Legal analysis on the crime of rape under ICTR jurisdiction

II. 2. Background of the crime of rape and sexual violence

Despite mass rape and other forms of sexual violence committed against women in times of conflict around the world, the perpetrators of those crimes have been rarely prosecuted and brought before international criminal tribunals^16(*)

I.2.1. Rape and Sexual Violence in International Criminal Law

We are going to talk about rape and Sexual Violence according to different international tribunals.

I.2.2. The International Criminal Tribunal for the Former Yugoslavia (ICTY)

The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1993 with competence of trying offenders for crimes provided in article 2 to 5 of its statute namely: grave breaches of the Geneva Convention of 1949, violation of the laws or customs of War, Genocide, crimes against humanity, rape and sexual violence as War crimes.^17(*)

I.2.3. The International Criminal Tribunal for Rwanda (ICTR)

The International Criminal Tribunal for Rwanda was created by the United Nations Security Council Resolution 955 of November 8, 1994, with the aim to prosecute persons responsible for committing serious violations of international humanitarian law committed in Rwanda from 1^st April to 31^st December 1994, like Genocide, crimes against humanity, and violations of Common Article 3 of the Geneva Conventions and Additional Protocol II of the Geneva Conventions which govern internal armed conflicts. And to prosecute Rwandan citizens responsible for such violations committed in the territory of neighboring states in that time.

Genocide includes acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group. Rape is clearly a prosecutable crime under the mandate of the International Criminal Tribunal for Rwanda. It is explicitly identified as one of the crimes against.^18(*) The Statute also specifies rape to be a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II.^19(*)

Rape can also be a form of torture under international law as well as an act of genocide. At this time, the International Criminal Tribunal for Rwanda is undertaking its investigation and compiling evidence to bring indictments against those accused of organizing the genocide. The ICTR has in effect generated a lot of development with regard to the jurisprudence in International Criminal law particularly for sexual offences and rape. The Akayezu case since the adoption of the Geneva Convention of 1948 where a conviction for either genocide or crime against humanity by using rape and sexual violence as a mode of committing a crime was rendered.^20(*)

According to one of the most famous decisions for the subject of rape, the Akayesu case decision before the ICTR, the Trial Chamber considered that the traditional mechanical definition of rape did not adequately capture its true nature and instead offered a definition of rape as physical invasion of a sexual nature, committed to a person under circumstances which are coercive. While rape has been defined in certain national jurisdictions as non-consensual intercourse, variations on the act of rape may include acts which involve the insertion of objects50 and/or the use of bodily orifices not considered to be intrinsically sexual.^21(*)

* ¹⁶ A. M. DE Brouwer, Supranational criminal prosecution of sexual violence, vol.20,The Hague,Intersentia, 2005,p.4

* ¹⁷Askin, K.D. sexual violence in decision and Indictments of the Yugoslavia and Rwanda Tribunals, printed in USA,1999

* ¹⁸ Security Council Resolution 955 (1994), establishing the International Tribunal for Rwanda, Article 3.

* ¹⁹ The International Tribunal for Rwanda: facts, cases, documents 240 (C. Schletana & W. Van Der Wolf, eds. 1999).

* ²⁰ E.E Mbela, Reaching out to survivors of violence, The legacy of ICTR gender justice: Presentation made during ICTR' legacy Symposium, December 2007

* ²¹ Akayesu Trial Judgment, op. cit, para. 437;