Legal analysis on the crime of rape under ICTR jurisdiction

I.1.3. Rape as act of torture

In Akayezu case, the Trial Chamber also made several critical findings with regards to crimes of rape and sexual violence. Although it did not convict him on these grounds, the chamber stated that rape can constitute torture under Article 3(f) of the ICTR Statute because both are used for purposes such as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity.^8(*)

I.1.4. Sexual violence

This is considered to be any act of sexual nature; committed on a person under the circumstances which are coercive, it is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact^9(*).

I.1.5. Sexual assault

This is sometimes called rape; it is a physical attack by a person involving sexual intercourse with or sexual penetration of another person without their consent.^10(*)

I.1.6. Sexual slavery

It is a special case of slavery which includes various different practices such as:

- forced prostitution

- Single owner sexual slavery

- Ritual slavery, sometimes associated with traditional religious practices

- Slavery for primarily non- sexual purposes where sex is common or permissible

In general, the nature of slavery means that the slave is de facto available for sex.^11(*)The alleged acts indicted by the ICTY prosecutor in the Foca case as enslavement and rape might also qualify a sexual slavery if prosecuted under the ICC statute. The victims in that case were allegedly confined in house which was being run similar to a brothel where they were treated as personal property of the perpetrator and were subjected to repeated rapes and sexual assaults.

It has also been pointed out that some Rwandan women acquiesced to forced temporary marriage and performing sexual services to their so-called husband in order to save their children from the ongoing genocide. Some of the women locked up or confined, while others stayed at their home to protect themselves or their family members from danger threatened by their husband should they attempt to escape.^12(*)

The ICC elements of crimes as existing when perpetrator exercises «any or all of the powers attaching to the right of ownership over or more persons, such as by purchasing, selling, lending or battering such a person or persons, or by imposing on them a similar deprivation of liberty and causes such a person to engage in one or more acts of sexual nature»^13(*)

I.1.7. Sexual mutilation

In Rwanda during genocide, often rape of women was followed or accompanied by mutilation of the sexual organs of features held to be characteristic of the Tutsi ethnic group. Sexual mutilation included the pouring of boiling water into the vagina: the opening of the womb to cut out the unborn child before killing the mother; cutting off the breast; and the mutilation of the vagina.^14(*)

I.1.8.The act must be inhuman in nature and character causing great suffering or serious injure to bodily or mental /physical health

In Akayezu case, acts of rape and sexual violence were charged as crimes against humanity for causing serious body or mental harm, when committed as part of an intentional campaign to destroy people as such on ethnic basis. The accused was found individually criminally responsible for crimes against humanity, for abetting and aiding the infliction of serious bodily and mental harm on Tutsi women for the purpose of destroying the Tutsi group as such.^15(*)

* ⁸Prosecutor v. Akayezu, case No. ICTR 96-4-T, Judgment, September 1998, para.597.

* ⁹Ibidem.

* ¹⁰ Prosecutor v. Akayezu, case No. ICTR 96-4-T, Judgment, September 1998, para. 690

* ¹¹ Ibidem.

* ¹² Ibidem.

* ¹³ ICC elements of crimes, article 7(1)

* ¹⁴Coordination of Women's advocacy, «mission on gender-Based War Crimes against Women and Girls during the Rwandan Genocide: Summary of surveys and Recommendations, p 7.

* ¹⁵ W.G. Freedman, ICTR's jurisprudence on rape , Columbia Journal of transnational law, vol. 44 ,2006, p. 994