THE PROSECUTOR v. SAMUEL IMANISHIMWE, EMMANUEL BAGAMBIKI, ANDRÉ NTAGERURA
Case No. : ICTR-99-46 T
Submitted by :
The Coalition for Women?s Human Rights in Armed Conflict Situations
March 1st , 2001
2. Testimonies given during the trial by Witnesses LAM and LBI have alerted the Amici to the fact that a grave injustice is being committed in not prosecuting the Defendants for egregious crimes of sexual violence despite the availability of evidence. The Amici also note the decision of the Trial Chamber on February 14, 2001 that the Prosecutor cannot lead evidence on rape because it is a crime that is not charged in the indictment. This Brief is therefore submitted pursuant to Rule 74 to provide the Court with the legal and factual arguments regarding the need to amend the indictment to include charges of sexual violence.
3. This Brief will show the following:
5. During the proceedings in the present case, evidence of rape and other sexual violence emerged from the spontaneous testimony of two Prosecution witnesses. In particular:
6. In summary, the Witnesses testified that rape and other sexual violence occurred during the massacres in the Cyangugu prefecture and that women were taken as slaves and raped repeatedly by the soldiers. The women that resisted going with the soldiers were killed.
7. These testimonies are a small representation of the sexual violence committed in the Cyangugu prefecture in 1994. Like the other genocidal massacres in Rwanda in 1994, rape and other sexual violence was prevalent during the massacres in the Cyangugu prefecture.
8. In general, rape and other sexual violence was an integral part of the 1994 genocide in Rwanda. Rape, sexual slavery, forced sexual nudity, and sexual mutilation were committed on a large scale against Tutsi women and some Hutu women perceived as Tutsi sympathizers. The sexual violence was designed to result in death or to destroy a woman physically, mentally and socially and eliminate her capacity to participate in the reproduction and production of the community. In this way, the sexual violence was a tool of the genocide, as explained in the Prosecutor v. Akayesu:
In light of all the evidence before it, the Chamber is satisfied that the acts of rape and sexual violence described above, were committed solely against Tutsi women, many of whom were subjected to the worst public humiliation, mutilated, and raped several times, often in public, in the Bureau Communical premises or in other public places, and often by more than one assailant. These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole. [emphasis added]
Prosecutor v. Akayesu, (ICTR-96-4-T), Judgment, Sept. 2, 1998, paras. 121, 421, 430, 437, 706 and 731.
Rwanda: Death, Despair and Defiance, African Rights, September 1994;
Report on Assignment to Rwanda, Maricela Daniel, Community Services Coordinator, UNHCR, Kigali, 12 June to 24 July 1995.
Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath, Human Rights Watch/Africa Human Rights Watch Women's Rights Project/ Federation Internationale des ligues des Droits de l'Homme, September, 1996 [hereinafter ?Shattered lives?].
Rwanda: Killing the Evidence: Murder, Attacks, Arrests and Intimidation of Survivors and Witnesses, African Rights, April 1996.
?Etude sur les violences faites aux femmes?, AVEGA-AGAHOZO, Avec l?appui financier du Bureau d?Appui à la Coopération Canadienne, Kigali, December 1999, p.30.
See also Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States between 1 January and 31 December 1994, UN Doc. A/55/435-S/2000/927, 2 October 2000, para. 133;
Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), Annex, U.N. Doc. S/1994/1405 (1994), p.3.
9. In one study by a Rwandan NGO, Avega-Agahozo, based on interviews with approximately 1,125 women in 3 cities, Kigali, Butare and Kigungo, 74.5% were aware that women had been victims of sexual violence, while 39% of women admitted to personally being such victims; 42.2% knew that women had been stripped naked with 28.4% admitting that they personally suffered this treatment. Others have placed the figures even higher, and some believe that almost every woman and adolescent girl who survived the genocide was raped.
Etude sur les violences faites aux femmes, AVEGA-AGAHOZO, Kigali, December 1999, p. 30 and 33.
Shattered Lives, at 24.
10. This sexual violence was a result of a widespread campaign that taught Hutus to hate Tutsi women. Tutsi women were depicted as being arrogant, devious and dangerously beautiful women who steal Hutu husbands and Hutu jobs. They were called ?KIZUNGEREZI? which means ?the woman who makes men fall in love?. They were accused of being bad mothers and bad wives. The deliberate portrayal of Tutsi women as beautiful and arrogant bred hatred and jealousy against them.
Etude sur les violences faites aux femmes au Rwanda, AVEGA-AGAHOZO December 1999, pp. 18-19;
Shattered Lives, pp. 18-19;
Prosecutor v. Akayesu, Judgment, para. 732.
11. These negative stereotypes of Tutsi women were publicized as part of a hate propaganda in Rwanda preceding and during the 1994 genocide. The propaganda often contained pornographic and violent images which served to legitimate sexual violence against Tutsi women.[1] This use of hate propaganda and incitement to rape was recognized by the Trial Chamber in the Akayesu judgment. The Trial Chamber observed:
[a]s part of the propaganda campaign geared to mobilizing the Hutu against the Tutsi, the Tutsi women were presented as sexual objects ... This sexualized representation of ethnic identity graphically illustrates that Tutsi women were subjected to sexual violence because they were Tutsi. Sexual violence was a step in the process of destruction of the Tutsi group ? destruction of the spirit, of the will to live, and of life itself.
Prosecutor v. Akayesu, Judgment, para. 732.
12. This hate propaganda inciting sexual violence against Tutsi women was well known throughout Rwanda. It was contained in reports by major newspapers like Kangura, and by Radio et Television Libre des Milles Collines (RTLM).
Zirkana no 6, March 1993, cover (depicting, inter alia, an RPF member asking a Hutu naked woman tied to a stake: ?Madam, what is your problem? You refuse to give yourself to us? Here, you have to share, don?t you??), reproduced in ibid, at 189;
Kamarampaka 7, April 1993 no 15, p14 (depicting the gang-rape of a Hutu woman by the RPF.)
Kangura no 40, March 1993, as cited in Chrétien at 153.
13. It is respectfully submitted that it is logical to infer from this context that the Defendants were aware of this propaganda and that they knew that any genocidal massacres would be accompanied by sexual violence.
14. The Prosecutors allege in the indictment that the Defendants are criminally liable for the massacres against Tutsi civilians in the Cyangugu prefecture in April to July 1994. In particular, the Indictments claim that the Defendants Ntagerura and Bagambiki, who had positions of authority in the government, planned the massacres against the Tutsi civilians in the Cyangugu prefecture, and that they directly participated in the training, instructing and arming of the military and para-military groups that committed the massacres. The Prosecutor also claims that subordinates of Bagambiki and Imanishimwe, who was a military commander, participated in the massacres against Tutsi civilians. All three Defendants are accused of giving orders to execute Tutsi civilians.
