Coalition for Women's Human Rights in Conflict Situations

Analysis of Trends in Sexual Violence Prosecutions in Indictments by the International Criminal Tribunal for Rwanda (ICTR)
From November 1995 to November 2002

A Study of the McGill Doctoral Affiliates Working Group on International Justice, Rwanda Section ()
On behalf of the NGO Coalition for Women's Human Rights in Conflict Situations

Gaëlle Breton-Le Goff
Montreal, November 28, 2002

Introduction

The Statute of the International Criminal Tribunal for Rwanda (ICTR) authorizes the prosecution on different charges of crimes of sexual violence committed by persons in Rwandan territory or by Rwandan citizens in the territory of neighbouring States between January 1, 1994 and December 31, 1994.[1]

Traditionally, crimes of sexual violence are prosecuted before the ICTR as crimes against humanity under the characterization of rape[2] and as serious violations of Article 3 common to the Geneva Conventions and to Additional Protocol II under the characterization of "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault."[3] However, some attempts have been made to prosecute sexual violence under less traditional indictments such as "other inhumane acts" (art. 3 § i of the Statute)[4] or "torture" (art. 3 § f of the Statute),[5] which include crimes against humanity, "cruel treatment such as torture [and] mutilation," and acts constituting a serious violation of Article 3 common to the Geneva Conventions and the Additional Protocol II (art. 4 § a of the Statute).

More restrictively, though upheld by the Appeal Chamber, sexual violence has also been retained under the characterization of genocide as a measure intended to prevent births within the group, notably in the Akayesu precedent.[6] Since then, certain charges have taken up this characterization to prosecute sexual violence as an act of genocide, while extending it to the charges of conspiracy to commit genocide and complicity in genocide.[7]

The acts of sexual violence committed during the period of the genocide were many and varied. They cover individual or group acts of rape within the broadened definition of the Akayesu jurisprudence,[8] destruction or mutilation of the sexual, genital and reproductive organs, forced prostitution, deliberate or unintentional transmission of sexually transmitted diseases such as AIDS, various forms of indecent assault (forced nudity, public sexual relations) with the avowed purpose of physically, morally and socially destroying the Tutsi ethnic group by humiliating, punishing and eliminating Tutsi women for their supposed arrogance and superiority. The anti-Tutsi campaign sought both to exacerbate hatred against women and arouse sexual desire in men.[9] Today, these acts of sexual violence have catastrophic consequences for Rwandan women in terms of health, social reintegration, poverty, inability to start a family and physical and psychological (post-traumatic) after-effects.

Consequently, given the extent of the violence committed against women during the Rwandan genocide as a tool of destruction of a component of society, given the scope of the consequences of these crimes against women[10] and Rwandan society and considering the importance for the victims of prosecuting these crimes, the international community and the development of international criminal law, it is appropriate after seven years of operation to review the incrimination of the sexual violence prosecutions before the ICTR.[11]

This study will consist of three parts: the first will discuss the issue of the prosecution of sexual violence and indictment trends from a quantitative and historical standpoint, while the second will raise the issue from a qualitative point of view. It will examine how sexual violence is incriminated and with what growth and success. Finally, the third part will compare the ICTR's work in this field with that of the ICTY with the aim of eventually obtaining lessons for improvement.

I ? Quantitative data regarding the trends in prosecution of sexual violence before the ICTR

A - Role of sexual violence in the indictments issued by the ICTR

It may come as a surprise, probably due to the fact that it has received too little media coverage and because people tend to focus on the negative, that the number of indictments containing counts of sexual violence represents MORE THAN HALF of the indictments issued by the ICTR Office of the Prosecutor.[12] In fact, between 1995 and 2002 (as at October 30, 2002), the Office charged 63 individuals. Of these 63 accused, 34 are charged with having personally committed, encouraged or allowed the perpetration of acts of sexual violence. The following diagram illustrates that a commitment therefore exists within the ICTR to prosecute crimes of a sexual nature.

Figure 1

However, it is appropriate to observe the trends of this overall concern. On the one hand, the number of cases involving indictments of sexual violence was relatively constant between 1996 and 2001, which reflects a levelling-off to some extent, as the number of cases containing these indictments is essentially the same, regardless of the number of prosecutions instituted during the year. On the other hand, 1998, 1999 and 2000 gave rise to indictments that all included indictments of sexual violence. However, since 2001, a reduction has been observed in this type of incrimination in the indictments issued by the Office of the Prosecutor. The proportion of indictments pertaining to sexual violence fell from 100% to 1999-2000 to 35% in 2001-2002, as shown in the following graph:

Figure 2

Of course, there should be no de facto or a priori deduction of a lack of interest in prosecuting crimes of sexual violence, because the indictments are drafted on the basis of the physical evidence and witness statements appearing in the case file. However, from a purely statistical point of view, the red line represents cases of prosecutions for sexual violence regardless of the amendment dates, meaning that they have been calculated in relation to the date of issue of the indictment and not according to the amendment date (which explains the presence of sexual violence in the 1995 cases when real interest in this issue only emerged in 1997). These subtleties should therefore lead to more developments and an in-depth review.

B - Trends in sexual violence indictments before the ICTR

To better understand the above data regarding the levelling-off phenomenon described in the previous paragraph for the years 1998 to 2000, it is appropriate to study the following graph:

Figure 3

 

Several trends are noteworthy:

1)Until 1997, few initial indictments incriminate acts of sexual violence. The two exceptions are the cases of NIYITEGEKA (1996) and NTAHOBALI Arsène Shalom (May 26, 1997). Although not unknown to the investigators and Prosecutors, crimes of sexual violence were not a policy priority for the Prosecutor.

2) Between 1995 and 1997, the majority of indictments of sexual violence were incorporated by amendment. In fact, these amendments involve the first cases that led to an indictment at the ICTR at the beginning of its activities: AKAYESU (1996), BAGILISHEMA (1995), BAGOSORA (1996), NSENGIYUMVA (1996) and MUSEMA (1996). These amendments attest to the intention of the Office of the Prosecutor to emphasize crimes of sexual violence, and thus to the prosecution's new policy orientation.

3) An average two-year lag exists between the initial indictment containing no charges of sexual violence and the amendment that incorporates them. The only notable exception is the BAGILISHEMA case. His indictment was issued in 1995 and amended to include counts of sexual violence in 1999. These delays are attributable to the time necessary for additional investigation, redrafting of the indictment and procedural delays related to the amendment procedure.

4) As of 1998, accusations of sexual violence were incorporated into the initial indictments. Amendments exist that expand or complete the charges of sexual violence, but these amendments do not incorporate them for the first time. For example, in the NIYITEGEKA case, his initial 1996 indictment charged him with rape and incitement to sexual violence as a crime against humanity. The 2000 amendment expanded the characterizations to crimes against humanity for other inhumane acts and serious violations of the Geneva Conventions. The only notable exception in this period was the amendment of the NDINDABAHIZI Emmanuel indictment in June 2001 to include the count of incitement to rape (crime against humanity). This shows a growing proficiency in the prosecution teams to control the investigation and prosecution of crimes of sexual violence.

5) The decrease in incriminations for sexual violence in the initial indictments starting in 2001 is very clear and may attest to a declining interest in this issue.

Overall, since 1995 and especially since 1998, acts of violence were incorporated into the indictments in most cases. Therefore, as of October 30, 2002, the majority of the initial indictments include sexual violence, as confirmed by Figure 4 below. This observation is good news to the extent that, in general, indictments for sexual violence are not withdrawn from the initial indictments by amendment.[13] Consequently, 30 individuals are currently being prosecuted or judged for crimes of sexual violence.

Figure 4

Even though we are not at the centre of the judicial machinery, it is nonetheless possible to venture some explanations for these different phenomena.

II ? Attempts at explanation

Even though these explanations are based on an external appreciation of the phenomena and contextual situations within the ICTR gained from the official and journalistic sources of documentation available, we nonetheless can note some explanations that could shed light on the changes regarding A) the increase in prosecutions, B) the levelling off of the number of prosecutions for sexual violence, and C) the decline in the number of prosecutions since 2001.

A - The increase in sexual violence prosecutions

There are several types of explanations for the phenomenon shown in Figures 1, 3 and 4: they are legal, structural or political.

1) The Akayesu effect and the reinforcement of control of legal tools

The first explanation certainly rests with the impact of the sexual violence amendment in the Akayesu case, filed by the Prosecutor on June 17, 1997 at the invitation of Judge Navanethem Pillay following the witnesses' revelations[14] and the filing of an amicus curiae brief drafted by the NGO Coalition for Women's Human Rights in Conflict Situations.[15] The media effect of this amendment in the NGO community and in national public opinion attracted the international community's attention to this aspect of the Rwandan genocide, which although not unknown to the court, had not really been explored and exerted strong pressure on the Office of the Prosecutor and the investigators.[16]

One year later, in the Akayesu judgment, the Trial Chamber judges gave the Prosecutors the legal tools allowing them both to define the constituent elements of the crimes and to characterize the different acts of sexual violence according to different categories of crimes (genocide, crime against humanity and serious violation of Article 3 common to the Geneva Conventions and Additional Protocol II).

Following the amendment in the Akayesu case, several cases, particularly those that were part of the first indictments issued by the ICTR, were amended to include acts of sexual violence up to 1999.

Beginning in 1998, we observe that sexual violence is incorporated into the initial indictments and no longer by amendment for all prosecutions instituted after 1998, demonstrating an increased sensitization on this issue, a more effective search for evidence and better familiarity with the related legal tools.

2) Prosecutor's strategy and institutional strengthening

The second explanation involves the arrival of a new Canadian Prosecutor in October 1996, Louise Arbour, and the reorientation of the prosecution's strategy beginning in 1997. Following the guilty plea of Jean Kambanda, which proved the implementation of an organized plan of genocide, Arbour sought to emphasize certain crimes such as conspiracy to commit genocide and crimes of sexual violence at the highest government level. The Prosecutor's strategic reorientation translated into the holding of a workshop on sexual violence, organized at Louise Arbour's request from March 23 to 26, 1997, and subsequently by the creation within the Office of the Prosecutor of an investigation team assigned specifically to crimes of sexual violence.[17] During the year 1998-1999, investigations on the issues of conspiracy to commit genocide and sexual violence remained the priority.[18]

The work of the Office of the Prosecutor on sexual violence produced a December 1998 study that showed "large-scale sexual crimes had been committed against Tutsi women. During the survey conducted in seven prefectures of Rwanda, the team on sexual assaults interviewed 360 women on complaints of rape. Based on information gathered, the Prosecutor believes that sexual crimes were planned in a systematic and generalized manner and committed with the active participation of soldiers, the Interahamwe, and government and administrative authorities at both local and national levels."[19] On September 23, 1998, Louise Arbour affirmed in the Third Annual Report of the ICTR that the investigation team had taken 85 witness statements regarding acts of sexual violence, and the suspects came from all the socio-professional groups of Rwanda: the army, the Government, the clergy and the media.[20] In fact, the prosecution teams and particularly the investigators attended a February 1999 seminar on the updating of the prosecution's investigation policy strategy, which a priori involved the issue of sexual violence.[21] Consequently, the prosecution files included an increasing number of witness statements addressing sexual violence.[22]

As a result of this new strategy and the work of the special Investigations Unit on sexual violence, several indictments were amended to include crimes of sexual violence: NSENGIYUMVA, BAGOSORA, KABILIGI, NTABAKUZE, MUSEMA, BAGILISHEMA and NYIRAMASUHUKO Pauline.

Moreover, starting in 1998, acts of sexual violence were included in the initial indictments, and the first grouped indictments including acts of sexual violence appeared particularly in the cases of the group of MRND politicians and the group of Ministers. As already mentioned, this phenomenon can be linked with sensitization of ICTR staff regarding issues of gender and sexual crimes and the treatment of witnesses called to the ICTR stand.

