Legal analysis on the crime of rape under ICTR jurisdiction

III.4.2. Rape under the law No. 13/2008 of 19/05/ 2008 establishing the organization competence and functioning of Gacaca in Rwanda

After having seen the gravity of crimes committed during 1994 Rwandan genocide, the government enacted Gacaca courts to decrease big number of prisons of genocide who were waiting to be adjudicated. This law gave the power to Gacaca courts to prosecute those who committed genocide and related crimes as it was provided in ICTR Statute. And Gacaca courts classified in different categories according to their gravity.

Through the 1994 genocide in Rwanda, rape was used as a weapon, a method to inflict sufferings on victims and to dehumanize them. The crime of Rape committed that time was accompanied by torture of objects brutality.

Concerning the crimes of rape and acts of torture committed on sexual parts during genocide, it is also the one of the reasons sexual torture was highly considered to the extent of putting it in the first category.^103(*)

This category according to the mentioned in organic means any person who committed or was an accomplice in the commission of a offence that puts him or her in the category of planners or organizers of genocide at the national level as leaders.^104(*)

This law, specifically on the provision of the sexual torture, seems to be vague on one hand because it does not defined rape and sexual torture. The implication to national law is that crimes provided in the law established Gacaca were the same as those provided in ICTR statute.

III.4.3. Rape under the law n° 01/2012/ of 02/05/2012 instituting Rwandan Penal Code

Rape is a crime provided in Article 196 of the law instituting Rwandan Penal Code. According to this law rape is defined as «causing another person to engage in a non-consensual sexual intercourse by using force, threat or trickery». ^105(*) This penal code also provided all crimes punishable in ICTR like genocide, crimes against humanity; it means that Rwandan law started to be developed based on ICTR jurisprudence date. But there is a gap relating to the definition, where the validity of the crime of rape based on non consensual intercourse. According to our analysis, rape can be committed by using other ways not only using sex. But the law does not provide any other way to commit a crime of rape. That is a problem criticized during our research. And we suggest to the Rwandan legislator to revise the provisions relating to the crime of rape and sexual violence.

III.4.4. Organic law n°03/2009/ of 26/05/2009 concerning the transfer of cases from ICTR to Rwandan jurisdictions

The government of Rwanda implemented Organic Law No. 11/2007 regulating transfer of cases to the republic of Rwanda, as part of a continuous effort to align Rwandan law dealing with transfer cases from the ICTR with the ICTR Statute itself in order to facilitate the successful transfer of cases from the ICTR to Rwandan courts.^106(*)

The transfer law created a dual system in Rwanda, in which certain legal provisions, procedures, and guarantees apply specifically to cases transferred from the ICTR or other states to Rwanda but not to cases that originate in the domestic system.^107(*) Contrary to genocide cases that originate in Rwandan courts, ^108(*) those that are transferred from the ICTR are heard exclusively by the High Court in the first instance and by the Supreme Court on appeal.

This is explores the historical and legal background of the ICTR and applicable transfer jurisprudence. Specifically, this section discusses the post-genocide situation of Rwanda and its role in the formation of the ICTR, the ICTR's mandate in relation to courts of national jurisdiction, the Tribunal's and Rwanda's transfer regimes, and, finally, how the ICTR has applied its transfer requirements to Rwanda to date. This history illustrates how, despite Rwanda's efforts at creating a legal regime compliant with ICTR standards and its own national interest in adjudicating these genocide cases, the Tribunal continues to insist that the Rwandan system falls short of meeting its stringent transfer requirements.^109(*)

The International Criminal Tribunal for Rwanda's (ICTR or Tribunal) Rule of Procedure and Evidence 11bis allows the Tribunal to transfer accused persons to domestic courts in order to expedite the hearing of the thousands of genocide cases still waiting on the ICTR's overloaded docket. So long as certain baseline requirements are met, Rule 11bis, on its face, does not distinguish between domestic Rwandan courts and other jurisdictions. However, despite granting requests for transfer to other countries' courts, the Tribunal has repeatedly denied applications for transfer to Rwanda notwithstanding numerous requests. Further, behind such requests lies the pressing need to resolve all outstanding cases before the Tribunal's looming in 2013 termination date.

This Note explores the requirements for a successful transfer to a domestic jurisdiction set forth in Rule 11bis and how the Government of Rwanda has labored, through legislated judicial reform, to meet those requirements. After analyzing the history and founding principles behind the formation of the ICTR, the Note then explores how the Tribunal has applied the 11bis requirements for transfer applications to countries other than Rwanda and to Rwanda itself, as well as the International Criminal Tribunal for the former-Yugoslavia's (ICTY) application of the Rule.

Finding an inconsistent application of the Rule between applications for transfer outside Rwanda and to Rwanda itself, the note offers a more comprehensive balancing test that the ICTR should consider when determining whether to transfer cases to domestic courts. Finally, this Note argues that in weighing countervailing judicial interests expressed in the formation of the ICTR against specific due process concerns, the Tribunal may, in specific cases, be able to transfer cases to Rwanda, thus contributing to the overall interests of justice and the utilitarian goal of unloading the Tribunal's docket.

The Rwandan jurisdictions should apply the international law in its legal texts, which should be also a mechanism to improve national law in prosecuting rape cases.

During our research we have seen that the Rwandan organ of prosecution have some unfairness in prosecuting the crime of rape for example we found where the police officers in charge of investigations and collecting evidence who are not qualified because of lack of training related to the crime of rape and sexual violence. How can someone can be investigator without know the procedure to make investigations? First of all prosecutors should be trained, because the lack of skills of prosecution it causes impact to National public prosecution authority. The government should train investigators in related to the procedure used in preparing investigations and evidence, and it should recruit lawyers for preparing future qualified investigators.

* ¹⁰³ Law no. 13/2008 of 19/05/ 2008 establishing Gacaca courts, published in O.G. n° 11 of 1^st June 2008

* ¹⁰⁴ Ibidem,

* ¹⁰⁵ Organic law no 01/2012 of 02/05/2012 instituting Rwandan Penal Code, official gazette No. special of 14 June 2012

* ¹⁰⁶ Law No. 03/2009/ of 26/05/2009, published in O.G. n° special of 26/05/2009

* ¹⁰⁷ Idem, art. 54

* ¹⁰⁸Law No. 13/2008 of 19/05/2008, available at www.amategeko.net/display_rubrique.php?ActDo=all&information accessed on 25/11/2012.

* ¹⁰⁹ Jesse Melman, The Possibility of Transfer(?): A Comprehensive Approach to the International Criminal Tribunal for Rwanda's Rule 11bis To Permit Transfer to Rwandan Domestic Courts, 79 Fordham L. Rev. 1271 (2011). Available at: http://www.ir.lawnet.fordham.edu/flr/vol79/iss3/15, accessed on 20/11/2012