Paras. 3.16, 3.23, 3.24. 3.26, and 3.27, Bagambiki and Imanishimwe Indictment;
Para. 9.3, 11, 12.1, 12.2, 14.3(i) and 14.3 (ii), Ntagerura Amended Indictment.
15. Thus, the Defendants are charged with planning, ordering, and directly participating in the genocide that, according to the testimony of Witnesses LBI and LAM, included mass killing, rapes, enslavement and other sexual violence against Tutsi women. Moreover, the Defendants are charged with being responsible for the actions of their subordinates in carrying out the massacres. The Amici note that the evidence on record shows that these subordinates also raped and enslaved Tutsi women in the course of their killing for which the Prosecutor claims that the Defendants are criminally liable. Thus, the sexual violence to which the Witnesses testified is part of the same course of events for which the Defendants are being tried.
16. Moreover, the acts of sexual violence that occurred in the Cyangugu prefecture to which the Witnesses LBI and LAM testified must be considered in the context of the history of rape and sexual violence in the Rwanda genocide in general. The rampant hate propaganda which incited sexual violence against Tutsi women meant that genocidal massacres were accompanied by sexual violence. It is logical to infer from the recognized history of rape during the genocide and the hate propaganda against Tutsi women that the Defendants knew or should have known that genocidal massacres would be accompanied by sexual violence. The Prosecutor alleges that the Defendants are criminally responsible for these genocidal massacres for their direct participation and under the principle of command responsibility. It is therefore submitted that the Defendants should also be tried for the sexual violence committed as part of the massacres for which the Prosecutor claims they are liable.
17. The ICTR Rules do not impose any time limit within which the Prosecutor may request to amend the indictment. Rule 50 of the ICTR Rules, which governs the amendment of indictments, states:
The Prosecutor may amend an indictment, without prior leave, at any time before its confirmation, but thereafter, until the initial appearance of the accused before a Trial Chamber pursuant to Rule 62, only with leave of the Judge who confirmed it but, in exceptional circumstances, by leave of a Judge assigned by the President. At or after such initial appearance, an amendment of an indictment may only be made by leave granted by a Trial Chamber pursuant to Rule 73?[2]Thus, the Rule specifically permits an indictment to be amended during trial.
Rule 50, ICTR Rules of Procedure and Evidence, as amended 14 July, 2000, IT/32/REV.18, with amendments of 12 January, 2001, IT/32/Rev. 19. [hereinafter ICTR Rules]
18. This Rule is modeled on various national statutory provisions which allow indictments to be amended during trial. Amendments are generally allowed where it can be made without injustice.
Northern Territories [of Australia] Criminal Code, s. 312.
New South Wales [of Australia] Criminal Procedure Act 1986 , s. 64
Canadian Criminal Code, s. 601(3)
New York Criminal Procedure Law, s. 200.70.
19. The issue regarding the timing of amendments was addressed by the Trial Chamber in the Prosecutor v. Kajelijeli. It confirmed that the Rules do not preclude an amendment of the indictment at any time:
As to the propriety of the timing of the Prosecutor?s Motion, the Chamber concurs with the jurisprudence of the Tribunal in The Prosecutor v. Musema, ICTR-96-13-T (6 May 1999) (Decision on the Prosecutor?s Request for Leave to Amend the Indictment), which held, at par. 17 that, "[?] Rule 50 of the Rules does not explicitly prescribe a time limit within which the Prosecutor may file to amend the Indictment, leaving it open to the Trial Chamber to consider the motion in light of the circumstances of each individual case.
Prosecutor v. Kajelijeli, ICTR-98-44A-T, Decision on the Prosecutor?s Motion for Leave to amend the indictment, January 25, 2001, para. 35.
20. The only requirement specified in the Rules regarding the indictments is that an indictment must meet a prima facie standard in order to be confirmed by a Judge. Article 18(1) of the Statute states that a Judge shall confirm the indictment if he or she is satisfied that the Prosecutor has established a prima facie case.
Articles 18(1), ICTR Statute
21. It is respectfully submitted that by applying the principle contained in Article 18, an amendment of an indictment is permissible if it meets the same standard as required to confirm original indictments, namely, if the facts establish a prima facie case.
22. The ICTR Statute and the Rules of Procedure and Evidence give the Chamber the authority to oversee as well as supplement the work of the Prosecutor in order to ensure that the mandate of the Tribunal is fully effectuated. The Rules of Procedure and Evidence contemplate that the role of the Judge or the Trial Chamber extends beyond simply hearing and deciding upon evidence adduced at trial. Rather, a Judge or the Trial Chamber, on its own motion, may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial. (Rule 54) The Rules also authorize the Judges of the Trial Chamber to order either party to produce additional evidence or it may itself summon witnesses or order their attendance. (Rule 98)
Articles 18 and 19, Statute of the International Criminal Tribunal for Rwanda (1994), UNSC Resolution 955, UN Doc. S/RES/955, 8 November 1994. [hereinafter ICTR Statute]
Rules 54 and 98, ICTR Rules.
23. It is therefore submitted that is within the authority of the Trial Chamber to inquire into the context of the indictments and to call upon the Prosecutor to re-examine the evidence. Moreover, Rule 50 gives the Trial Chamber power to grant leave to the Prosecutor to amend the indictment during trial. Thus, the orders sought by the Amici herein are within the powers of the Court.
A key consideration [in amending an indictment] would be whether or not, and to what extent, the dilatory filing of the motion impacts on the rights of the accused to a fair trial. In order that justice may take its proper course, due consideration must also be given to the Prosecutor?s unfettered responsibility to prosecute the accused to the full extent of the law and to present all relevant evidence before the Trial Chamber.
Prosecutor v. Kajelijeli, ICTR-98-44A-T, Decision on the Prosecutor?s Motion for Leave to amend the indictment, January 25, 2001, para. 35.
See also Prosecutor v. Jelisic et al, IT-95-10, 12 May 1998, Decision on the Prosecutor's Motion for Leave to amend the Indictment.
Prosecutor v. Kunarac et al., IT-96-23/2, ?Order granting Leave to file an amended Indictment and Confirming the amended Indictment.? 19 August 1998.
25. The Trial Chamber is obliged to ensure that a trial is fair, taking into consideration both the rights of the accused and the interests of victims and witnesses. Article 19(1) of the ICTR Statute states:
The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused with due regard for the protection of victims and witnesses.
Article 19(1), ICTR Statute.
See also Article 64(2), Rome Statute for the International Criminal Court, UN Doc. A/CONF.183/9, July 17, 1998, [hereinafter ?Rome Statute?].