3) Sensitization to sexual violence and the issue of treatment of female victim witnesses

The prosecution's case is based on testimony and the strength of this testimony. This assertion of the President of the ICTR, South African judge Navanethem Pillay, confirmed the crucial importance of testimony in general and the presence of the witness on the stand.[23] Conscious of this importance, the Office of the Prosecutor tried to develop close relations with women's NGOs in Rwanda and increase the sensitivity of ICTR staff to gender issues.

To this end, a seminar on "sexual assault" was held in Arusha in October 1997, thus allowing the participating Rwandan NGOs, international experts, the representative of the Rwandan judiciary and the OTP to exchange their points of view. The gender issue seems to have increased in scope in 1997. A Group on Gender Issues was established at the Registry in July 1997, and a gender adviser was appointed (Françoise Ngendahayo). The Group on Gender Issues was "intended to provide advisory services related to gender issues within the Tribunal, as well as to victims and witnesses."[24] The Unit's avowed objective was to feminize the recruiting of ICTR staff[25] and develop close ties with the women's NGOs in Rwanda. According to the partner Rwandan NGOs of the NGO Coalition for Women's Human Rights in Conflict Situations, this was achieved.

Effective March 1997, the Victims and Witnesses Support Unit, created in June 1996 within the Registry,[26] was restructured to give it more weight and help it develop a closer relationship with the witnesses. A sub-unit was opened in Kigali for this purpose in July 1997.[27] As an extension to the policy of the new Prosecutor Louise Arbour and the report of the NGO Coalition for Women's Human Rights in Conflict Situations, which revealed the weaknesses of the witness protection system,[28] "the Registrar has established as a separate Unit from the Victims and Witness Support Unit, the Unit for Gender Issues and Assistance to Victims. Above all, the Unit's aim is to provide input through Gender and Victims Advisory Services to improve gender sensitivity in protecting and supporting the witnesses in trials at the Tribunal."[29] A gender and victim assistance adviser was appointed in 1998, and the adviser dealing with parity for the Registry would also assume this function in the Victims and Witness Support Unit. For administrative purposes and to offer better witness protection, the Victims and Witness Support Unit was restructured again in March 2000 to separate the defence witnesses from the prosecution witnesses.[30]

To associate the local NGOs with the ICTR's justice and eventually rely on the NGOs to maintain the connection with the witnesses and victims of sexual violence identified by the Tribunal, in 1999 the Victims and Gender Support Unit mandated non-governmental organizations operating in Rwanda (including HAGURUKA, AVEGA, Rwanda Women Network and its social network ASOFERWA, and Pro-femmes Twese Hamwe) to provide services in legal guidance, psychological and medical rehabilitation and other forms of assistance, such as resettlement, to victims and witnesses.[31] Acting through local organizations, this "Support Programme for Witnesses and Potential Witnesses" focused primarily, but not exclusively, on female victims of sexual violence.[32] It was set up in 1999 under Article 34 of the Statute of the ICTR,[33] on the initiative of the gender and witness protection adviser. It thus sought to respond to the requests of women witnesses.[34] The program included several components, including a medical component (gynecological, medical and psychological care) involved at every stage of the proceedings, a financial component to contribute to the re-housing of the women and their family (particularly in Taba Commune) and reduce poverty in the post-trial phase, and a witness protection and relocation component. In Arusha, the women witnesses also benefited from psychological assistance services. Set up by Françoise Ngendahayo, the project operated without difficulty for one year from 1999 to 2000. It was then voted a new budget for the second year.

It is therefore realistic to believe that the arrival of a new Prosecutor and her team, the reorientation of the prosecution's policy, the structural reorganization of the OTP and the Registry, and the series of seminars and training on the issue of sexual violence led to an increase in the prosecution of sexual violence in the indictments. However, they do not explain the levelling off of the number of indictments, as shown in Graph 2. It is appropriate to focus on this phenomenon to understand it.

B - Levelling off of sexual violence prosecutions in 1996-2001

The explanations concerning the levelling off of sexual violence prosecutions are contingent on the ICTR's theoretical architecture and the accusatory conception of the role of the prosecution that make testimony the Gordian Knot of the Prosecutor's work, both due to the imperative necessity of assembling the case files and the difficulty of finding witnesses.[35]

1) The problem of testimonial evidence

"Witness statements are the building blocks upon which the prosecution directly bases its case," the President of the ICTR wrote in the Fifth Annual Report of the ICTR in fall 2000.[36]

The prosecution must therefore find evidence of sexual violence, but it is still essential that the crimes for which evidence must be provided were actually perpetrated. Objectively, not all the guilty parties systematically perpetrated acts of sexual violence or even encouraged their perpetration. Moreover, while it appears evident that sexual violence is part of the genocidal model, the evidence on which the Prosecutors base their indictment is sometimes unavailable or insufficient. It is therefore notable that only 1/6 of the witness statements taken by the investigation teams concerned acts of sexual violence.

Moreover, despite the creation of a specialized investigation team, the number of witness statements taken on this issue did not increase considerably from year to year. For example, in the Fourth Annual Report of the ICTR for 1998-1999, the President of the ICTR reported that 85 of the 328 witness statements taken by the investigators concerned sexual crimes,[37] while during 1999-2000 there were 113 statements regarding sexual violence out of a total of 600 witness statements.[38]

There is thus a very clear and growing disproportion in the witness statements taken on sexual violence from year to year. This disproportion illustrates the difficulty that the Special Investigations Unit encounters in gathering evidence and taking witness statements on sexual violence, apart from the fact that these difficulties coincided with a change in Prosecutor in 1999.

2) The difficulties encountered by the Office of the Prosecutor in gathering evidence and taking witness statements regarding sexual violence

These difficulties have several explanations that together pertain to the difficulty of finding witnesses who agree to testify, the doubt of women's NGOs and female victims regarding the Tribunal's real capacity to prosecute sexual violence, and the existence of a variety of logistical and human obstacles that impede the Prosecutors' work considerably.

a) The difficulty of finding witnesses willing to testify

Some of these difficulties are due to the disappearance of witnesses due to death, moving or forced dislocation as a result of attacks on refugee camps or armed conflicts in the countries where the witnesses have found refuge.[39] Some victims infected with AIDS are also unable to testify before the ICTR due to their poor health or hospitalization.[40]

Moreover, there is a very strong cultural taboo regarding sexual violence in this part of the world. Some women who have successfully reintegrated into social, family and professional life do not want to testify at the ICTR out of fear of being stigmatized and rejected.[41] For example, it is very revealing that even though the members of Louise Arbour's office interviewed 360 female victims of sexual violence in December 1998, the investigators took only 85 witness statements.[42]

Finally, the bad experiences of women in giving testimony on sexual violence in terms of the lack of psychological counselling, the absence of preparation for testimony and especially for cross-examination, the absence of psychological and financial assistance and the ineffectiveness of the anonymity or discretion measures that increase the risks incurred (death threats, assassination attempts) by the witnesses upon their return to the country[43] are all dissuasive factors.

Thus some suspicion exists regarding this tribunal located in Tanzania, which has considerable means from the perspective of the Rwandan population and treats the accused according to standards of justice that maintain them in their privileged status yet claims to be unable to compensate the victims.[44] Moreover, women who were victims of sexual violence during the genocide have immediate needs other than their need for justice or recognition of these crimes, including subsistence, housing, schooling and medical care.[45] The Office of the Prosecutor and the gender adviser heeded this message, because the ICTR cooperated in 1999 and 2000 with the local NGOs to set up the Support Program for Witnesses and Potential Witnesses. However, for reasons that will be explained later, this program did not win the total support of the victims and the women's NGOs, and ultimately the International Criminal Tribunal for Rwanda had little to offer in the balance of the cost/benefit analysis. However, the difficulties encountered by the Tribunal did not stop there. They also concerned the legal aspect of being able to prosecute and convict perpetrators of crimes of sexual violence.

b) Doubts regarding the Tribunal's capacity to prosecute and convict perpetrators of sexual violence committed during the genocide

The other difficulty encountered by Louise Arbour's office comes from the legal action and what women's associations have perceived as an inability by the ICTR to prosecute and convict perpetrators of sexual violence effectively. The defence NGOs, like the women's and female victims' NGOs, have experienced a series of disappointments regarding the work performed by the ICTR on this issue.

The first disappointment was the lack of response from the judges in the RUZINDANA case when, in fall 1997, the witnesses spoke about sexual violence. This occurred shortly after a similar case (Akayesu), and the women's NGOs and female victims were entitled to expect, at a time when women were prosecution witnesses in another chamber on sexual violence for the first time in the Akayesu trial,[46] that the judges (William Sekule, Yakov Ostrovsky and Hossein Khan) in the RUZINDANA case would suspend the trial and ask the prosecution for an additional investigation on the allegations of sexual violence.[47] Yet the judges maintained a stony silence on this issue, and the Akayesu precedent triggered no judicial response.

The second point of dissatisfaction was that in two cases (AKAYESU and MUSEMA),[48] it was necessary to wait until the victims spoke during the trial about the acts of sexual violence for the Prosecutors to decide (under some pressure) to amend the indictments to include new charges regarding the acts denounced by the witnesses. Without these witness victims and pressure from the NGOs, would the indictments have been amended?

The third disappointment was the Prosecutor's choice not to (investigate?) prosecute the accused for sexual violence when the victims and witnesses had denounced them or when the violence perpetrated had been documented by the women's NGOs in Rwanda. For example, the AVEGA report states that the accused KANYABASHI Joseph and NDAYAMBAJE Elie, known to the NGOs for having planned the acts of sexual violence in Butare prefecture,[49] were not charged with these acts in their initial indictments of 1996 or in the amendments of 1999.[50]

Moreover, in some cases, items of evidence regarding sexual violence were knowingly kept quiet by the prosecution under a strategy defined by the Prosecutor. In the CYANGUGU case, it had become clear before the trial began that the Prosecutor's strategy was not to present items of evidence in the possession of the OTP regarding sexual violence. As a result, the Prosecutors did not file the amendment drafted against two of the three accused-Bagambiki and Imanishimwe. For this reason, when the witnesses let the allegations of sexual violence slip out during the trial in October and November 2000 and the NGO Coalition for Women's Human Rights in Conflict Situations attempted to have the indictment amended in March 2001,[51] sexual violence remained excluded from the discussion, and the prosecution preferred to focus on points of procedure.[52]

The fourth error undoubtedly was the withdrawal of the rape count in the SERUSHAGO case in exchange for his cooperation with the Tribunal as part of his guilty plea in October 1998. Omar SERUSHAGO was accused of crimes against humanity for murder, extermination, torture and rape. The fact that rape was dropped from his indictment in favour of the other counts gives female victims and women's associations the impression that crimes of sexual violence are not treated with the same degree of seriousness and importance as other crimes.[53]

A fifth problem was the prosecution's policy regarding joint trials, which led it to file motions for a joinder of cases to consolidate several indictments or to file joint indictments. The objective was to maximize efficiency in the use of judicial resources, spare witnesses the burden of having to repeat their testimony in several trials and facilitate proof of the conspiracy to commit genocide.[54] In 1999-2000, this policy led to the grouping of the accused in four major joint trials: the BUTARE Cases, the CYANGUGU Cases, the MILITARY Cases and the MEDIA Cases. In two of these four joint cases (MEDIA and CYANGUGU), the indictments did not mention sexual violence, even though the witnesses clearly mentioned such acts several times, and, in the Cyangugu Cases, the issue of amendment of the indictments against two of the three accused was debated on several occasions. Thus it would be easy to believe that, on the initiative of the new Prosecutor (Carla del Ponte took office in August 1999) and despite her assertions to the contrary, the prosecution's policy tends to favour the holding of joint trials to the benefit of proving "conspiracy to commit genocide" to the detriment of sexual violence prosecutions.[55] In addition to these legal difficulties are logistical and human difficulties of a structural nature.

