Legal analysis on the crime of rape under ICTR jurisdiction

During the whole occupation of this study, we have done the research on critical analysis on rape case in the jurisprudence of the ICTR and its implications under Rwandan law, and we tried to analyze cases and establish deeply the prosecution of rape in international criminal law.

In the first chapter, we dealt with general overview of the crime of rape from which we define rape according to different sources, where rape considered as the act of torture, sexual violence, sexual assault, sexual slavery and sexual mutilation, etc. We have seen also how rape can be act of causing great suffering or serious injury to bodily or mental physical hearth, Referring to Akayezu case at the ICTR, which is the important case in improvement and developments of international criminal law related to the crime of rape and sexual violence.

We have seen also how rape and sexual violence prosecuted and brought before international criminal tribunals. We tried to see different international tribunals for example the ICTY, and ICTR with their jurisdictions and their competence, based on their creation. We found that the ICTY as ad hoc tribunal established in 1993 with competence of Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991.

Those crimes are Grave breaches of the Geneva Conventions of 1949, Violations of the laws or customs of war, Genocide and crimes against humanity committed in the former Yugoslavia in that time. Then we have seen the ICTR with its mission to prosecute persons responsible for crimes of genocide, crimes against humanity and violation of the article 3 common the Geneva conventions and Additional Protocol II, committed in Rwandan territory from April 1, 1994 to December 31, 1994.

In this chapter also we tried to classify the crime of rape and sexual violence in the ICTR and to show how rape characterize the elements of each principle crime under ICTR for example rape as act of genocide, rape as crimes against humanity and rape as violation of the article 3 common to the Geneva convention and Additional Protocol II, and we tried to show how rape can be taken as war crime when it is committed in internal or non internal armed conflicts.

The second chapter was dealt with criticisms on ICTR cases related to the crime of rape and we tried to analyze different judgments and criticize them related to the crime of rape and sexual violence. We tried to analyze the definition of rape adopted by the ICTR Trial Chambers which was defined as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. This chapter deals with criticisms on different cases to show some weakness in prosecuting rape cases at the ICTR jurisdictions.

The third chapter was dealt with mechanisms for prosecuting the rape at the International Criminal Tribunal for Rwanda and in Rwandan jurisdiction. In our research we tried to show laws applied to handle rape cases in the International Criminal Tribunal for Rwanda and mechanisms to prosecute the crime of rape and sexual violence.

After analyzing different cases in considering also the brutality of the crime of rape, the definition of rape adopted at the ICTR on rape cases and sexual violence jurisprudence can be incorporated and be applied in Rwandan law especially in considering the definition of rape from ICTR trial Chambers as highlighted in our suggestions of this work without leaving the prejudice in the law books where it instead talk about the penalties other than defining what rape means. This will help also the law makers to have a standing point on the prosecuting and punishing the crime of rape and sexual violence.

According to our analysis, the law on rape and sexual violence leave a gap in as far as what is meant by rape and instead goes for punishing and we wonder the basis on which they rely on when prosecuting someone, thus they should draw the ICTR definition in order to remove any bias in rendering justice.

The sexual violence that took place during the genocide should be fully investigated and where possible, prosecuted and punished. We suggest that the government of Rwanda should ensure that all police inspectors receive mandatory training on the issue of rape and other sexual abuse, including their status as crimes punishable by law.

Specifically, we urge that police inspectors investigating genocide crimes receive training to ensure that discriminatory attitudes about female victims of sexual abuse do not prevent serious investigation of sexual abuse or undermine its effective prosecution. A greater number of female police inspectors should be hired and trained in order to collect rape testimonies in a more systematic and effective manner.

The International Tribunal must fully and fairly investigate and prosecute sexual violence. Rape, sexual slavery and sexual mutilation should be recognized and prosecuted, where appropriate, as crimes against humanity, genocide crimes, or war crimes.

The International Tribunal must step up its efforts to integrate a gender perspective into its investigations. Previous investigative methodology and procedures, which have failed to elicit rape testimonies, must be amended. In particular, the Tribunal must ensure that the issue of violence against women is treated with the same gravity as other crimes against humanity within its jurisdiction. Investigations of rape and other forms of sexual assault should be conducted by teams that include women investigators and interpreters (preferably women) skilled in interviewing women survivors of gender-based violence in the larger context of the atrocities which occurred.

Rape survivors should be given the requisite privacy and time to relate the crimes committed against them to Tribunal investigators. The investigators should also explain to interviewees the basic procedures of the investigation

In Rwanda it is argued that the crime of rape and sexual violence was lastly committed mainly against Tutsi women and was intended to destroy in whole or in part a particular group. A definition of rape in such cases should be drafted from previous judgments pronounced in ICTR of Akayezu or even in Gacumbitsi case.

In Akayezu case, the crime of rape was defined as a physical invasion, (it is important to note that the use of term invasion in the this case permits the consideration of acts which do not involve sexual penetration of the victim, such as committing oral sex against a woman or the anal rape of a man; where a person is forced to rape another or made to inflict physical invasion of sexual nature upon themselves, or where rapists committed masturbation with and on the victim's body) of a sexual nature committed on a person under circumstances which are coercive.