26. It is therefore submitted that the Trial Chamber must balance, on the one hand, the harm caused to victims and to society by not prosecuting individuals for particular crimes, and on the other hand, the rights of the accused.
27. A variety of factors must be considered when undertaking this balance. When assessing the harm to victims and to society by not prosecuting individuals for particular crimes, it is submitted that the Trial Chamber should consider the following:
When assessing the harm to the accused in allowing an amendment, the Trial Chamber should consider the following:
28. In other words, it is respectfully submitted that an order to amend an indictment is in the interest of justice when, by virtue of spontaneous testimony during the course of a trial, 1) it becomes apparent that the indictment does not accurately reflect the totality of the criminal conduct of the Defendants; 2) the indictment fails to include charges of egregious crimes; 3) the failure to prosecute such crimes would result in serious harm to the victims of the crime and would violate the principles of non-discrimination in the administration of justice; and 4) any prejudice caused to the Defendants is not material and can be remedied by various measures.
29. In the case of The Prosecutor v. Akayesu, the Trial Chamber allowed the indictment to be amended in similar circumstances to the present case, that is, because of spontaneous testimony of sexual violence during the course of the trial. The Trial Chamber explained:
?On 17 June 1997, the Indictment was amended to include allegations of sexual violence and additional charges against the Accused under Article 3(g),Article 3(i) and Article 4(2)(e) of the ICTR Statute. In introducing this amendment, the Prosecution stated that the testimony of Witness H motivated them to renew their investigation of sexual violence in connection with events which took place in Taba at the bureau communal. The Prosecution stated that evidence previously available was not sufficient to link the Accused to acts of sexual violence and acknowledged that factors to explain this lack of evidence might include the shame that accompanies acts of sexual violence as well as insensitivity in the investigation of sexual violence. The Chamber understands that the amendment of the Indictment resulted from the spontaneous testimony of sexual violence by Witness J and Witness H during the course of this trial and the subsequent investigation of the Prosecution, rather than from public pressure. Nevertheless, the Chamber takes note of the interest shown in this issue by non-governmental organizations, which it considers as indicative of public concern over the historical exclusion of rape and other forms of sexual violence from the investigation and prosecution of war crimes. The investigation and presentation of evidence relating to sexual violence is in the interest of justice.?[emphasis added]
Prosecutor v. Akayesu, Judgment, para. 417.
30. A primary factor to take into consideration in a decision to amend the indictment is the importance of ending impunity for crimes of sexual violence and to ensure that women are not discriminated against by the justice system.
31. The ICTR, as an international judicial mechanism, is obliged to respect fundamental principles of human rights. Acting under Chapter VII of the UN Charter, the Security Council set up the ICTR to prosecute persons responsible for genocide and the other violations of international humanitarian law in the belief that this would contribute to ensuring that such violations are halted and effectively redressed. In so doing, the Security Council has endowed the ICTR with the representative character of the international community.
Article 24, Charter of the United Nations, 26 June 1945, as amended 1965, 1968, 1973, 59 Stat. 1031, 3 Bevans 1153, [hereinafter UN Charter] ? 189 state members of the United Nations as of 8 September 2000;
Preamble, UNSC Resolution 955, 8 November 1994, UN Doc. S/RES/955 (1994).
32. The Statute confers upon the Prosecutor the duty to investigate, indict and prosecute individuals who have committed the crimes within the jurisdiction of the Court. As will be demonstrated in this section, this power must be exercised in a non-discriminatory manner.
33. The rights of women to be treated without discrimination is well established under international law.Articles 15(1) and 17(4), ICTR Statute.
Rule 47(A), ICTR Rules.
Article 2, Universal Declaration of Human Rights, ?, UNGA Res. 217 A (III), UN Doc. A/810, [hereinafter UDHR];
Articles 2 and 15, Convention on the Elimination of All Forms of Discrimination against Women [hereinafter CEDAW] ? ratified by 166 states as of 21 Feb 2001;
Articles 2, 3, 14, and 26, International Convention on Civil and Political Rights [hereinafter ICCPR] ? ratified by 147 states as of 21 Feb 2001;
Articles 3(1) and 27, Convention Relative to the Protection of Civilian Persons in Time of War, (195) 75 UNTS 135, [hereinafter Fourth Geneva Convention] ? ratified by 189 countries as of 8 September 2000;
Article 75, Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, (1978) 1125 UNTS 3, [hereinafter Protocol I] ? ratified by 157 states as of 8 September 2000;
Article 4(1), Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, (1978) 1125 UNTS 609, [hereinafter Protocol II] ? ratified by 150 states as of 8 September 2000;
Chapter 1(3), UN Charter.
Article 2, African Charter on Human and Peoples' Rights, OAU Doc. CAB/LEG/67/3 Rev. 5, [hereinafter African Charter] ? ratified by 53 countries (all OAU members) as of 31 March 1999.
34. Women are entitled without discrimination to the equal protection of and equal access to the law. Equal access to the law means that women can obtain redress for the crimes committed against them to the same extent as others.
Article 7, UDHR.
Article 26, ICCPR.
Article 15(1), CEDAW.
Article 5(a), Convention on the Elimination of Racial Discrimination ? ratified by 157 states as of 21 Feb 2001.
Article 3, African Charter.
35. These principles of non-discrimination must be applied in international criminal trial proceedings and must be an integral part of UN activities. For example, the Rome Statute for an International Criminal Court contains an explicit guarantee of non-discrimination in the application of the law by the future Court. Article 21(3) states that the application and interpretation of law by the Court must be consistent with internationally recognized human rights, ?and be without any adverse distinction founded on grounds such as gender?, among other grounds. The Amici note that the Rome Statute may be referred to as reflecting customary rules of international law. As stated by the ICTY Trial Chamber in the Prosecutor v. Furundzija:
In many areas the Statute may be regarded as indicative of the legal views, i.e. opinio juris of a great number of States?resort may be had cum grano salis to these provisions to help elucidate customary international law. Depending on the matter at issue, the Rome Statute may be taken to restate, reflect or clarify customary rules or crystallise them, whereas in some areas it creates new law or modifies existing law. At any event, the Rome Statute by and large may be taken as constituting an authoritative expression of the legal views of a great number of States.
Article 21(3), Rome Statute.
?Beijing Declaration and Platform for Action?, UN Doc. A/CONF.177/20, (Sept. 15, 1995), Strategic Objective D.1, para. 124(h)
?Vienna Declaration and Programme of Action?, UN Doc. A/CONF.157/23 (July 12, l993), paras. 18 and 38.
Prosecutor v. Anto Furundzija, (IT-95-17/1-T), Judgement, 10 Dec. 1998, para. 227.