3) Other logistical and human difficulties

More generally, it may be that despite all the Prosecutor's efforts and good will, the prosecution and conviction of perpetrators of sexual violence has been impeded by the following logistical and human obstacles:

- The recurring staff shortage and major turnover, which increases the difficulty of recruiting staff specialized in gender issues

- The shortage of technological resources (computers, digitization of judicial archives, access to electronic databases such as Westlaw, Lawtel, Proquest), hindering the drafting of indictments[56]

-  The presence of former participants in genocide on the ICTR's investigative teams, which undermines the witnesses' confidence

- The difficulties of indexing, archiving and administering items of evidence, which undoubtedly caused the loss of some of these items[57]

-  The large number of witnesses and the interpretation of testimony, which delays processing of the case files[58]

- The decline in reliability of testimony many years after the alleged event, which hinders proof of the evidence[59]

- Some staff resistance to gender issues and to dealing with sexual violence despite sensitization on this theme[60]

- The sometimes difficult relations between the ICTR's services (there were apparently difficulties of coordination and jurisdictional conflicts between the Witnesses and Victims Support Section under the administration of the Registry and the Witness Management Team, a task force within the Investigations Unit of the Office of the Prosecutor)[61]

These points are all factors that explain why the prosecution of sexual violence has been a real, but mixed, success from 1996-2000. While some problems were resolved (notably all those pertaining to information technology and logistics), others increased considerably in 2001-2002, translating into a spectacular drop in the incrimination of sexual violence in the indictments during the latter period.

C - The decline in incriminations of sexual violence in the indictments
made as of February 2001

This finding is the result of a conjunction of events and reforms after Swiss Prosecutor Carla del Ponte took office in August 1999. Carla del Ponte's arrival was accompanied by a number of measures to rationalize the work of the investigators and Prosecutors, restructure the Office of the Prosecutor and reorient the policy on prosecution, all of which produced effects as of 2000. Apart from these internal transformations, 2002 was the year that saw the relations between the ICTR and Rwanda worsen again. Touching on this quarrel was the intention to extend the Tribunal's judicial activity to acts perpetrated by APR troops when they took power in 1994 and the discussion of the extension of the ICTR's temporal jurisdiction and ratione loci to acts perpetrated by Rwandan citizens in Burundian and Congolese territory after 1994, which would have the effect of jeopardizing certain members of the current RPF government.[62] From the point of view of the Rwandan NGOs, the attenuated but perceptible suspicion regarding the Tribunal in the time of Louise Arbour was accentuated because of the new orientations and the latest judicial results.

1) Rationalization, restructuring and reorientation

When she became Chief Prosecutor, Carla del Ponte showed great ambition by announcing her action plan for the next few years of the ICTR's operation. She announced her intention to prosecute 136 new suspects by 2005.[63] The implementation of this new program led to the adoption of a restructuring plan for the Office of the Prosecutor, rationalization of resources and reorientation of the prosecution policy, which did not fail to have consequences for the incrimination of acts of sexual violence at the very time when the contingent of judges at the ICTR was being feminized.[64]

a) Dismantling of the sexual violence investigation team

The Investigations Division was totally reorganized, and the Kigali-based investigation team assigned to sexual violence was dismantled.[65] Some of its members were reassigned to investigation teams that were henceforth composed of a Legal Adviser, a Criminal Analyst, a Sexual Assault Investigator, a Language Assistant and a secretary. However, a core unit would continue to provide coordination and supervision. The emphasis now shifted to tracking the whereabouts of criminals who had found refuge abroad, with the formation of a team of investigators specially assigned to this task[66] and the implementation, sponsored by the United States Government, of the Rewards Program for War Crimes.[67] According to some, the prosecution of ex-RDF and Interahamwe refugees in Kivu Province in Congo would also be the field of competence of any new Special Investigations Unit,[68] thus named for its ability to change "specialty" according to the priorities defined.

b) Staff change

Seven Prosecutors were dismissed in May 2001 for incompetence,[69] and the contract of Assistant Chief Prosecutor Bernard Muna was not renewed. Ken Fleming replaced him. The new Prosecutors took office in September 2001, which, of course, resulted in a loss of time. The post of Deputy Prosecutor still seems to be vacant after more than a year and a half. This cannot fail to have an adverse impact on the Office of the Prosecutor in Kigali, because a team of seven lawyers is mandated to draft indictments under the aegis of the Assistant Prosecutor.[70] The Registry staff was also replaced, with Registrar Okali giving way to Adama Dieng (Senegal) in March 2001, while October 2001 saw the arrival of a new Assistant Registrar. The contract of Françoise Ngendahayo, the ICTR's Gender Adviser, was not renewed in August 2001.[71]

c) Acceleration of proceedings and improvement of case files

On the other hand, in 2001-2002, the Prosecutor, under pressure due to recruiting difficulties and international criticism of the slowness of the proceedings, considerably reduced her prosecutorial ambitions[72] and decided to make every effort to speed up the proceedings. Rationalization of indictments and reduction of delays are on the agenda.

New formulas are being studied to narrow the scope of the disputed issues during the trial and accelerate proceedings.[73] What does this mean in practice? It is possible to find the answer to this question in § 41 of the Sixth Annual Report of the ICTR (2000-2001): "Some trials are finalized within a few months, where, for instance, the defence is willing to make admissions to narrow the disputed issues." In this case there is every reason to fear difficulties regarding incrimination for sexual violence in future indictments, because if there is one charge on which the accused have always refused to plead guilty when they have acknowledged their involvement in other crimes, it is sexual violence. As a major point of contestation, proof of sexual violence risks giving rise to an increase in prejudicial questions on this aspect, a practice that the Tribunal is trying to curb in the Office of the Prosecutor in the pre-trial phase and in the judges during the pleadings.[74]

Consequently, it can be anticipated that sexual violence will be a more important challenge than it was before, because it depends on a strategic choice of charges in a context of temporal, financial and political constraints. This concern has proved valid. Since February 2001, only six of the fifteen indictments issued by the new Prosecutor's team include charges of sexual violence, compared to six out of six in 2000. This concern is reinforced by the fact that three of the nine other indictments concern accused known and denounced by the Rwandan NGO AVEGA-Aghorozo for having planned violence against women in the PVK[75] but not prosecuted for this type of crime. These indictments involve Tharcisse RENZAHO, charged in November 2002, François KARERA, charged in June 2001, and Léonidas RUSATIRA, charged in May 2002, but against whom the Prosecutor dropped the charges in August 2002.

Other watchwords are professionalism and precision. Henceforth the indictments will have to be precise and fully substantiated-the charge will only be retained if the evidence is fully conclusive.[76] The cases prosecuted will be carefully chosen, and the other cases, delegated to internal jurisdictions.[77] Juxtaposed to this is the very firm intention of Carla del Ponte and the members of the Tribunal in general to avoid, whenever possible, what occurred in 1997-1999-the proliferation of amendments to indictments. In this regard, the failed attempt by the NGO Coalition for Women's Human Rights in Conflict Situations to amend the indictment in the Cyangugu trial is certainly not unrelated to the Tribunal's new policy. The requirement of professionalism and conciseness specifically tends to avoid the additional delays caused by preparing the cases, amending the indictments, and the swarm of procedural motions and interlocutory appeals that such an intervention generates. There is every reason to believe that the "new version" indictments filed in 2001 and 2002 will be subject to very few amendments. Few of them mention sexual violence.[78] The consequences of this policy for the prosecution of sexual violence cannot yet be prejudged, but the very clear intention of the Tribunal (judges, Registry and prosecution) to accelerate the proceedings at any price leads us to question the continuation of the work undertaken in 1997-2000. This is a disturbing turn of events in a context of disappointing results of the ICTR's judicial activity in matters of sexual violence.

2) The ICTR's poor results in convictions for sexual violence-a bitter conclusion

The question is especially sensitive in that the trend of the jurisprudence in this field over the past two years strikes a blow to the credibility of the cases set up by the prosecution. Indeed, for the first time in 2001, the Court of Appeal reversed Alfred MUSEMA's guilty verdict by striking down the rape charge after hearing two defence witnesses who had not been heard at the trial.[79] Moreover, in June 2001, Ignace BAGILISHEMA, charged among other crimes with rape (serious violation of Article 3 common to the Geneva Conventions and Additional Protocol II), was acquitted on all counts and released. The Court of Appeal upheld the acquittal in July of that year. Finally, in August 2002, the prosecution moved for the complete withdrawal of the indictment against RUSATIRA Léonidas. More than ever, these particularly annoying developments, particularly on the issue of sexual crimes, call into question the real capacity of the Tribunal and the judges to convict the accused effectively for the sexual violence they committed. The results of the prosecution's work in this field are very discouraging, as the following graph illustrates:

Graph 5

 

Of the eleven cases on which the judges ruled, eight led to a conviction and one resulted in an acquittal. Two did not result in a judgment because the Prosecutor decided to withdraw the indictments. All in all, out of these eleven cases, only four indictments involved incriminations for sexual violence. One of these charges was withdrawn by the prosecution in exchange for a guilty plea and did not result in a judgment (Omar SERUSHAGO). In two other cases, the individuals accused of sexual violence were acquitted, as mentioned in the previous paragraph (Ignace BAGILISHEMA, Alfred MUSEMA). In the latter case, Musema's guilt on the other charges was upheld. Consequently, of the eleven cases presented before the Chamber, only one led to a conviction for sexual violence (AKAYESU). It can therefore be assumed that these outcomes had some influence on Prosecutor del Ponte's intention to maintain sexual violence as a priority or at least encouraged her to be more cautious regarding the incrimination of sexual violence by only favouring cases in which the evidence would be "guaranteed."

Therefore, Graph 5 reveals that 1. judicial activity has steadily declined since 2000 and 2. no judgment has involved a conviction for sexual violence since October 2, 1998. The Tribunal apparently faced conflicts of interest between services and personality conflicts during 2000 that seem to have contributed to a work slowdown.[80] For the court's legitimacy, it is to be hoped that the months ahead will see 2002 close with the announcement of judgments in the cases of SEMANZA and NTAKIRUTIMANA Senior and Junior, with convictions for sexual violence for Semanza.[81] The judgment in the NIYITEGEKA case, which is particularly interesting for the characterizations retained regarding sexual violence,[82] will therefore have to wait until March 2003. It can effectively be understood that, given such discouraging results, the prospects of sexual violence in future indictments and the prospects for amendments and convictions, the women's and victims' NGOs have little confidence in the Tribunal's ability to hear cases of sexual violence perpetrated during the genocide and obtain convictions.

3) The ICTR, the witnesses and female victims: a history of mistrust

The years 2001 and 2002 were marked by a series of blunders and difficulties that poisoned relations between the ICTR and Rwanda and very seriously undermined the confidence of the witnesses, the victims and the Rwandan NGOs in the ICTR. In March 2002, the Rwandan NGOs, including the women's and victims' NGOs and the Government of Rwanda, decided to break off cooperation with the ICTR, thereby impeding the progress of the hearings and complicating the work of the prosecution and the defence.

a) The inadequacy of the Support Programme for Witnesses and Potential Witnesses in terms of victims' needs

This inadequacy is manifested in two ways. First, the reorientation of the Programme led to the abandonment of the social component, which nonetheless responded to other needs expressed by the victims and relayed by the Rwandan NGOs. Second, the applicable medical component does not correspond to the Rwandan reality because the psychological help offered to victims of sexual violence would have been available in Swahili and not in Kinyarwanda.[83] Moreover, it would seem that the Witness Protection Programme is sometimes ineffective, and witnesses were victims of harassment, intimidation, and even attempted murder. These incidents have been regularly denounced by the local and international NGOs since 1996.[84]

Certainly, the issue of sexual violence is still announced as important,[85] and the Prosecutor has created a Witness Management Team to maintain contact with witnesses and meet their needs.[86] Unfortunately, this Team is intervening at a time when the Support Programme for Witnesses and Potential Witnesses directed by Gender Adviser F. Ngendahayo is being contested and reconsidered.

