to the weakness of the definition of rape under Rwandan law there have always been differences in the various judgments. This crime which may depend on the appreciation of the prosecutors or judges handling this case may depend on how they appreciate evidences and testimonies at hand. However, this may cause inconsistencies in rendering justice.

In Rwandan post genocide, the crime of rape and sexual violence was terrible. It was continued to be committed, that's why this law created for dealing with rape cases and related crimes for prosecuting them. Basing on the gravity of this crime the government took measures of creating this law to punish those crimes, because recently there were no law punished crimes based on gender.

* ⁹⁷ Law No. 01/2007 of 02/05/2012 instituting penal code, published in O.G no. special of 14 June 2012

* ⁹⁸ MUSHINGWAMANA E., child rape in Rwanda: an analytical overview,p.3

* ⁹⁹ Shattered L. , Sexual Violence during the Rwandan Genocide and its Aftermath, USA, September 1996 by Human Rights Watch

* ¹⁰⁰ X, «Gender Based Violence training module», available at http://www.migeprof.gov.rw/IMG/doc/, accessed on 20^th November, 2012.

* ¹⁰¹ Law No. 27/2001 of 28/04/2012 relating to Rights and protection of Child in Rwanda , published in O.G no.23 of 01 December, 2001

* ¹⁰² Ibidem.