36. Having regard to the above principles of non-discrimination, it is respectfully submitted that as an international institution and as a judicial mechanism established by the United Nations Security Council, the Tribunal is mandated to carry out its functions without adverse distinction based on gender.
37. Gender violence is a grave and pervasive violation of human rights. Several international instruments have recognized that gender issues must be fully integrated into all aspects of the functioning of the human rights system. Punishment of and accountability for violence against women have become, in recent years, a priority within the UN human rights system.
Vienna Declaration and Programme of Action, General Assembly, World Conference on Human Rights, UN. Doc. A/Conf. 157/23 (12 July l993) paras. 18 and 38.
Declaration on the Elimination of Violence Against Women, General Assembly, 48th Sess, U.N. Doc. A/Res/48/104 (23 February l994)
Recommendation No. 19 of the Committee to End Discrimination Against Women: Violence Against Women, in Compilation of General Comments and Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.2 (29 March l996).
38. The non-prosecution of sexual violence is discriminatory. It is a denial of women?s right to equal protection of the law and to equal access to justice if crimes which occur mostly to women are not treated with the same seriousness as crimes which occur to both men and women.
39. The omission by the Prosecutor to investigate and indict Emmanuel Bagambiki, Samuel Imanishimwe and André Ntagerura on charges of rape and other sexual violence in the face of testimony of rape and other sexual violence at trial indicates that the Tribunal does not consider it important to prosecute rape and other sexual violence. It denies justice to the women who form the majority of the victims of these crimes and is thereby discriminatory to women.
40. The consequences of not including sexual violence charges in the present case are immense. There is an urgent need to prosecute crimes of sexual violence crimes in order to deter such crimes and to make clear to society that rape and other sexual violence are egregious and unacceptable conduct. In light of the historic trivialization of crimes committed against women and the prevalent violence against women in all societies, the deterrent function of criminal prosecutions for sexual violence crimes is even more essential. The Tribunal as a whole must therefore be diligent in punishing individuals who have committed these crimes. This ?historical exclusion of rape and other sexual violence from the investigation and prosecution of war crimes? was noted and considered by the Trial Chamber in the Akayesu judgment in allowing an amendment in that case to add sexual violence charges. (see Paragraph 29 above)
Prosecutor v. Akayesu, Judgment, para. 417.
41. The need to take special measures to overcome the lack of investigations and prosecutions of sexual violence crimes is one of the guiding principles for the work of the Tribunal. This principle is found, for example, in Rule 96 of the ICTR Rules. In addition, in the case of the Prosecutor v. Tadic, the ICTY Trial Chamber recognized that in determining where the balance lies between the right of the accused to a fair trial and the protection of victims and witnesses, consideration has to be given to the special concerns of victims of sexual assault. By extending this principle, the interests of victims and witnesses, particularly victims of sexual violence, must be considered by the Tribunal when deciding whether an indictment should be amended.
Rule 96, ICTR Rules.
Prosecutor v. Dusko Tadic (IT-94-1-T), ?Decision on the Prosecutor?s Motion Requesting Protective Measures for Victims and Witnesses?, Aug. 10, 1995, para. 50.
Article 19(1), ICTR Statute
Article 68, Rome Statute.
42. The failure to include charges of rape in the indictment against the Defendants in the face of clear evidence that rapes occurred during the Cyangugu massacres sends a message to the victims that these crimes are not sufficiently grave to warrant the attention of the Tribunal. In so doing, the Tribunal fails to provide recognition of the suffering of the victims which is an essential component of their ability to recover from the trauma and to regain their self-esteem.
43. The traumatic effects of rape are particularly severe in Rwandan society because of the social and cultural context. Women victims of rape are less likely to find a husband, to return to their village, and to benefit from medical treatment and counselling. As the Special Rapporteur of the Commission on human rights, René Degni-Ségui noted in this Report on the situation of human rights in Rwanda submitted in 1996 to the Commission [hereinafter Report Degni-Ségui] :
?These traumas [psychological] are all the more serious because they were caused by acts or deeds which African tradition generally regards as prohibited, and which constitute a veritable taboo. (?) The major psychosis of the rape victims seems to be their social exclusion. They [the children born as a result of a rape] are called ?children of shame?, ?gifts of the enemy?, ?little Interahamwe?. (???) Many unmarried mothers have resorted either to abortion or to infanticide with or without the family?s complicity?.
Report on the situation of human rights in Rwanda, ?Question on violation of Human Rights and Fundamental Freedoms in any part of the World, with particular reference to colonial and other dependent countries and territories, Doc UN, E/CN.4/1996/68 par. 19-24.
44. Prosecuting such crimes can contribute to a recognition that the victims of sexual violence are victims, and should not be blamed or punished for the harm they have suffered. The failure to prosecute rape and other sexual violence in the face of clear evidence that these crimes occurred perpetuates the silence surrounding these crimes. Ignoring such crimes exacerbates the shame and isolation felt by the victims of these crimes. By denying them equal access to justice, victims will be less reluctant to come forward. This in turn will further perpetuate the impunity for these crimes.
45. It is respectfully submitted that a failure to include sexual violence charges would therefore result in severe consequences for the victims and for society and would amount to a grave injustice. It is the duty of the Trial Chamber to avoid such an injustice by calling upon the Prosecutor to add charges of rape and other sexual violence to the indictment.
Prosecutor v. Kunarac, IT-96-23, Judgment, February 22, 2001, para. 655 and 408.
47. The omission of sexual violence crimes is also significant by virtue of the fact that the crimes were committed as acts of genocide, torture and enslavement. Genocide is one of the most egregious crimes under international law. The prohibition against genocide has attained jus cogens status as recognized by international treaties, judicial decisions and scholarly opinion, as listed below. This means that no derogation is permissible and therefore it enjoys a greater status than other rules of international law. Thus, there is a heightened responsibility upon the Tribunal to prosecute individuals responsible for this crime, in whatever manner it is committed.
Convention on the Prevention and Punishment of the Crime of Genocide, adopted the 9 December 1948, 78 U.N.T.S. 277, 28 I.L.M. 763, entered into force 12 January 1951;
Draft Code of Crimes Against the Peace and Security of Mankind, 1996, International Law Commission, article 17.
ICJ, Barcelona Traction, Light and Power Company Ltd., I.C.J 1970 Report 3, 32, § 32-34;
ICJ, Advisory Opinion of the International Court of Justice on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J. Reports 1951, p.15; ICJ, Bosnia v. Yugoslavia., 1993 I.C.J Report. at 440;
ICJ, Nicaragua v. USA, 1986 ICJ Report § 215-220;
Prosecutor v. Furundzija, Judgment, para. 147;
For national courts and national texts: see: Attorney-General of the Government of Israel v. Adolf Eichmann (1961) 36 I.L.R. 266, § 12, 13 & 30; in England see: Affaire Pinochet § 59-60.