In fall 2000, J-P Akayesu's Canadian counsel in appeal seriously challenged these plans by questioning the Tribunal's impartiality on the question of the choice of prosecution victim witnesses funded by this Programme in the Taba region (the scene of J-P. Akayesu's crimes), and an association of defence lawyers called for cancellation of the Program.[87] Counsel's criticisms challenged the Tribunal's legal competence to carry on a restitutive justice program in a commune where crimes perpetrated by the accused were under appeal, which according to them would tend to prejudge the accused's guilt and undermine the Tribunal's necessary impartiality. Following the departure of the former Registrar Okali and after discussions within the ICTR, the Programme was reoriented and reduced; the financial component of re-housing, development assistance and reconciliation was abandoned,[88] and Françoise Ngendahayo's contract was not renewed. Relations between the victims and the ICTR staff cooled, and the Registry's Witnesses and Victims Support Section is being accused of insensitivity to the issue of sexual violence. This is happening at a time when women no longer benefit from recognition and financial support (which is not the same as reparations) from the ICTR via the Support Programme for Witnesses and Potential Witnesses, and the ICTR is poised to decline responsibility for compensating the victims.

b) Justice without reparations: the victims' disappointment

"Many Rwandans have questioned the ICTR's value and its role in promoting reconciliation where claim for compensation is not addressed. For every hour of every day over the past 7 1/2 years, we have lived with the voices of survivors of genocide and so we strongly urge the United Nations to provide compensation to Rwandan victims," Navanethem Pillay, President of the ICTR, October 28, 2002.[89]

The official announcement made by the ICTR judges in 2000 regarding the Tribunal's inability to compensate the victims seems to have put an end to the issue of victim reparations before the ICTR. Even though the judges have no choice but to rule this way because Articles 105 and 106 of the ICTR's Rules of Procedure and Evidence assign the issue of compensation and restitution of property to the national courts, the judges' official announcement ended the hopes of the Rwandan population that they would eventually receive compensation for their suffering through some judicial process.[90]

For a long time, Judge Navanethem Pillay, and recently Prosecutor Carla del Ponte, maintained the hope of possible compensation by the international community.[91] But on several occasions, despite public statements, Judge Navanethem Pillay had to backtrack, acknowledging the Tribunal's lack of jurisdiction to handle and assess reparation claims.[92] By relegating the issue to the Security Council,[93] the judges, who in any case do not have the financial means for their action even if they were given the legal means by amending the Rules of Procedure and Evidence, have passed on their responsibility to the international community, possibly hoping for strong NGO mobilization on this issue.

A meeting would have been held in Kigali on March 1, 2002 between donor country governments and United Nations agency representatives. If there is ever compensation, it is more than likely that it will come in the form of development, education and health projects that, in any case, fall within the framework of traditional development assistance.[94] The separation of the issue of victim compensation from the ICTR's judicial activities questions the validity and utility for Rwandans of a criminal justice system that can convict but not compensate or repair. Does this mean the aim of criminal justice is only to dissuade and punish and not to repair? In my opinion, this element moves the Arusha jurisdiction farther away from the justiciables on whose behalf it claims to be rendering justice.[95] Another reason for estrangement and suspicion are the scandals rocking the ICTR.

c) The ICTR scandals: credibility undermined

During the years 2001-2002, revelations very harmful to the Tribunal stained the reputation and competence of the investigation teams, even though the investigators in question were contract workers employed by the defence counsel. They certainly were not staff members but were paid from the expenses allocated by the international community to indigent accused.[96] Also, there is no doubt that the laying of charges against defence investigators Siméon Nshamihigo[97] and Joseph Nzabirinda, in June and August 2001, and the non-renewal or suspension of the contracts of the other four defence investigators in July 2001 after an investigator revealed that they appeared on the Category 1 list of genocide suspects in Rwanda[98] considerably undermined the Tribunal's credibility with the public and provided arguments to poison the already fragile relations with the Government of Rwanda.

The former investigators, one of whom is charged with rape, both worked on the cases of accused pending judgment in which sexual violence was mentioned but not retained or discussed (Samuel Imanishimwe of the CYANGUGU cases, Sylvain Nsabimana of the BUTARE cases).[99] Moreover, the Government of Rwanda has wanted Siméon Nshamihigo since 1996 as one of the planners of genocide in Cyangugu Commune, precisely where the accused in the Cyangugu cases operated. Joseph Nzabirinda, charged with rape, was the accomplice of Joseph Kanyabashi, currently on trail for crimes perpetrated in Gnoma Commune. It was the proceeding instituted by the Rwandan Prosecutor Gahima that finally, in May 2001, led Carla del Ponte and the Chief Investigator (Laurent Walpen) to take action against this criminal.

The suspicions regarding the ICTR, which harboured former perpetrators of genocide linked to the accused now on trial, unfortunately are not limited to these few cases. In fact, interpreters[100] and other defence investigators seem to be under fire.[101] Consequently, not only do these incidents undermine the Tribunal's credibility because these investigators sometimes pose as prosecution investigators,[102] but, above all, they impair the possibility of rendering an impartial and truthful justice. The possible manipulation and concealment of evidence, the attempted subornation of witnesses, the pressure to withdraw testimony and the bypassing of the witness protection and anonymity rules intimidate and threaten the witnesses[103] and give substance to the criticisms of this remote, imperfect and unreliable international justice. This is all the more disturbing given that the proof of the ineffectiveness of the witness protection and anonymity measures, particularly for prosecution witnesses, comes at a time when negotiations are under way to repatriate former members of the RDF (Rwandan Defence Force) and the Interahamwe fighting in the Kivu region of Congo. The return of these former criminals and genocide participants causes major potential risks for the witnesses.[104]

Another type of scandal that recently rocked the Tribunal concerns the allegations of attacks on the dignity of rape victims during the BUTARE trial. These accusations relayed by the press[105] questioned the ethics of the defence counsel, particularly regarding the cross-examination techniques, the conduct of the judges and their inability to control the trial.[106] Although denied by President Pillay, they served to fuel the accusations that the ICTR was showing contempt for the victims of genocide.

Although this was not directly related to the issue of sexual violence this year, the Tribunal was also criticized for a number of abuses in the use of fees paid to indigent accused, under jurisdictional assistance.[107] These fees were allegedly split with the accused, and an exchange of services and gifts occurred in the Arusha penitentiaries. These incidents inevitably exacerbated the rancour and accusations of incompetence, laxity and mismanagement.[108]

The revelations led to the January 2002 announcement by the AVEGA and IBUKA associations that they were cutting off all cooperation with the ICTR and would no longer send witnesses to the ICTR.[109] This decision, supported by the Government of Rwanda,[110] obliged the judges to adjourn the hearings of the current trials several times, notably in the BUTARE, KAJELIJELI, NIYITEGEKA and SEMANZA cases. Only four of the eleven witnesses scheduled for the fourth phase of the Butare trial completed their testimony before the Court. Two did not attend the Kajelijeli trial, 14 prosecution witnesses were unable to appear in the Niyitegeka case, and five of the scheduled six witnesses did not testify in the Semanza case. The witnesses' refusal to testify and the impossibility for them to obtain travel documents obliged the prosecution to strike these witnesses form its list in at least two cases[111] and Navanethem Pillay to inform the Security Council to remind Rwanda of its obligation to cooperate with the ICTR.[112]

Regardless of the real grounds for the Rwandan Government's decision,[113] it not only slowed down the Tribunal's work but also caused the Tribunal to enter into a useless and counterproductive wrestling match[114] that has seriously undermined the Tribunal's reputation with the people of Rwanda and ultimately jeopardizes[115] the Tribunal's ability to continue. The Tribunal's legitimacy is at great risk of being called into question once it lacks the means to fulfill its mandate[116] of rendering judgments due to non-cooperation with the country that is home to most of the of the prosecution witnesses on whom the prosecution is based.[117] Since last spring, the Court has been faced with a major judicial and political crisis that risks having disastrous consequences in the future. The crisis is even greater now that the Government of Rwanda and Rwandans have decided to empower the national courts and play the card of parallel justice in preference to complementary justice.

d) The Rwandans' volition to assert themselves in a national justice system

 

In this process of national reconciliation, justice appears to be a fundamental factor. "However, it is pertinent to the reconciliation process that Rwandans feel that justice is being done. There can be no reconciliation without justice."[118] Consequently, the authorities adopted legislation after the genocide (organic law 08/96 of August 30, 1996) and institutional legislation to achieve their goal.[119] The latter initiatives include the establishment of the Gacaca jurisdictions. Although this form of "traditional" participatory justice[120] is criticized both by the genocide survivors and by jurists for its faults and the risks it entails, the Government decided, given the magnitude of its self-imposed judicial burden, to continue along the lines of the Gacaca trials.

Traditionally inspired, the Gacaca trials would have the advantage of involving the local population in the judgment and conviction of certain criminals for the crimes perpetrated between October 1, 1990 and December 31, 1994, complementing the action of the State judicial institutions responsible for judging major criminals.[121] This method would also result in speedier liquidation of a series of court cases and eventually strengthen the national reconciliation process.[122] It appears that the Government of Rwanda has been fairly heavily involved since 2000 in national disposition of the participants in the genocide by closely involving the local NGOs in the reconciliation process (some women responsible for the women's NGOs and genocide survivors have been appointed to key positions in the Rwandan public service).[123] Moreover, the Government of Rwanda is trying to put an end to the criticisms that undermined the credibility of its judicial institutions and its judicial system by reducing the number of prisoners without case files, training more magistrates, and training and sensitizing its officials to human rights and gender issues in a new draft constitution.[124] In my opinion, there is an increasingly clear commitment by the Government of Rwanda to deal with the punishment of genocide at the national level exclusively and thus free itself from international tutelage.

Incidentally, it is likely that the victims of the Rwandan genocide will receive little encouragement in the future from the Rwandan authorities and the local NGOs to appear before the ICTR. Unfortunately, and despite all the efforts made by the ICTR to inform Rwandans of the work accomplished by the Tribunal,[125] the ad hoc jurisdiction is of little or no interest to Rwandans, who, if not critical, are relatively indifferent.[126] However, the NGOs representing female victims and widows of the genocide have made a commitment to the Government to encourage women to participate in the Gacaca trials.

The participation of women in the Gacaca trials is seen by some NGOs (such as AVEGA, SAKURA and Pro-femme) as an opportunity to strengthen the role of women in society and a guarantee of the prevention of conflicts in which women are the first victims. "Women, the hope of national reconciliation" is the slogan launched by Pro-femme, which took the initiative to bring together female victims of the genocide and women whose husbands are accused. As can be seen, the watchword is national reconciliation and national treatment of the Rwandan genocide trials. The Rwandan NGOs, at least until last March, had no a priori hostility to the ICTR's justice. Nonetheless, it clearly appeared before January 2002, in the discussions and the documents they submitted, that their priority was not the ICTR but the Gacaca jurisdictions.[127]

The Gacaca jurisdictions a priori have all the necessary qualities to win the allegiance of Rwandans-rooted in tradition, on their doorsteps, fostering reconciliation and rehabilitation, and encouraging individuals to participate in the process of "justice." However, the Gacaca jurisdictions will not be called upon to hear the sexual violence cases, which in principle will be judged by the national jurisdictions. It therefore seems unlikely, no matter what the NGOs may wish, that acts of sexual violence will be cited and dealt with before these jurisdictions,[128] especially since a number of difficulties have already emerged after five months of operation of the test jurisdictions.[129]

However, sexual violence is not on the agenda of the traditional jurisdictions any more than it is before the Gacaca jurisdictions.[130] There are several reasons for this, in addition to women's traditional taboo on this question. These reasons concern financial and logistical difficulties (of transportation) and the risk of stigmatization. Victims of sexual violence too often are confronted with the investigators' contempt, the audience's mockery, the incomprehension and trivialization of rape by the judicial staff, the reluctance of judges to conduct additional investigations, the discomfort of counsel and their own shame.[131] Moreover, contrary to what happens at the ICTR, women testify with their faces uncovered at public hearings, exposing themselves to popular vindictiveness and potential reprisals from the accused's relatives.[132]

The existing lack of interest of the elites and the population in the ICTR is likely to increase due to the orchestration of an active media campaign aimed at breaking off relations between the NGOs and the ICTR, which has very often been accused of keeping itself too remote from the Rwandan population, and the establishment of traditional local jurisdictions, close to the justiciable, which are immediate, concrete and participatory. Certainly, it is not yet possible to anticipate the consequences of these actions on the willingness of the witnesses to come to Arusha, but this is a disturbing turn of events.

