Legal analysis on the crime of rape under ICTR jurisdiction

2. Delimitation of the study

The work is compulsorily limited in domain, in time and in space. In the domain, this study is limited in public international law especially in international criminal law. In time, it is limited from 1994 where the International Criminal Tribunal for Rwanda was created by the United Nations Security Council resolution. And in space, it limited on Rwandan territory.

3. Problem statement

Recently, a crime of rape was not prosecuted in international criminal law, because of the absent of its definition. After making legal analysis on the ICTR cases, putting in consideration the brutality of the crime of rape and sexual violence, considering also that these crimes have not been prosecuted neither as war crime nor genocide or crime against humanity until 1998. With much concern also that domestic law has to be improved in relation to the brutality of the crime of rape. We analyzed different cases where we found unfairness in prosecuting rape cases where accused acquitted on crimes they committed because of unqualified of prosecutor who give insufficient evidences. Because sometimes, prosecutors didn't make investigations and collecting evidences as well as possible. 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. Basing on that analysis, the problematic based on the following questions.

- What is the legal framework for the prosecution of the crime of rape and sexual violence?

- What are applicable mechanisms to ensure the prosecution of rape and sexual violence as an impact to Rwandan law?

These two questions are to be answered through the research in order to have clear analytical answers and understanding to them.

4. Research Hypotheses

The hypothesis is a proposal answer to the question that a researcher tries to ask in the problem statement related to the topic^2(*)

1. Any national jurisdiction should at the outset be aware of what sexual violence related charges are available to it under international law, in order to implement best practices when they prosecute crimes of rape and sexual violence and they should relevant training to all of its investigators and lawyers.

2. In prosecuting the crime of rape, there should be applied legal and institutional mechanisms which have to be applied especially in procedure of prosecuting the crime of rape and sexual violence in Rwanda as an improvement of Rwandan criminal procedure.

5. Research objective

Any work or project to be accomplished successfully must have certain objectives to be achieved; otherwise there is no need of carrying out if it has no objective. Objectives help the researcher to keep to the scope the study by defining the area of knowledge that is focused on. It is in this context that during the research the following objectives had been focused on:

- To analyze deeply the problems of prosecution at the ICTR related to rape and look for solution

- To issue all possible mechanisms in order to prosecute crimes of rape and sexual violence

-To show implications of ICTR jurisprudence to Rwandan jurisdictions in prosecuting rape and sexual violence.

6. Research Methodology

Techniques can be defined as procedure that allows the researcher to collect data and information in relation to the research topic. For this work, the researcher used a documentary technique. It helps the researcher to consult in different Books, laws, Treaties, Report and Electronic sources which related to the research topic. The method is a set of intellectual operations which enable to the researcher to analyze, understand and to explain the analyzed reality. This is done through different methods. In our research we have used.

Exegetic method: which is helps us to analyze and interpret the collected information, it is also helps us to analyze and interpret laws rules and data related to our topic.

Analytic method: The analytical method consists to bring order, structure and meaning data collected.

Synthetic method: This method helps us to make a summary of different data collected from different sources which were consulted.

* ² MUHIRE Y., Research methodology of law, ULK, Kigali, Faculty of Law, 2011, p.65