For authoritative doctrine see: Cherif Bassiouni, Crimes against Humanity in International Criminal Law, (1999), pp. 211-13; Cherif Bassiouni, ?International Crimes: Jus cogens and Obligatio erga omnes? (1996) 25 Law & Contemp. Problems, p. 68; Theodor Meron, ?International Criminalization of International Atrocities? (1995) 89 A.J.I.L. p.569; Kenneth C. Randall, ?Universal Jurisdiction under International Law? (1998) 66 Tex. L. Rev. 785, p. 835-837; Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: beyond the Nuremberg Legacy, Oxford, Clarendon Press, 1997, pp.142-143; H. Rolin, ?Vers un ordre public réellement international? Mélanges Basdevant 1960, 441; M. Virally, ?Réflexions sur le jus cogens? (1966) A.F.D.I. 5; E. Suy, ?The Concept of Jus Cogens in Public International Law?, Conférence de Lagonissi, Carnegie Dotation, 1967; Ch. de Visscher, ?Positivisme et Jus Cogens?, (1971) R.G.D.I.P. 5; Octavio Colmenares Vargas, El Delito de Genocido, Mexico, 1951; Final Report of the Commission of Experts established pursuant to Security Council Resolution 935 (1994), Dec 9, 1994, UN Doc. S/1994/1405 at 30.
48. Similarly, torture and enslavement are also jus cogens crimes under international law, as recognized in international treaties, judicial decisions and scholarly opinions listed below. Again, this means that there is a greater responsibility of the Tribunal to prosecute such crimes.
International Treaties prohibiting torture and enslavement:
Article 5, UDHR
Article 3, Fourth Geneva Convention
Article 75, Protocol I to the Geneva Conventions.
Article 4, Protocol II to the Geneva Convention.
Article 2, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46, 10 Dec. 1984 - ratified by 123 states as of 21 Feb. 2001.
Article 2, Inter-American Convention to Prevent and Punish Torture, 9 December, 1985.
Articles 7 and 8(1), ICCPR.
Article 5, African Charter.
Article 3, ICTY and ICTR Statutes
Art. 1(1), Slavery Convention, 25 September 1926, 46 Stat. 2183, 60 L.N.T.S. 253, 19 Martens Nouveau Recueil (ser.3) 303, entered into force 9 March 1927;
Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery. Adopted by a Conference of Plenipotentiaries convened by Economic and Social Council resolution 608(XXI) of 30 April 1956 and signed at Geneva, 7 September 1956, 18 U.S.T. 3201, 266 U.N.T.S. 3, referenced in 35 I.L.M. 520, entered into force 30 April 1957;
Articles 7(1)(c) and (f), Rome Statute.Judicial decisions recognizing jus cogens nature of the prohibition of torture and enslavement
Prosecutor v. Akayesu, Judgment, para. 593;
Prosecutor v. Furundzija, Judgment, paras.153-4;
Prosecutor v. Delalic, (IT-96-21-T), Judgment, 16 November 1998, para. 459;
Barcelona Traction, Light and Power Company Ltd., I.C.J 1970 Report 3, 32, para. 32-34;
Al-Adsani v.Government of Kuwait, Court of Appeal (1996) 107 I.L.R. 536 (England);
Siderman de Blake v.Republic of Argentina, 9th Circuit Court of Appeals (1992) 965F 2d 699 (U.S.);
R. v. Metropolitan Stipendiary Magistrate, ex parte Pinochet, House of Lords, 13 January 1999, opinion of Lord Browne-Wilkinson in the Pinochet Case
(htpp://www.humanrightsnow.org/articles/pinochet%20ratner%20to%20reed.htm).See also Restatement (Third) of Foreign Relations Law, Reporter?s note 3 (1986).
Scholarly opinionCherif Bassiouni, ?Sources and Theory of International Criminal law? in International Criminal Law, Vol I, Crimes, 2ed, 1999, Transnational Publishers, 1 at 81;
M. Cherif Bassiouni, "Enslavement as an International Crime", New York University Journal of International Law and Politics vol. 23 (1991) p. 458;
Steven Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: beyond the Nuremberg Legacy, Oxford, Clarendon Press, 1997, pp.110;
Theodor Meron, ?International Criminalization of International Atrocities? (1995) 89 A.J.I.L. p.558;
UN Special Rapporteur on torture; Rodley, Mr. [now Sir] Nigel Rodley, report to the Human Rights Commission (U.N. Doc. E/CN.4/1996/35/Add.2.
49. Rape is an act of torture and under certain circumstances, acts of rape or other sexual violence may be characterized as constituent acts of genocide and enslavement. Therefore, acts of rape and other sexual violence also constitute breaches of a jus cogens norm. Paragraphs 66 to 81 below will show how acts of rape and other sexual violence may constitute genocide, torture and enslavement where they meet the elements of those crimes. It will also show that the acts of rape and other sexual violence to which the Witnesses LBI and LAM testified meet such elements in the present case. Thus, there is a heightened responsibility to prosecute the Defendants for the rapes and other sexual violence, like the other acts of genocide, that were committed as part of the massacres for which they are being tried.
50. Another factor in determining whether an amendment is in the interest of justice is the potential prejudice to the Defendants and whether such prejudice can be remedied.
51. The multiple characterizations of rape and other sexual violence mentioned above is also significant for determining the level of prejudice to the Defendants. The Amici note that the Defendants have been charged with genocide under article 2 and with ?violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment? under Article 4(a) of the Statute.
Counts 1, 6, 7, and 12, of the Indictment against Defendants Bagambiki and Imanishimwe;
Counts 1, 2, and 5 in the Amended Indictment against the Defendant, Ntagerura.
52. As will be shown in Paragraphs 66 to 81 below, the acts of rape and sexual violence to which the Witnesses testified can be considered acts of genocide and of ?violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment?. Thus, the facts relating to rape and other sexual violence in the Cyangugu prefecture can be integrated within the existing counts against the Defendants. In other words, the proposed amendments would only be elaborating on the methods or actus reus in which the crimes were carried out, and would not change the nature of the offences charged against the Defendants.
53. The Amici note that in the present case, the Prosecutors have not closed their case and the Defendants have not started to present their defence. In such circumstances, any prejudice to the Defendants is not irreparable. If the Trial Chamber should determine that any prejudice may be caused to the accused by an amendment, this prejudice can be remedied by ordering various measures, such as granting the Defendants time to prepare their defence by postponing the trial and allowing the Defendants to re-examine Witnesses LAM, LBI and any other pertinent witnesses, if the Defendants should so request. Thus, no irreparable harm would be caused to the Defendants by adding charges of sexual violence.