It is therefore likely, for the multitude of reasons cited here and in the preceding sections, that witnesses, including female victims of sexual violence, will be, if not discouraged, not encouraged in the future to testify before the ICTR. Unless they are informed (and kept informed), extremely determined and, above all, supported appropriately and continuously, women are likely to be less and less present on the ICTR witness stand.

Conclusion

After the clear and definite interest shown by the ICTR in prosecuting crimes of sexual violence, the immediate prospects of prosecution in these matters unfortunately are fairly poor. In addition to the low rate of incrimination for sexual violence over the past several years, there is the discrediting of the work and functioning of the ICTR, the revelation of repeated scandals, the weakness of the judicial results, the extreme slowness of the proceedings, constant staff reshuffling and the growing politicization of relations between the Rwandans and the ICTR, all of which undermine the confidence and credibility of this international jurisdiction.

Certainly, this is not the first time that the ICTR has faced incidents with the Government of Rwanda, and the history of the relations between Rwanda and the ICTR is strewn with declarations breaking off cooperation between the international jurisdiction and the Government.[133] However, up to now, the Rwandan authorities had not taken any action that specifically intended to prevent the Tribunal from functioning. The June 2002 decision by the Rwandan authorities to change the conditions for issuing travel documents for witnesses and the refusal of the witnesses to come to Arusha really prevented the Tribunal, for the first time,[134] from pursuing the hearings and maintaining the evidence in some cases for fifteen days. This is a disturbing trend, because the Tribunal's very reason for existence is jeopardized.

Moreover, the Tribunal still suffers from the attack on its professional credibility. Independently of the political vicissitudes, media noise and the popular commotion surrounding the Tribunal's work, it had trouble convincing justice professionals of the quality and reliability of its work. If convictions and acquittals are the proof that judges work effectively and in accordance with the standards and principles that assure the legal validity of their decisions, of which we should all be glad, the poor quality of the prosecution's files and the lack of professionalism of certain members of the Registry are largely responsible for this loss of credibility. Even though the Tribunal has made a lot of progress to solve the problems put before it, we nonetheless find it disturbing that the defence's rights sometimes are still thwarted in these trials, that the case files are conducted by a succession of Prosecutors, that the witnesses are mishandled during examinations and cross-examinations, and that counts are withdrawn after confirmation judge confirms them.

Moreover, the excessively poor results of the ICTR's judicial activities in convictions for sexual violence, the political direction adopted by the Office of the Prosecutor regarding prosecutions for sexual violence, the problems of witness protection and the common model that make the Prosecutor more a strategist than an investigator have certainly contributed to discouraging female victims from testifying on such a sensitive issue. The victim in this accusatory proceeding has no role except as a witness; she isn't a player in the trial. It could be that the impossibility for the victims to bring civil suits discourages some victims from participating in a justice system that will not give them the means to empower themselves, nor to be recognized and compensated as victims.[135] This is a fact that Carla del Ponte, with her civil law background, as well as the negotiators of the International Criminal Tribunal[136] and Rwandan jurists have perfectly understood. This is also one of the key elements of the Gacaca jurisdictions.

Consequently, in the absence of a civil party procedure before the ICTR, it is up to the prosecution to shed all the light on the crimes perpetrated and indict the criminal for all of his known crimes. However, not only were the voices of the victims of sexual violence not heeded when used, but the victims were also deliberately sacrificed on the altar of judicial expediency. More than any other victim, victims of sexual violence cannot accept to be unrecognized, ignored and abandoned when they have taken this first step to reveal their terrible and shameful secret. Even though the reaction of the Tribunal's bodies is explicable and justifiable from a technical-legal point of view, it nonetheless appears to the victims who deeply care about this issue that the Court has shown phenomenal contempt in this matter. As a result, not only is the victims' confidence in the ICTR undermined, but the confidence of the women's and survivors' NGOs that were working to establish special ties between the women and the ICTR has deteriorated so much that we wonder whether pending ICTR work on the prosecution of sexual violence is still possible.

The results of the trials in the key cases regarding sexual violence (Niyitegeka, Semanza, Pauline Nyiramasuhuko and her son Ntahobali Arsène, the only persons indicted for sexual violence in the Butare Cases) and the practical application of the commitment made by the defence in the Cyangugu trial to open a new proceeding against Bagilishema and Imanishimwe to prosecute them specifically for sexual violence[137] will be crucial to the ICTR's future. The accomplishment of these results depends on the confidence of the witnesses and women in the Tribunal's ability to recognize the magnitude of the violence committed against them. Now that new conflicts are beginning on the African continent (Côte d'Ivoire) while others are dragging on, and as new international criminal jurisdictions are coming into force (the ICC and the Ad Hoc Tribunal for Sierra Leone), the mission of the Court, because it is African and was daring in its Akayesu jurisprudence, is at an essential turning point in its history and in the continent's future with regard to the suppression of crimes of sexual violence against women in armed conflict situations.


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Martine Schotsmans and Le Cocq, "Le droit à la réparation des victimes de violences sexuelles pendant le génocide: analyse de l'état actuel - obstacles-suggestions de solutions," ASF (Avocats sans Frontières), March 2000.

Michel Moussalli, Special Representative on the situation of human rights in Rwanda: "Question of the Violation of Human Rights and Fundamental Freedoms in any Part of the World. Report on the Situation of Human Rights in Rwanda." Off. Doc. Commission on Human Rights, E/CN.4/2001/41/Add.1, March 21, 2001.

NGO Coalition for Women's Human Rights in Conflict Situations, "Amicus Brief Respecting Amendment of the Indictment and Supplementation of the Evidence to Ensure the Prosecution of Rape and Other Sexual Violence Within the Competence of the Tribunal" in the Akayesu case, May 1997, available on the site http://www.ichrdd.ca/.

NGO Coalition for Women's Human Rights in Conflict Situations, "Witness Protection, Gender and the ICTR" (October 17, 1997), available on the Rights & Democracy site, http://www.ichrdd.ca/frame00e.html (access date: November 10, 2002).

OIOS, "Report on possible fee-splitting between detainees and defence counsel at the ICTR and ICTY," General Assembly, UN Off. Doc., A/55/759, Annex 2 of February 1, 2001.

Pro-femmes Twese Hamwe, "Plan stratégique en matière de genre et gestion des conflits 2002-2004," Kigali (Rwanda), March 2001, available on the Web site http://www.international-alert.org (access date: November 20, 2002).


Reply of Registrar Okali to the accusations of J-P Akayesu's defence counsel concerning the Support Programme for Witnesses and Potential Witnesses appended to the press conference given on October 9, 2000, ICTR/INFO-9-13-017, on p. 3 of his response, available on the Web site http://www.ictr.org/wwwroot/ENGLISH/pressbrief/2000/okreply.pdf.

Sukhdev Chhatbar, "Rwanda genocide suspect nabbed in Brussels" (January 6, 2002), Arusha Times, available on the Web site / (access date: October 15, 2002).

Thierry Cruvellier and Franck Petit, "Unprotected witness" (November 10, 2001), Diplomatie judiciaire, available on the Web site .com.

Thierry Cruvellier, "Investigators under scrutiny" (May 21, 2001), Diplomatie judiciaire, available on the Web site .com/UK/Tpiruk/ImanishimweUK1.htm (access date: October 15, 2002).

Thierry Cruvellier, "The Karangwa trap" (April 26, 2002), Diplomatie judiciaire, available on the Web site .com/ (access date: October 15, 2002).

Ubutabera, available on the Diplomatie judiciaire Web site: .com/.

United Nations Security Council, Letter to the President of the Security Council from the President of the ICTR, Security Council, Off. Doc. S/2002/847.

United Nations Security Council, Reply of the Rwandan Government to the Prosecutor's Report of the letter to the President of the Security Council from the President of the ICTR, Security Council, Off. Doc. S/2002/842, of July 26, 2002.

V. Cormon, "Viols et metamorphoses" (2002), 1:1 The International Journal of Victimology.

Valerie Oosterveld and Rondha Copelon, "First rape charges brought at the Rwandan Tribunal" (Sept. 1997), 4 Human Rights Tribune.



[1] See Article 1 of the Statute of the International Criminal Tribunal for Rwanda, Security Council Resolution 955 of November 8, 1994, UN Security Council, Off. Doc. S/RES/955 (November 8, 1994.)

[2] See Article 3 § g of the Statute of the ICTR, Ibid.

[3] See Article 4 § e of the Statute of the ICTR, Ibid.

[4] See amended indictment of November 20, 2000 in the matter of Eliezer Niyitegeka (Counts 8 and 9). These indictments are available on the ICTR site, http://www.ictr.org/. For a detailed review of the indictments and their evolution, also see the site of the McGill Doctoral Affiliates Working Group on International Justice, and -index.fr/ for the French version.

[5] See the amendment to the indictment of June 23, 1999 in the matter of Semanza (Counts 11 and 13). Ibid.

[6] See § 507 and 508 of the Jean-Paul Akayesu judgment, Trial Chamber, September 2, 1998. Available on the ICTR site, http://www.ictr.org/.

[7] See the indictments against Jean de Dieu Kamuhanda of September 28, 1999, upheld on October 1, 1999, Eliezer Niyitegeka of 1996, amended in 2000 and 2001, against Sylvestre Gacumbitsi of June 20, 2001, and Jean Mpambara of July 23, 2001, supra Note 4.

[8] "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 objects and/or the use of bodily orifices not considered to be intrinsically sexual." § 596. "The chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive." § 598 of the judgment in the Akayesu case, see supra Note 6. This paragraph also defines acts of sexual violence.

[9] See the report by AVEGA-AGAHOZO, "Étude sur les violences faites aux femmes," Kigali, December 1999, p. 18-19.

[10] "Rape is a criminal act, a sexual torture, but it is primarily an attempt to put to death, attempted murder. This is a major act of violence against life and the victim perceives this as an assault on the very essence of her being. The person's identity is negated because she is negated in her speech, in her refusal, in her desire. Space and time are confused in this instant, which will lead to disorientation and loss of reference points. There is only subjugation to the torturer's all-powerful violence. Terror most closely describes what the victim feels in being thus confronted with the unnameable by this encounter with death, with nothingness. The trauma is not only a vital confrontation-the victim sees herself dead. Death is imposed on her as a reality that leaves her petrified, motionless and speechless." by V. Cormon, "Viols et métamorphoses" (2002) 1:1 International Journal of Victimology [unofficial translation].

[11]This refers to the date of issue of the first indictments in November 1995.

[12] It is understood that the indictments are counted as one indictment per accused, regardless of the amendments and joined indictments that have been grafted onto the procedural history of the accused's file.

[13] Except for Serushago.

[14] These were the revelations of witness H in March 1997. It should be noted that in 1997, three trials were conducted concerning four accused. Of these three trials, only the Akayesu case dealt with sexual violence, while it was cited in other cases. For example, the issue was not explored in the other trials for the accused Ruzindana, Kayishema and Rutaganda, whereas for the RUZINDANA case, the 23rd witness at the trial testified about sexual violence perpetrated against women. See the information on the Ruzindana trial on the Fondation Hirondelle Web site, http://www.Hirondelle.org/.