Furthermore, in drafting the definition of rape and sexual violence basically in as far as the consent is concerned, rape was committed by force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against the targeted group or other persons or where the accused takes advantage of coercive environment, in this case victims of rape can't genuinely consent to sexual violence, therefore the consent when trying genocide perpetrators should not be a point of defense. In addition in Gacumbitsi case the appeal chamber noted that the prosecution can prove non - consent beyond reasonable doubt by proving the existence of forceful circumstances under which meaningful consent is not possible. In addressing of issue of impunity, it is important to note that, Rwandan courts are more preferable than international jurisdictions in what concerns protection of victims defendants witnesses providing redresses.

BIBLIOGRAPHY

I.LEGAL INSTRUMENTS

INTERNATIONAL INSTRUMENTS

- ICTR Statute (International Criminal Tribunal for Rwanda)

- ICTY Statute (International Criminal tribunal for the former Yugoslavia)

- ICC (International Criminal Court)

- Rome statute of the International Criminal law

- Geneva Conventions of 12 August 1949, and Additional Protocol II

NATIONAL INSTRUMMENTS

- Law No. 27/2001 of 28/04/2001 relating to the Rights and Protection of the child against violence, Official Gazette, No. 23 of 1/12/2001

- Organic law No. 13/ 2008 of 19/ 05/ 2008 establishing the organization, functioning and competence of Gacaca courts in Rwanda.

- Law No. 59/2008 of 10/09/2008 on prevention and punishment of gender based violence.

- Organic law No.01/2012 0f 02/05/2012 instituting penal code, official gazette No. special of 14/06/2012.

II. CASES

- Prosecutor v. Akayezu, Case No. ICTR-96-4-T, Judgment, September, 1998

- Prosecutor v. Kayishema and Obed Ruzindana judgment, Case No. ICTR-95-1-A

- Prosecutor v. Gacumbitsi Case No. ICTR-2001-64-T, Judgment June 17, 2004

- Prosecutor v. Kajerijeri , Case No. ICTR-98-44A-T, Judgment and sentence, Dec. 1, 2003

- Prosecutor v. Kamuhanda, Trial Judgment, Case No. ICTR-97-23-S, September4, 1998.

- Prosecutor v. Muhimana, Judgment and Sentence, Case No. ICTR-95-1-1, April 28, 2005,

- Prosecutor v. Musema, Case No. ICTR-96-13- Judgment July 31, 2001

- Prosecutor v. Nahimana, Barayagwiza and Ngeze, Judgment, Case No. ICTR-99-52-A, nov.2007.

- Prosecutor v. Niyitegeka, Trial Judgment, Case No. ICTR-96-14-T, May 16, 2003.

- Prosecutor v. Semanza, Case No.ICTR-97-20, May 20, 2005.

III. BOOKS

- Antonio Cassese, International Criminal Law 181 (2003).

- Askin, K. D., Sexual violence in decision and indictments of the Yugoslavia and Rwanda tribunals, Berkley J. int'l, 2003.

- De Brouwer, A.M.T., Supranational criminal Prosecution of Sexual Violence, vol.20, The Hague, Intersentia, 2005.

- Odora, O., Rape and sexual violence in international law ICTR contribution, vol.12, New Eng.J. Int'land Company.

- L.J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law, Amsterdam: Vrije University, 2005.

- H. NIAMB, Judicial creativity at the international tribunals, The Hague, May 2010.

- SHATTERED LIVES et al. , A role for Conspiracy Law in International Tribunals, 88 Minn. L. Rev. 30, 54 (2003).

- Theodor Meron, "Rape as a Crime under International Humanitarian Law," American Journal of International Law (Washington, D.C.), vol. 87, July 1993.

- K. KRIANGSAK, International criminal law, Oxford University Press Inc., New York, 2001.

- Schletana C. & Van Der Wolf W. The International Tribunal for Rwanda: facts, cases, documents 240, eds. 1999.

IV. ELECTRONIC SOURCES

- Madeleine H. Morris, The Trials of Concurrent Jurisdiction: The Case of Rwanda, Am. Dipl. (1998), available at http://www.unc.edu/depts/diplomat/AD_Issues/amdipl_6/.html#national, accessed on 08 /11/2012.

- Press Release, Human Rights Watch Applauds Rwanda Rape Verdict: Sets International Precedent for Punishing Sexual Violence as a War Crime (Sept.2, 1998), available at http://www.hrw.org/press98/sept/rrape902.htm , accessed on 10/12/2012.

- Prosecuting rape and sexual violence at the ICTR available at http //www.law.harvard.edu /student/orgs/jlg/vol291/ accessed on 08/11/2012.

- Gender Based Violence training module. Available at http://www.migeprof.gov.rw/IMG/doc/, accessed on 20^th November, 2012.

V. REPORTS

- Bonnet, "Le viol des femmes survivantes du génocide du Rwanda,"; African Right, Rwanda.

- Prof. Eric D., Reports of Orders, Decisions and Judgments 1998, Bruylant Bruxelles, vol. 1998

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

- E.E.E Mbela, Reaching out to survivors of violence, The legacy of ICTR gender justice: Presentation made during ICTR' legacy Symposium, December 2007.

- H. B. Jallow, Challenges of international criminal Justice: Presentation herd in Arusha, 29 November 2007.

- MUSHINGWAMANA E., child rape in Rwanda: an analytical overview.

Death, Despair and Defiance, pp. 748-797.

- Security Council Resolution 955 (1994), establishing the International Tribunal for Rwanda, Article 3.

- Freedman, W.G., ICTR's jurisprudence on rape, Columbia Journal of transnational law, vol.44, 2006.