54. Taking into consideration, on the one hand, the significant harm to the rights of victims of sexual violence by denying them equal access to justice; the harm caused to victims? ability to recover because of the lack of redress for the harm they suffered; the harm caused to society by perpetuating impunity for crimes against women; and on the other hand, any potential harm to the accused is reparable, it is respectfully submitted that an amendment of the indictment to include charges of sexual violence is both consistent with and demanded by principles of justice.
55. Having established above that the indictments should be amended, this section will next discuss the proper way to charge acts of rape and other sexual violence in the indictment against the Defendants. In particular, it will demonstrate that acts of rape can be charged as rape under articles 3 and 4 of the ICTR Statute. In addition, the acts of rape and other sexual violence can be integrated into the charges of genocide, torture, enslavement, and inhuman treatment under both articles 3 and 4.
56. In the ICTR Statute, rape and enslavement are explicitly listed as a crime against humanity (under Article 3) and a serious violation of Article 3 common to the Geneva Conventions (under article 4).
Articles 3(g) and 4(e), ICTR Statute.
57. Acts of sexual violence, like other acts, are properly charged both as crimes of rape as well as other crimes within the jurisdiction of the Tribunal, such as genocide, torture, enslavement and inhuman treatment, where the acts of sexual violence meet the elements of those crimes. It is respectfully submitted that the indictment in the present case should be amended in a way that charges the acts of sexual violence in the full spectrum of ways.
58. The instances of rape to which the Witnesses LAM and LBI testified can be charged as rape itself under article 3 (crimes against humanity).
59. Under the ICTR Statute, crimes against humanity contain four elements: (i) the act must be inhumane in nature and character, causing great suffering, or serious injury to body or to mental or physical health; (ii) the act must be committed as part of a wide spread or systematic attack; (iii) the act must be committed against members of the civilian population;(iv) the act must be committed on one or more discriminatory grounds, namely, national, political, ethnic, racial or religious grounds.
Article 3, ICTR Statute.
Prosecutor v. Akayesu , Judgment, para. 578.
Prosecutor v. Kunarac et al., Judgment, para. 410.
60. It is important to note that it is not necessary that a large number of rapes be proven for a prosecution for crimes against humanity. A single case of rape or sexual violence may be grounds for prosecution for crimes against humanity, so long as the single act is committed in the context of a widespread or systematic attack against a civilian population. Under element (iii) above, it is the attack, and not the acts, which must be widespread or systematic in order to constitute a crime against humanity. For example, in the Rome Statute for an International Criminal Court, ?Crimes against humanity? are defined in the chapeau of article 7 as follows:
"crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity?[emphasis added]Article 7(1), Rome Statute.
Final report submitted by Ms. Gay J. McDougall, Special Rapporteur, Contemporary Forms of Slavery, Systematic rape, sexual slavery and slavery-like practices during armed conflict, UN Commission on Human Rights, E/CN.4/Sub.2/1998/13, 22 June 1998, para. 43.
61. In the present case, Witnesses LAM and LBI testified to rapes and sexual violence being committed as part of the widespread and systematic killing of Tutsis in the Cyangugu prefecture pursuant to the orders of the Defendants. The rapes were committed against the victims because of their ethnicity. Moreover, it took place within the context of a widespread and systematic attack against the civilian population. Thus, the testimony indicates that the elements for the crimes against humanity of rape can be met and that there is a prima facie case against the Defendants for the crime against humanity of rape.
62. As mentioned above, acts of sexual violence can also be charged as genocide, torture, enslavement and other crimes within the jurisdiction of the Tribunal where the acts meet the elements of those crimes. This practice is consistent with the principle of gender mainstreaming as contained in many international instruments. The principle of gender mainstreaming requires that issues relating to women should be integrated into the main issues and areas of work of international institutions and should not be treated as marginal issues. This means that crimes committed against women should not be treated only as a female-specific crime. Rather, it should be included within the general work of the Tribunal by integrating it into the charges which are general to men and women.
Vienna Declaration and Programme of Action in the World Conference on Human Rights, UN Doc. A/CONF.157/23, 12 July 1993, paras. 18 and 38.
Article 8(2)(b)(xxii) and 8(2)(e)(vi), Rome Statute.
63. The integration of sexual violence in the prosecution of genocide, torture and enslavement has been the practice of the ICTR and ICTY. Under the jurisprudence of the Tribunals, acts of sexual violence have been charged and/or adjudged as constituting one or more of the other crimes within the jurisdiction of the Tribunal. For example, rape has been charged and recognized as torture by the ICTY Trial Chamber in the cases of Furundzija and Delalic. In the case of the Prosecutor v. Kunarac et al., rape and other sexual violence was charged and adjudged as torture and enslavement. Most importantly, the historic Akayesu decision of the ICTR adjudged crimes of rape and other sexual violence as acts of genocide. It also recognized forced nudity and sexual entertainment as inhumane acts under crimes against humanity at the same time as it recognized rape as a form of torture.
Prosecutor v. Akayesu, ICTR, ICTR-96-4-T, 2 September 1998, paras 505-509, 516, 594,597, and 688.
Prosecutor v. Furundzija, ICTY, IT-95-17/1-T 10, 10 December 1998, para. 171;
Prosecutor v. Delalic et al, Judgment, paras. 941 and 963;
Prosecutor v. Kunarac et al., Judgment, and ?Decision on Defence Preliminary Motion on the Form of the Amended Indictment?, 21 October 1998.
64. The language in the Rome Statute for an International Criminal Court further makes clear that acts of sexual violence may be constituent acts of different war crimes. The Rome Statute provides under article 8 that it is a crime to commit rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other crimes of sexual violence "also constituting a grave breach of the Geneva Conventions" in article 8(2)(b)(xxii) and ?also constituting a serious violation of article 3 common to the four Geneva Conventions? in article 8(2)(e)(vi). This language was included in order to signal that these crimes can also be charged as other listed crimes of that dimension.
Article 8(2)(b)(xxii) and 8(2)(e)(vi), Rome Statute.
65. Thus, it is respectfully submitted that the legal basis for charging acts of rape and other sexual violence as other crimes is established under international law.
66. The rapes committed during the course of the massacres against the Tutsi population in the Cyangugu prefecture can be included in the charges of genocide under article 2 of the ICTR Statute. As recognized in the Akayesu case, rape and other sexual violence constitute acts of genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a particular group, targeted as such. Moreover, the acts of rape and other sexual violence should be seen as constituting different forms of the actus reus of genocide.
Prosecutor v. Akayesu, Judgment, para. 731.
67. Article 2 paragraph 2 of the ICTR Statute lists the actus reus of Genocide as :
(a) Killing members of the group ;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part ;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article 2, ICTR Statute.