[15] The Trial Chamber did not decide whether to accept or reject this amicus curiae brief. The text of the amicus brief is available on the Web site http://www.ichrdd.ca/. It was submitted in May 1997 following the revelations of witness H during the Akayesu trial on March 6 and 7, 1997.

[16] By the admission of the NGO Coalition for Women's Human Rights in Armed Conflicts, the Coalition, before transmitting the amicus brief in the AKAYESU case, approached Prosecutor Louise Arbour to appeal for a reform of the sexual violence investigation system. See Valérie Oosterveld and Rondha Copelon, "First rape charges brought at the Rwandan Tribunal" (Sept. 1997) 4 Human Rights Tribune p. 16. Also see the HRW report, Shattered lives: sexual violence during the Rwandan genocide and its aftermath, NY, September 1996; also see an article published in 1997 by Jan Goodwin, "Rwanda: justice denied" (1997) 6:4 on the issue, available on the Web site / (access date: July 2002).

[17] Following this second workshop, a special team on sexual violence was set up. See § 52 of the Second Annual Report of the ICTR for 1996-1997, UN General Assembly, November 13, 1997, Off. Doc. A/52/582-S/1997/868. Also see § 52 of the Third Annual Report of the ICTR for 1997-1998, UN General Assembly, September 23, 1998, Off. Doc. A/53/429-S/1998/857.

[18] See § 54 of the Fourth Annual Report of the ICTR for 1998-1999, United Nations General Assembly, September 7, 1999, Off. Doc., A/54/315-S/1999/943.

[19] Ibid.

[20] See § 59 of the Third Annual Report of the ICTR, supra Note 17.

[21] See § 55 of the Fourth Annual Report of the ICTR, supra Note 18. We assume that the training dealt with issues of sexual violence, since this was the second component of the prosecution's new strategy defined in 1997, but we have no certainty on this fact.

[22] In the Fifth Annual Report of the ICTR, the investigators affirmed that they collected 600 witness statements, 113 of which specifically addressed sexual violence. See § 134 of the Fifth Annual Report of the ICTR for 1999-2000, UN General Assembly, October 2, 2000, Off. Doc. A/55/435-SS/2000/927.

[23] "The significant achievement of obtaining a plea of guilty from an accused whose collaboration is likely to advance ongoing investigations as well as the increasing number of indictments and arrests marks a decisive phase in the Prosecutor's efforts to aggressively prosecute persons responsible for serious violations of international humanitarian law and thus to end the cycle of impunity in the Rwandan genocide." See § 153 of the Fifth Annual Report of the ICTR, Ibid.

[24] See § 102-108 of the Third Annual Report of the ICTR, supra Note 17.

[25] This was implemented for recruiting of ICTR personnel starting in 1998. See the Fourth Annual Report of the ICTR in § 102 (1998-1999), supra Note 18. This initiative later translated into the following actions in 1999-2000: "With regard to gender representation at the Professional level, as at 31 August 1999, ICTR had a total of 209 Professionals, consisting of 52 female and 157 male staff members. At that time, 3 out of 13 P?5 employees were female, amounting to a ratio of 18% of the total incumbency of those posts. By 31 October 1999, female staff members occupied 79 of the 211 Professional posts, representing a level of 27%." See § 116 of the Fifth Annual Report of the ICTR, supra Note 22. As at April 30, 2001, in the category of administrators, 72 of the 258 administrators were women. At the P-5 level and above, two out of 19 employees were female. See § 205 of the Sixth Annual Report of the ICTR for 2000-2001, UN General Assembly, September 14, 2001, Off. Doc. A/56/351-S/2001/863.

[26] The Witness Support Unit was established under the Registry on June 24, 1996 in accordance with the Rules of Procedure and Evidence. See the First Annual Report of the ICTR for 1994-1996, UN General Assembly, September 24, 1996, Off. Doc. A/51/399-S/1996/778, at § 70.

[27] See § 82 of the Third Annual Report of the ICTR (1997-1998), supra Note 20.

[28] See the report of the NGO Coalition for Women's Human Rights in Conflict Situations: "Witness Protection, Gender and the ICTR" (October 17, 1997), available on the Rights & Democracy Web site, (access date: November 10, 2002).

[29] See § 82 of the Fourth Annual Report (June 1998-July 1999), supra Note 17. In January 1999, a study was conducted of the women who came forward to testify in the Akayesu case. Recommendations were presented to the Registrar, particularly concerning the actions to be taken after the trial and the necessity of considering a systematic witness-monitoring program. This study highlighted certain aspects regarding the relocation of women witnesses and counselling services intended for women. The Tribunal contacted donors to support this initiative.

[30] See § 87 of the Fourth Annual Report, supra Note 18.

[31] See § 102 of the Fifth Annual Report, supra Note 22.

[32] For the details of the program and the amounts allocated, see the report of International Crisis Group (IGC), "International Criminal Tribunal for Rwanda: Justice Delayed", IGC, NY, June 7, 2001, in the footnote on page 76. Available on the Web site (access date: October 15, 2002).

[33] See paragraphs 106 to 108 of the Third Annual Report of the ICTR, supra Note 17.

[34] This does not only concern women who agree to testify for the prosecution. See the Reply of Registrar Okali to the accusations of J-P Akayesu's defence counsel concerning the Support Programme for Witnesses and Potential Witnesses appended to the press conference given on October 9, 2000, ICTR/INFO-9-13-017, on p. 3 of his response, available on the Web site http://www.ictr.org/wwwroot/ENGLISH/pressbrief/2000/okreply.pdf. It also contains a copy of the letter from Akayesu's counsel.

[35] For a better understanding of the different national criminal justice systems and the weight of testimony in Prosecutorial and investigative systems, see a comparative criminal law study describing the different national criminal justice systems, produced by M.E.I. Brienen et E.H. Hoegen, Victims of Crime in 22 European Criminal Justice Systems: the implementation of recommendation (85) 11 of the Council of Europe on the position of the victim in the framework of Criminal Law and Procedure, Netherlands, 2000. Available on the Web site http://www.victimology.nl/onlpub/Brienenhoegen/BH.html (access date: September 2002).

[36] See § 134 of the Fifth Annual Report of the ICTR (1999-2000), (our emphasis), supra Note 22.

[37] See § 55 of the Fourth Annual Report of the ICTR (1998-1999), supra Note 18.

[38] See § 134 of the Fifth Annual Report of the ICTR (1999-2000), supra Note 22.

[39] For example, see § 22-24 of the Second Annual Report of the ICTR, which discusses the impossibility of locating the 16 refugee defence witnesses in the Tingi-Tingi camp in Zaire following an attack on the camp, supra Note 17. It can be assumed that the problem also exists for prosecution witnesses. Also see the ICTR's difficulty in locating witnesses following a volcanic eruption in the Goma region, which borders the Gisenyi region (Rwanda) to investigate the validity of the accused's alibi. See § 37 of the Seventh Annual Report of the ICTR (2001-2002), UN General Assembly, July 2, 2002, Off. Doc. A/57/163-S/2002/733.

[40] In fact, it was only in 2000 that, for the first time, the Witnesses and Victims Support Section - Prosecution arranged for a deposition to be taken from a witness in hospital who was unable to appear before the Trial Chamber due to illness. See § 172 of the Sixth Annual Report of the ICTR (2000-2001), supra Note 25. Also for the first time, for security reasons, video link testimony was used in the media trials in 2002, which caused some problems. See § 30 of the Seventh Annual Report of the ICTR (2001-2002), Ibid.

[41] See Martine Schotsmans, "Violences sexuelles pendant le génocide: les femmes réclament justice"
(1999) 4 Le Verdict. Women do not want to tell national tribunals about the sexual violence they suffered: "Women will affirm that they resisted their protectors' fanatical sexual appetites for months and months simply by the ruse of mollifying their tormentors with hypothetical promises, while in fact many torturers got involved in the genocide simply for sexual pleasure. Out of modesty and often out of disguised hypocrisy, they will prefer to keep their secret, even at the price of not denouncing the criminals." In the report of the Documentation and Information Centre on the Genocide Trials (LIPRODHOR), Problématique de la preuve dans les procès de génocide : l'institution imminente des juridictions Gacaca constituerait-elle une panacée? Kigali, June 2002, at p. 28.

[42] See § 54 and 55 of the Fourth Annual Report of the ICTR (1998-1999), supra Note 18.

[43] It is appropriate to recall that two witnesses were assassinated following their testimony in the Akayesu and Rutaganda cases. See § 51 of the Second Annual Report of the ICTR (1996-1997), supra Note 17. This seems to be a recurring problem, because the Rwandan NGO IBUKA again reports such threats in its 2002 report. These threats are all the more pernicious in that they emanate from persons formerly in positions of authority. Also see the victims' testimony and the experts' opinion on the Web site of the Women's Caucus for Gender Justice, (access date: July 2001). However, it would seem, according to the ICTR, that no direct cause-and-effect link could be established between the assassination of these witnesses and their testimony. See the ICTR's response to the accusations of the government of Rwanda and the NGOs IBUKA and AVEGA: "More than 500 witnesses have testified before the Tribunal so far. No case of a witness being attacked or killed because of their evidence has been reported to the Tribunal" (our emphasis). In ICTR, Note by the International Criminal Tribunal for Rwanda on the reply of the government of Rwanda to the report of the Prosecutor of the ICTR to the Security Council of August 8, 2002, appended to the report of the IFHR (International Federation for Human Rights), Victims in the Balance: Challenges Ahead for the International Criminal Tribunal for Rwanda (ICTR), IFHR, Paris, October 2002, available on the Web site http://www.fidh.org/ (access date: October 30, 2002), at § 25. Finally, this report by the IFHR, which only questioned seven witnesses, reports that witness protection is assured by the ICTR on the Tribunal's premises and as far as the Rwandan border, but that once they reach Rwandan territory, the witnesses are protected by Rwandan authorities. This is problematic because the victims generally have little confidence in the administrative authorities. See the report of the IFHR (International Federation of Human Rights) on p. 10.

[44] See the decision to reject the amicus brief transmitted by the NGO African Concern in the Musema case of March 17, 1999, requesting that the victims be compensated, available on the ICTR Web site, http://www.ictr.org/.

[45] See the AVEGA report on violence against women on p. 41, supra Note 9.

[46] In spring 1997, the witnesses in the Akayesu case testified about rape and sexual violence, resulting in the trial's adjournment in June 1997. In October 1997, after the indictment of June 17, 1997 was amended, the female victims were called to testify about sexual violence committed against them by Akayesu, supra Note 14.

[47] La fondation Hirondelle reports that the 23rd witness in this case would have testified about sexual mutilation. The defence counsel objected to the inclusion of this testimony in the record.

[48] In this case, for the judges to accept the amendment to the indictment of May 5, 1999 after three months of hearings three years after the confirmation of the indictment in July 1996, it was necessary to wait for the statement of the 21st witness, confirming and completing the statements of several other witnesses on Musema's involvement in sexual violence. Even though the indictment was amended for the first time on November 18, 1998, it did not mention sexual violence. Subsequently, the Court of Appeal would overturn the guilty verdict for rape on the basis of two new defence witnesses. It is remarkable that the judges who granted the amendment to add the counts of sexual violence in the Musema case are the same who had granted the amendment in the Akayesu case-the late Laïta Kama, Navanethem Pillay and Lennart Aspegren.

[49] See the AVEGA report, supra Note 9 on p. 24. The indictments of the co-accused in this Butare joint trial, including those of the two accused denounced by AVEGA, make no reference to sexual violence, even though incidents are mentioned in the indictments.

[50] It is true, however, that other persons denounced in this report have been prosecuted for sexual violence before the ICTR, particularly in the cases of Pauline Nyiramasuhuko and Augustin Ndindiliyimana.

[51] The person responsible for the AVEGA office in the Cyangugu region confirmed to us that 108 cases of rape could have been noted in 12 communes, cities and other locations. Information received by fax on January 17, 2001.

