Legal analysis on the crime of rape under ICTR jurisdiction

CHAPTER II: THE LEGAL FRAMEWORK FOR THE PROSECUTION OF RAPE AND SEXUAL VIOLENCE

In this chapter we tried to analyze different cases basing on the crime of rape and we criticized them for their convictions.

II.1. The ICTR jurisprudence

The ICTR has developed significant jurisprudence on the prosecution for rape and sexual violence since 1994. The ICTR judgments established that rape and sexual violence were major components of the Rwandan genocide. In 1994 rape and sexual violence were committed as part of widespread and systematic attack against a targeted group of Tutsi women.36(*) An example of such a case adjudicated by the ICTR was the Prosecutor v. Akayezu. In addition to successfully prosecuting the first rape based genocide conviction as explained in the previous chapter, the ICTR decision in Akayezu case has two other significant impacts.

First of all, the ICTR was the first to define rape at the international level, secondly on the basis of national and international law and jurisprudence, the ICTR concludes that it is acceptable to convict the accused of two offences in relation to the same set of facts in the following circumstances: «Where the offences have different elements; or where the provisions creating the offences protects different interests; or where it is necessary to record a conviction for both offences in order fully to describe what the accused did.»^37(*).

Another of the main contributions of the ICTR has been the improvement of the law on Genocide. Where the trial chamber in Akayezu case provided rape as the element of genocide. The ICTR Statute adopted the definition of Genocide from the 1948 Convention against Genocide, and its first application in an international criminal law context was at the ICTR. Jean Paul Akayezu, the first person to be convicted of Genocide was a bourgmestre of Taba Commune, in ex-Gitarama prefecture. This was the first Genocide conviction before an international tribunal. Another notable conviction was that of Jean Kambanda, the Prime Minister of the Interim Government at the time of the events in 1994. Kambanda's conviction represents the first conviction of a former head of government before an international tribunal.^38(*)

Referring to the definition of rape in various national jurisdictions, the Trial Chamber's definition was guided by a conceptual framework, rather than a «mechanical description of objects and body parts.» The Trial Chamber noted the cultural sensitivities involved in public discussions of intimate matters and recalled the painful reluctance and inability of witnesses to go into details about the alleged behavior.^39(*)

Consequently, the definition for rape given by the Akayesu Trial Chamber was: «a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.» A Trial Chamber of the ICTY also adopted this definition in Prosecutor v. Delaliæ two months later.^40(*) As we mentioned, there are cultural sensitivities that must be respected, in particular the question of how descriptive the elements should be and to what level of detail a victim must describe the horrendous events inflicted upon her or him. Should the word «penetration» be used, or is the phrase «physical invasion» as captured by the Akayesu decision is enough to provide sufficient notice and information to all parties involved in the proceedings? This should not be analyzed well though the ICTR trial chambers before taking decision on those counts related to rape, because according to different authors written on rape, physical invasion is not enough for prosecuting the crime of rape.

* ³⁶A.Odora, Rape and sexual violence in international law. ICTR contribution, vol.12 New Eng.J., 2005, p.135

* ³⁷ Prof. Eric D., Reports of Orders, Decisions and Judgments 1998, Bruylant Bruxelles, vol.1,1998, p.284

* ³⁸ M., Inés , The development of international law at the ICTR, P.69-70

* ³⁹Ibidem.

* ⁴⁰ Idem, p.74