68. Rape and other sexual violence can constitute acts of genocide in a multitude of ways:
(a) Killing members of the group: Sexual violence is often used as a method of killing female members of the group.
(b) Causing serious bodily or mental harm to members of the group: Sexual violence inflicts serious bodily and mental harm to the female members of the group which impairs the survival of the group.
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part: Sexual violence is often committed to inflict psychological harm that can destroy a group as a whole by destroying the spirit and the will to live of the community.
(d) Imposing measures intended to prevent births within the group: Sexual violence often harms the reproductive capacity of the women. The Akayesu case recognized that the constituent act of preventing births within the group includes measures such as forced sterilization, abortion, or birth control. The act of forced pregnancy is another method of accomplishing genocide where, in patriarchal societies, the ethnic identity of a child is determined by the father?s ethnicity. Rape may also cause infertility or make sexual intercourse impossible, as well as render a woman psychologically or culturally unable to reproduce.
Akayesu decision, paras. 507 and 731-2.
69. As discussed in Paragraph 5(i) in Part II above, the acts of rape and other sexual violence to which Witnesses LAM and LBI testified indicate that they were committed as part of the genocidal acts. Witness LBI testified that after managing to survive the attack against the Tutsi population, she was raped when she ventured from her hiding place to seek help, food and shelter. Witness LAM testified that on the day following the April 15 massacre, soldiers were taking women away to rape them. It is also necessary to keep in mind the hate propaganda against Tutsi women which incited Hutu men to rape and kill Tutsi women. In this context, orders to kill Tutsis would inevitably encompass sexual violence. Thus, the charges against the Defendants should include all the acts that were committed as part of the massacres against Tutsi civilians.
70. Acts of sexual violence are also properly charged as acts of torture under article 3 (crimes against humanity) and as ?Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment? under article 4(a) of the ICTR Statute.
71. The most important element in the crime of torture is the infliction of severe physical or mental suffering.[3]
Prosecutor v. Kunarac et al., Judgment, para. 496.
72. Rape and other forms of sexual violence cause severe mental and physical suffering. It is a violent crime that inflicts both great physical and psychological harm. Moreover, women who are sexually assaulted often suffer other long-term consequences, such as forced pregnancy, infertility, AIDS and other forms of sexually transmitted disease, which have devastating long term emotional and physical consequences. These factors increase the physical and mental harm to the victims of sexual violence.
73. As mentioned above, rape has been recognized as torture in the jurisprudence of the ICTR and the ICTY.[4] The ICTY Trial Chamber recognized that:
?rape causes severe pain and suffering, both physical and psychological. The psychological suffering of persons upon whom rape is inflicted may be exacerbate by social and cultural conditions and can be particularly acute and lasting?
Prosecutor v. Delalic et al (the Celibici Case), IT-96-21-T, Nov. 16, 1998, paras. 495-496.
See also Prosecutor v. Furundzija, Judgment, para. 171.
Prosecutor v. Kunarac, Judgment, para. 655.
Prosecutor v. Akayesu, Judgment, para.597.
74. subparagraph (a) as ?Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment?.
"I begged them to kill me ... he said he would take me to relatives ... but when I arrived I was raped for several days."
Witness LBI, testimony on October 25, 2000
(source: http.:\\www.internews.org/activities/ICTR_reports/)"No. I was worse than a servant. Come close, I will show you a sign on my body to prove I was a slave."
Witness LBI, testimony on October 26, 2000, http://www.internews.org/activities/ICTR_reports/ICTRnewsOct00.htm.
?Each young man could take a woman and leave with her.?
Witness LAM, testimony on November 2, 2000, http://www.hirondelle.com.
75. The testimonies of the Witnesses LAM and LBI also indicate that a case can be made against the Defendants for enslavement. Enslavement is specifically listed as a crimes against humanity under Article 3 (c) of the ICTR Statute.
Article 3(c), ICTR Statute
76. Slavery is an international crime which is defined as ?the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised?.
Art. 1(1), Slavery Convention, 25 September 1926, 46 Stat. 2183, 60 L.N.T.S. 253, 19 Martens Nouveau Recueil (ser.3) 303, entered into force 9 March 1927;
Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery. Adopted by a Conference of Plenipotentiaries convened by Economic and Social Council resolution 608(XXI) of 30 April 1956 and signed at Geneva, 7 September 1956, 18 U.S.T. 3201, 266 U.N.T.S. 3, referenced in 35 I.L.M. 520, entered into force 30 April 1957
ICC Elements of Crime, article 7(1)(c).
Prosecutor v. Kunarac, Judgment, para. 539.
77. Sexual slavery involves the exercise of any or all of the powersof ownership over a person by depriving the person of control over her sexual activity - one of the most fundamental components of human dignity. To compel a person to provide sex is a form of chattel slavery, reducing the person to the property of another. ?Sexual? slavery is a form ? albeit a particularly egregious one ? of slavery. As explained by the Special Rapporteur on Slavery:
?The term "sexual" is used?as an adjective [to slavery] to describe a form of slavery, not to denote a separate crime. In all respects and in all circumstances, sexual slavery is slavery and its prohibition is a jus cogens norm.?
Contemporary forms of Slavery, Systematic rape, sexual slavery and slavery-like practices during armed conflict Final report submitted by Ms. Gay J. McDougall, Special Rapporteur to the Commission of Human Rights-Sub-Commission on Prevention of Discrimination and Protection of Minorities Fiftieth session- Item 6 of the provisional agenda E/CN.4/Sub.2/1998/13 [hereinafter McDougall report] paras. 28 and 30.
Thus, acts of sexual slavery are properly charged as the crime of enslavement under article 3 of the ICTR Statute.
78. For example, in the case of The Prosecutor v. Kunarac et al. ? the first case of an international tribunal to deal with sexual slavery - two of the Defendants were charged and found guilty for enslavement under article 3 of the ICTY Statute. The facts in that case were that the Defendants took girls and kept them in houses and apartments against their will, repeatedly raped and abused them, allowed other soldiers to rape them, and sold some of the girls to other soldiers. The Trial Chamber stated:
indications of enslavement include elements of control and ownership; the restriction or control of an individual?s autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator. The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence, deception or false promises; the abuse of power, the victim?s position of vulnerability; detention or captivity; psychological oppression or socio-economic conditions. Further indications of enslavement include exploitation; the exaction of forced or compulsory labour or service, often without remuneration and often, though not necessarily, involving physical hardship; sex; prostitution; and human trafficking?
Prosecutor v. Kunarac et al., Judgment, paras. 543 and 728.