[52] The motion for authorization to file an amicus curiae brief by the NGO Coalition for Women's Human Rights in Conflict Situations was rejected on May 24, 2001 by a decision of the judges of Appeal Chamber III composed of Lloyd George Williams, Y. Ostrovsky and Pavel Dolenc. The prosecution's arguments for rejection of the amicus brief mentioned 1) the fact that the prosecution's strategy was up to the Prosecutor's discretion, and 2) the judges had already ruled orally on the inadmissibility of the issue of sexual violence as not being the object of discussion due to the absence of this type of count in the indictment. See § 9 of the judges' decision of May 24, 2001, ICTR Off. Doc. "Decision on the application to file an amicus curiae brief according to rule 74 of the Rules of Procedure and Evidence filed on behalf of the NGO Coalition for Women's Human Rights in Conflict Situations." The decision is available on the ICTR Web site, http://www.ictr.org/.

[53] "In particular, the Tribunal must ensure that, under its jurisdiction, the issue of violence against women is treated with the same seriousness as other crimes against humanity." These recommendations were issued by AVEGA (Association of Genocide Widows) in its 1999 Report, supra Note 9 on p. 57.

[54] See § 138 of the Fifth Annual Report of the ICTR (1999-2000), supra Note 22.

[55] This recognition during the Cyangugu trial might have obliged the Tribunal to hold two different trials, one for Bagambiki and Imanishimwe, and the other for Ntagerura.

[56] Carried out in 1999-2000. See § 75, 93, 98, 107 and 108 of the Fifth Annual Report of the ICTR (1999?2000), supra Note 22.

[57] See § 79 of the Seventh Annual Report of the ICTR (2001-2002), supra Note 40.

[58] See § 40 of the Sixth Annual Report of the ICTR (2000-2001), supra Note 25.

[59] See § 17 and 20 of the Seventh Annual Report of the ICTR (2001-2002), supra Note 40.

[60] See the article by V. Cormon, psychologist and therapist, on the difficulties encountered by professionals in dealing with rape, supra Note 10. She writes: "Along with the victim's difficulties in speaking are the listeners' defences. Behind rape stands the entire question of relations between men and women, regardless of whether they are from the helping professions." The majority of the ICTR staff is male, and most of these staff members have an African tradition (65%). To shed light on what this implies regarding gender relations in African society based on the Rwandan example while being perfectly aware that differences and nuances exist from one society to another, see the chapter on the status of women in the AVEGA report on violence against women, supra Note 9.

[61] See § 77 of the Fourth Annual Report of the ICTR (1998-1999), supra Note 18; also see § 150 of the Fifth Annual Report of the ICTR (1999-2000), supra Note 22.

[62] Along this line see the article by Jacques Nizeyimana, "Kigali: le leadership du FPR s'estime en droit d'exonération de poursuites sur les crimes de génocide et de crimes de guerre," (August 2, 2002) available on the Web site / (access date: November 15, 2002). See Carla del Ponte's press conference of December 6, 2001 on her intention to prosecute RPF members, available on the ICTR Web site, http://www.ictr.org/ (access date: October 30, 2002). Also see the IGC report on the ICTR, supra Note 32, on p. 34-35, and the IFHR report, supra Note 43.

[63] See § 5 of the Sixth Annual Report of the ICTR (2000-2001), supra Note 22

[64] Indeed, on April 24, 2001, the UN General Assembly appointed two new judges to the ICTR, including Arlette Ramaroson of Madagascar (who comes from the civil law system). On May 31, 2001, the UN Secretary General appointed Andresia Vaz of Senegal (of the civil law tradition) to replace Judge Laïta Kama, who had died. See § 9 and 10 of the Sixth Annual Report of the ICTR (2000-2001), Ibid.

[65] See § 107 and 108 of the Sixth Annual Report of the ICTR (2000-2001), Ibid.

[66] See § 109 of the Sixth Annual Report of the ICTR (2000-2001), Ibid.

[67] See § 116 of the Sixth Annual Report of the ICTR (2000-2001), Ibid.

[68] See the statements of AJIIR (Action pour une justice internationale impartiale pour le Rwanda), AJIIR communiqué) 1/10.02, / (access date: November 15, 2002).

[69] On several occasions, the President of the ICTR cited the Prosecutors' lack of preparation of their cases. See § 44 and 94 of the Sixth Annual Report of the ICTR (2000-2001), supra Note 25. In this report, § 97, the President also cites the staff change without mentioning the exact number of persons dismissed. The number communicated comes from a confidential source.

[70] See § 11 of the Seventh Annual Report of the ICTR (2001-2002), supra Note 40. Also see § 122 of the Sixth Annual Report. It would seem that as at October 30, 2002, the post was still vacant.

[71] Patricia Viseur-Sellers is currently in charge of this file since The Hague.

[72] A total of 24 prosecutions are anticipated in the next few years. See § 22 c) of the Seventh Annual Report of the ICTR (2001-2002), supra Note 40. Also see the press conference given by Carla del Ponte on December 6, 2001 "There is within the international community increasing concern about the additional years of work for the ICTR and when the Tribunal could close its doors. And I may say that the number of investigations had also caused some alarm," available on the Web site http://www.ictr.org/. For example, see the declarations of Nigeria and the European Union on the slowness of the trials reported in the press conference given by the ICTR's spokesperson on June 12, 2000, ICTR/INFO-9-13-015.

[73] See § 125 of the Sixth Annual Report of the ICTR, supra Note 25.

[74] See § 123 and 125 of the Sixth Annual Report of the ICTR (2000-2001), supra Note 25, and § 14 and 15, 30 and 38, 45, 46, 47 of the Seventh Annual Report of the ICTR (2001-2002), supra Note 40.

[75] See the AVEGA report on violence against women, supra note 9 on p. 22.

[76] See the internship report of Bridgette Toy-Cronin, "ANZSIL Support to Interns" (May 2002) 7 Australian and New Zealand Society of International Law Newsletter, available on the Web site http://law.anu.edu.au/anzsil/ANZSILNewsletterMay2002.pdf.

[77] The Rules of Procedure and Evidence were amended to this effect in July 2002. See Article 11a. See § 10 of the Seventh Annual Report of the ICTR (2001-2002), supra Note 40. See the press conference of July 8, 2002, available on the ICTR Web site, http://www.ictr.org/.

[78] See Figure 2.

[79] See § 58 of the Seventh Annual Report of the ICTR, supra Note 40.

[80] See Thierry Cruvellier's article, "ICTR, a wind of change," available on the Web site .com/. Also see the IGC report on the ICTR, supra Note 32, on p. 11 and 12.

[81] See the October 28, 2002 address by the President of the ICTR to the UN General Assembly, available on http://www.ictr.org/ (access date: November 15, 2002).

[82] Notably for genocide and complicity in genocide. Will the Akayesu jurisprudence be repeated? It should be noted that the SEMANZA judgment will be just as interesting, particularly regarding the characterization of rape as torture.

[83] From a confidential source.

[84] See the October 1997 memorandum sent to Louise Arbour by the NGO Coalition for Women's Human Rights in Conflict Situations on witness protection at the ICTR, supra Note 28. Also see the March 2002 joint report of AVEGA and AGURUKA on this problem. Finally, see the IFHR report on the issue of witnesses, supra Note 43.

[85] See § 119 of the Sixth Annual Report of the ICTR (2000-2001), supra Note 25 and § 75 of the Seventh Annual Report of the ICTR (2001-2002), supra Note 40.

[86] See § 106 of the Sixth Annual Report of the ICTR (2000-2001), Ibid.

[87] According to the IGC report, the criticisms also came from Rwandan NGOs that participated in the Programme. See the IGC report on the ICTR, supra Note 32 on p. 32.

[88] See § 37 the Seventh Annual Report of the ICTR (2001-2002), supra Note 40.

[89] See the conclusion of the Navanethem Pillay's address to the UN Security Council, Ibid.

[90] This is especially true in that the reparations issue is not receiving any better treatment at the national level. According to the Documentation and Information Centre on the Genocide Trials, no judgment has been executed to obtain damages, and the Government of Rwanda, which was condemned several times to jointly and severally pay damages and interest, still had not discharged its debt in June 2000. See the report on the Gacaca jurisdictions, supra note 41 on p. 13.

[91] See the Hirondelle article of June 30, 2000, which announces that the Presidents of the two ad hoc tribunals were seeking a mechanism to offer compensation to the victims of genocide. Navanethem Pillay declared at her press conference: "We thought of approaching the United Nations to amend the Statute and extend our mandate so we could compensate the victims," available on the Web site http://www.Hirondelle.org/ (access date: August 29, 1998) [unofficial translation]. Also see the press conference given by Carla del Ponte on December 20, 2000, which dealt with the possibility of freezing Milosevic's accounts to allow compensation of the victims, referenced FH/P.I.S./555-e, available on the Web site of the Project on International Courts and Tribunals, /. More recently, President Pillay wrote in her Seventh Annual Report of the ICTR: "The Prosecutor continues to stress the importance of informing the Rwandan people, especially the victims of crimes over which the Tribunal has jurisdiction, of the work of the Tribunal. () She is supportive of the victims and survivors playing a greater part in the proceedings before the Tribunal and hopes that the Tribunal might have a freer hand in compensating survivors and victims" [our emphasis] in § 72 of the Seventh Annual Report of the ICTR (2001-2002), supra Note 40.

[92] For the first time in October 2000, the issue of compensation for victims and persons unjustly accused was reoriented to focus only on the latter issue. See the press conference of October 9, 2000, ICTR/INFO-9-13-017, held after the discussion of the informal group created by the Security Council on these issues, and compare it with the announcements made by the judges of the two Tribunals in May 2000, Ibid. "The judges agree with the principle of compensation for victims but believe that the responsibility for processing and assessing claims for compensation should not lie with the Tribunal but other agencies within the United Nations systems." See § 84 of the Sixth Annual Report of the ICTR, supra Note?. Also see the IGC report on the ICTR, supra Note 32 on p. 33-34.

[93] See § 91 of the Seventh Annual Report of the ICTR (2001-2002), supra note 40.

[94] In this sense, see the solutions envisioned by the Government of Rwanda in its proposed compensation law. See the IGC report, supra Note 32 on p. 33.

[95] It should be noted that the ICTR's primary purpose is not to produce jurisprudence for the development of international criminal law but to prosecute the persons responsible for genocide and thus contribute to the process of national reconciliation. See the preamble of Resolution 955 of November 8, 1994, which establishes the Statute of the ICTR, supra Note 1. In this sense, also see the IGC report on the ICTR, see supra Note 32, p. 23-28.

[96] Strangely, it must be noted that it was Registrar Adama Dieng who decided not to renew the investigators' contracts. For the Registry, this was an issue of preserving the integrity of the international aid system. "On 16 July, the Registrar of the International Criminal Tribunal for Rwanda decided that the contracts of certain investigators employed by the defence counsel would be suspended or would not be renewed" (our emphasis). See the ICTR press release of August 17, 2001, ICTR/INFO-3-04.EN, available on the Web site http://www.ictr.org/ (access date: October 15, 2002). Also see the press release of May 21, 2001, ICTR/INFO-9-2-266.EN.

[97] He was known as Sammy Bahati Weza. See Thierry Cruvellier, "Investigators under scrutiny" (May 21, 2001) Diplomatie judiciaire, available on the Web site .com/UK/Tpiruk/ImanishimweUK1.htm (access date: October 15, 2002).

[98] One of whom would be rehabilitated after investigation of his identity. This was Aloys Ngendahimana. See Sukhdev Chhatbar, "Rwanda genocide suspect nabbed in Brussels" (January 6, 2002) Arusha Times, available on the Web site / (access date: October 15, 2002). The contracts of Augustin Basebya, who worked on the Kajelijeli case, and Augustin Karera, who worked on the case of Jean de Dieu Kamuhanda and Aloys Ngendahimana, were not renewed when they expired. The contract of Thaddée Kwitonda, working on the case of Arsène Shalom Ntahobali, charged with rape, is suspended for investigation. See Agence Hirondelle, "Rwanda Tribunal sacks investigators suspected of genocide" (July 16, 2001) available on the Web site http://www.Hirondelle.org/ (access date: October 15, 2002) and the ICTR press release of July 16, 2002, ICTR/INFO-9-3-03.EN.