See also Prosecutor v. Kunarac et al., ?Decision on Defence Preliminary Motion on the Form of the Amended Indictment?, 21 October 1998, which confirmed the Prosecutor?s ability to charge rape as enslavement.
79. The Amici note that the facts in the present case are comparable to the facts in the case of The Prosecutor v. Kunarac. According to the testimony of Witnesses LBI and LAM, women were taken, held against their will and raped.
80. It is important to note that, as recognized by the ICTY Trial Chamber in The Prosecutor v. Kunarac, enslavement or sexual slavery does not require imprisonment or complete deprivation of liberty. A person can have some freedom of movement and yet be unable to exercise it because of danger or fear. As the Special Rapporteur on Slavery explains:
?The mere ability to extricate oneself at substantial risk of personal harm from a condition of slavery should not be interpreted as nullifying a claim of slavery?This is particularly true when the victim is in a combat zone during an armed conflict, whether internal or international in character, and has been identified as a member of the opposing group or faction.?
McDougall report para. 29 -30.
Prosecutor v. Kunarac, Judgment, para. 750.
Milch case, U. S. Military Tribunal, excerpted in Kirk McDonald, Gabrielle, and Swaak-Goldman, Olivia, Eds., Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts. The Hague: Kluwer Law International, 2000, p. 1793.
81. Similarly, in the testimony of Witness LBI on October 25 and 26, 2000 and the testimony of Witness LAM on November 2, 2000, the witnesses testified that women were taken away, ?raped for several days?, and kept as ?worse than a servant? and as ?a slave?. Moreover, Witness LBI testified that she did not leave because of fear that she would be killed if she went outside. Thus, it is respectfully submitted that a prima facie case exists against the Defendants for the crime against humanity of enslavement. The acts to which the witnesses testified occurred in the course of the widespread and systematic massacres of Tutsis in the Cyangugu prefecture for which the Defendants are being tried. Since the prohibition of enslavement is a jus cogens norm, it is submitted that there is a heightened responsibility to prosecute these acts by the Tribunal. Therefore, the indictment should be amended to include charges of these acts.
82. The Prosecutor has alleged in the indictment that André Ntagerura, Emmanuel Bagambiki and Samuel Imanishimwe are criminally liable under the international law on command responsibility for the massacres in the Cyangugu prefecture in April-July, 1994. The Amici submit that the evidence and testimony presented at trial to date suggests that rape, sexual slavery, and other sexual violence was committed as part of these massacres. In the face of this testimony, the non-prosecution of these crimes would amount to discrimination against women. An amendment of the indictment, which is permissible under the ICTR Rules, is in the interest of justice. The serious consequences of not prosecuting the sexual violence that was committed as part of the Rwandan genocide outweigh any prejudice caused to the Defendants, for which remedial measures are available.
83. For the above reasons, the Amici respectfully request the Tribunal to:
· call upon the Prosecutor to re-examine the evidence regarding the acts of rape and other sexual violence in the present case;
· grant leave to the Prosecutor to amend, where appropriate, the indictments to include sexual violence charges under article 2 (genocide); under article 3 (crimes against humanity); and under article 4 (grave breaches of Geneva Convention).
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Date March 1st, 2001
Signed
Ariane Brunet
Convenor, Coalition for Women?s Rights in Armed Conflict Situations
On behalf of:
[1]. Newspapers and radios made accusations that Tutsi women were marrying Hutu intelligentsia to spy on powerful Hutus, and were part of a conspiracy to commit genocide against the Hutu population. These allegations included claims that Tutsis would rape Hutu women. Newspapers published cartoons depicting the rape of Hutu women as part of an imagined genocide of the Hutus by the Tutsis. Kangura also published an article, claiming that ?all [the Tutsi] attacks are aimed at restoring the monarchy and feudal system [and] raping young girls and women.? See Zirkana no 6, March 1993, cover (depicting, inter alia, an RPF member asking a Hutu naked woman tied to a stake: ?Madam, what is your problem? You refuse to give yourself to us? Here, you have to share, don?t you??), reproduced in ibid, at 189; Kamarampaka 7, April 1993 no 15, p14 (depicting the gang-rape of a Hutu woman by the RPF.); and Kangura no 40, March 1993, as cited in Chrétien at 153.
[2]. Rule 73 governs the procedure on motions in general. See Table of Authorities.
[3]. While not an issue in the present case, the Amici would like to point out that, unlike the Convention against Torture, torture that is prosecuted as a grave breach of the Geneva Conventions or as a crime against humanity does not require that the acts be ordered, instigated, permitted or tolerated by a public official. This was recognized by the Trial Chamber in the Prosecutor v. Kunarac et al., para. 496. This is also reflected in the Rome Statute which defines the crime against humanity of torture as follows: ??Torture? means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.? No mention is made that the torture must be committed with the involvement of a public official. With regard to torture as a war crime, humanitarian law requires that every person associated with a belligerent in war?whether a state or non-state actor?is bound to respect the guarantees of humanitarian law. Thus, an individual can violate the fundamental guarantees irrespective of whether his/her action is ordered, instigated, permitted or tolerated by the state or non-state actor to whom they are accountable. This applies to all war crimes, including the crime of torture. The US Court of Appeals in Kadic v. Karadzic correctly recognized that in regard to war crimes, there is no requirement of official involvement, approval or acquiescence. Moreover, the Amici would like to point out that according to the ICC Elements of Crimes, the crime against humanity of torture does not require any purpose. The ICC Elements of Crimes, which was drafted with a view to customary international law, also specify that, for the crime against humanity of torture, ?It is understood that no specific purpose need be proved for this crime.? Although these elements are not required, the Amici note nonetheless that they would be met in the present case. Article 7(2), Rome statute, Article 7 (1) (f), ICC Elements of Crimes, Footnote 14, Article 7(1)(f), ICC Elements of Crimes.
[4]. For other authority for recognizing rape as torture under international law, See the 1986 report of the Special Rapporteur on Torture to the UN Commission on Human Rights which defined rape as torture. Also, in a 1986 case, the International Court of Justice found that ?methods of torture reported by Nicaraguan women included . . . rape.? The European Court of Human Rights recognized the severity of rape as torture, stating that ?rape leaves deep psychological scars on the victim which do not respond to the passage of time as quickly as other forms of physical and mental violence.? Aydin v. Turkey, European Court of Human Rights, 1997, 25 E.H.R.R. 251, par.83; Nicaragua v. United States (Merits, ICJ 1986), 25 ILM 1337 (1986), cited in International Humanitarian Law, supra note 25 at 81; Torture and Other Cruel, Inhuman or Degrading Punishment: Report by the Special Rapporteur, UN ESCOR Hum. Rts. Comm. 1986, UN Doc. E/CN.4/1986/15 at para. 119.
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