[99] No charges resulted from this mention. This simply emphasizes that, given the sexual violence taboo, both for the investigators and for the victims and the accused, the integrity of the persons who have access to the prosecution files must be absolute and devoid of any suspicion if the Tribunal wishes to maintain trust in such a delicate area as sexual violence.

[100] This refers to Patrick Ssimbwa Bugingo, arrested in Tanzania in November 2001. He worked with the Semanza defence team. See Sukhdev Chhatbar's article, Ibid.

[101] See the case of Pierre-Claver Karanga, who works for the Augustin Ndindiliyimana defence team. He was impleaded in March 2002. See Thierry Cruvellier, "The Karangwa trap" (April 26, 2002) Diplomatie judiciaire, available on the Web site .com (access date: October 15, 2002). Also see the March 2002 press release of the IBUKA and AVEGA NGOs, which cites a number of defence investigators other than those impleaded by the ICTR Prosecutor. Some of these investigators allegedly have family ties with the accused.

[102] For example, see Kate Gehring's article, "Defense investigators posed as ICTR reps, Prosecutor claims" (June 18, 2001) Internews, available on the Web site http://www.globalpolicy.org/intljustice/tribunals/2001/0615rwnd.htm (access date: October 15, 2002). She reports in this article that an investigator posed as a prosecution investigator to a woman who had been the victim of a rape perpetrated by Kanyabashi, accused in the Butare trial.

[103] Ibid.

[104] Ibid. Since then, 600 ex-RDF and Interahamwe Rwandans have been repatriated to Rwanda under the Lusaka Agreements, according to Pierre-Marie Lafrance, human rights observer with MONUC, personal notes taken at a lecture delivered at UQAM (Université du Québec à Montréal) on November 19, 2002. According to the statements of the person responsible for the Unity and Reconciliation Commission in Rwanda, other repatriations were scheduled for the end of November 2002. Personal notes taken at a lecture delivered at McGill University, November 20, 2002. Also see Mamadou Bah, "De Kamina à Kigali: Chronique d'une opération de DDRRR," article of October 17, 2002, available on the MONUC site, / (access date: November 15, 2002).

[105] See the article by Thierry Cruvellier and Franck Petit, "Unprotected witness" (November 10, 2001) Diplomatie judiciaire, available on the Web site .com; relayed subsequently by Mark Turner, "Giggling judges undermine case for international courts: Rwanda's genocide tribunal epitomizes the problems in applying the law to man's inhumanity" (February 14, 2002) The Financial Times, available on Internews, http://www.internews.org/ (access date: October 15, 2002). Also see Hirondelle, "Genocide survivors cut cooperation with UN Tribunal" (January 25, 2002), available on the Web site http://www.Hirondelle.org/ (access date: October 15, 2002).

[106] The President of the ICTR had strongly defended the judges in a memorandum distributed to the press, criticizing the false allegations reported by this article in Diplomatie judiciaire. She maintained that the journalist had misinterpreted the scene, and that the laughter in the courtroom had been caused by the public's reaction to the questions by the defence counsel. Whatever the case, the error of the Tribunal and the prosecution was to have held a public hearing on this delicate and taboo issue. See the press release of December 14, 2001, ICTR/INFO-9-3-07.EN. Available on the ICTR Web site, http://www.ictr.org/.

[107] This is a report by the UN OIOS, which exposed the matter: "Report on possible fee-splitting between detainees and defence counsel at the ICTR and ICTY," General Assembly, UN Off. Doc., A/55/759, Annex 2 of February 1, 2001.

[108] See Hirondelle, "Rwanda reacts to ICTR Prosecutor's report to UN Security Council" (August 9, 2002), available on the Web site http://www.Hirondelle.org/ (access date: October 15, 2002). See the Reply of the Rwandan Government to the Prosecutor's Report of the letter to the President of the Security Council from the President of the ICTR, Security Council, Off. Doc. S/2002/842, July 26, 2002 appended to the IFHR report, supra Note 43.

[109] This decision is even more of an impediment in view of the essential role of the women's NGOs with the potential female witnesses. See the report by Martine Schotsmans of Avocats Sans Frontières, who affirms the genocide greatly influenced the relationships between people, and survivors feel they are best understood by other survivors, understood little or not at all by the repatriates, and rejected by the detainees' families. See the summary of the report "Recherche sur la perception par les rescapés de leur situation actuelle," ASF (Avocats sans Frontières), December 2001, available at http://www.asf.be/ (access date: November 15, 2002).

[110] See § 34, 41 and 87 of the Seventh Annual Report of the ICTR (2001-2002), supra Note 40. Also see the Hirondelle sources on this report.

[111] See § 86 and 87 of the Seventh Annual Report of the ICTR (2001-2002), Ibid.

[112] Concerning the Niyitegeka and Pauline Nyiramasuhuko cases, President Pillay referred the matter to the Security Council by letter of July 26, 2002, addressed to the President of the Security Council, Doc Off. S/2002/847.

[113] In particular, consideration is being given to the possibility for the Tribunal to judge Rwandan citizens (members of the RPA, or Rwandan Patriotic Army) who committed serious violations of humanitarian law within Rwanda and in the territory of its neighbours (Congo and Zaire) under the authority of certain RPF members now in power. See Jacques Nizeyimana's article, supra Note 62 and Carla del Ponte's press conference of December 6, 2001 on her intention to prosecute RPF members, available on the ICTR Web site, http://www.ictr.org/ (access date: October 30, 2002). She reiterated this statement in a press conference on April 4, 2002 and noted the lack of cooperation by President Kagame. The text of the press conference is not available on the ICTR Web site. See the press conference of the Rwandan Prosecutor Gerald Gahima on July 26, 2002 at the United Nations, summary available on the Diplomatie judiciaire Web site, .com (access date: September 16, 2002).

[114] See the Hirondelle Web site for the incessant procrastination of the Registry which has proposed, negotiated and then cancelled the establishment of a joint commission of inquiry on the mistreatment of witnesses, the Rwandan Government's accusations directed against the Registry and against the legal defence teams, the NGOs' evolving and changing demands, the defence counsel's criticisms of the Rwandan representative, the Registry and the prosecution, the referral to the Security Council by the President of the ICTR regarding Rwanda's failure to cooperate, and the Tribunal's intention to hold trials in Kigali, supported in this by the local NGOs, which is vigorously contested by the defence counsel.

[115] Eventually, because the Tribunal seems to have the support of the African countries. See Hirondelle, "African Countries urged to support Rwandan Tribunal," May 24, 2002), available on the Web site http://www.Hirondelle.org/ (access date: October 15, 2002).

[116] Some cite the political horse-trading going on between the Kagame Government and the United Nations (under the influence of the USA). The abandonment of prosecutions against RPF members would be the price to pay for the execution of the Lusaka Agreement on the repatriation of Rwandans in Congo. See the press release of AJIIR (Action pour une Justice Internationale Impartiale), October 12, 2002, available on the Web site / (access date: November 15, 2002). The Special Investigation Team for these cases would have been dismantled, and the Canadian head of this team would have been transferred to Sierra Leone. It is totally impossible to verify the truth of these allegations.

[117] The President of the ICTR advanced this aspect in her address to the UN General Assembly: "At present, trials are proceeding, but it is pertinent to note that in five trials, the Defence is presenting its case, and most of the defence witnesses come from outside Rwanda. Of the 122 defence witnesses that came at the ICTR this year, eight came from Rwanda. The issue of travel of witnesses from Rwanda must be resolved for trial hearing prosecution testimony to resume on time" (our emphasis). See Navanethem Pillay's October 29, 2002 report to the UN Security Council, available on the ICTR Web site, http://www.ictr.org/.

[118] See the Web site of the Government of Rwanda, genocide and justice section, (access date: October 30, 2002).

[119] For a study of the judicial issues encountered by the Rwandan jurisdictions, see the report of the Documentation and Information Centre on the Genocide Trials (LIPRODHOR), supra Note 41. Also see the report of the ICG (International Crisis Group), "Justice in Question," April 7, 1999, available on the Web site / (access date: June 2000).

[120] On the traditional Gacaca concept, see the article by Fr. Xavier Gasimba, "Gacaca: le point de vue des instances de base" (2000) 15-16 Le verdict, p. 31. For a critique of the Gacaca, see the complete dossier published by this issue of Verdict (2000) 15-16.

[121] The Gacaca jurisdictions are mandated to judge Category 3 and 4 crimes, persons accused for crimes against physical integrity (deliberate injury and mistreatment) not causing death, and persons accused for crimes against property. Persons who committed murders, crimes that resulted in death, acts of genocide, crimes against humanity or acts of sexual violence fall under the jurisdiction of the judicial tribunals. See the report of Documentation and Information Centre on the Genocide Trials, LIPRODHOR, supra Note 41.

[122] "According to some analysts, the rationale of Gacaca was not only to punish the guilty. It also had the duty to reconcile the parties in order to foster lasting social peace." See the LIPRODHOR report, "Les Juridictions Gacaca au Rwanda, Résultats de la recherche sur les attitudes et opinions de la population rwandaise," Kigali, 2000, p. 13.

[123] Such is the case of Geraldine Umugwaneza, former President of AVEGA, and of Patricie Mukanyundo, formerly of LIPRODHOR. They were both appointed to the Sixth Chamber of the Supreme Court, which deals with the Gacaca jurisdictions. The IFHR report discusses the links between certain associations and the Rwandan Government: Joseph Nsengimana, representative of ASRG-MPORE, is a former Minister and a presidential adviser. Antoine Mugesera, President of IBUKA, is an executive member of the RPF. See the IFHR report, supra Note 43 on p. 15. These are the NGOs that conducted a major media campaign against the ICTR. See the last issues of Ubutabera on the Diplomatie judiciaire Web site: .com/.

[124] In particular, see § 25, 26, 27 of the report of Special Representative Michel Moussalli on the human rights situation in Rwanda: "Question of the Violation of Human Rights and Fundamental Freedoms in any Part of the World. Report on the Situation of Human Rights in Rwanda." Off. Doc. Commission on Human Rights, E/CN.4/2001/45/Add.1, 21 March 2001. See the International Crisis Group's panegyric report on Rwandan justice, "Justice in Question," supra Note 119. For a more moderate view, see the LIPRODHOR report, "Regards prospectifs sur les procès de génocide au Rwanda (1996-1999)," October 1999, and the report of the Documentation and Information Centre on the Genocide Trials (LIPRODHOR) supra Note 41.

[125] On this point, see the response of Registrar Adama Dieng following the publication of the IGC report on the ICTR, ICTR/INFO-9-3-01.EN of June 11, 2001.

[126] To their credit, it must be noted that the Tribunal, because of its ad hoc nature, cannot and will not be able to judge the 120,000 participants in the genocide, and its chosen mission is to judge the criminals who are most symbolic because of the scope of their responsibility in the massacres committed and their organization, planning, supervision and perpetration. See the Carla del Ponte's address to the Security Council on November 27, 2001, available on the ICTR Web site, http://www.ictr.org/. The ICTR's work therefore does not concern their daily lives. This does not mean that it is unimportant, but that it is subsidiary to the reality of the people in the streets and in the hills. As stated by Noël Twagiramungu, Executive Secretary of the League for the Promotion and Defence of Human Rights (LIPRODHOR) in the African Great Lakes Region, "On the whole, Rwandans attach very little interest to the ICTR," in the IGC report, supra Note 32, on p. 25. According to the IFHR report, the Rwandan NGOs acknowledge that they have had little interest up until now in the ICTR's activities, supra Note 43 on p. 19. We do not know what has become of the radio project on the ICTR, for which the NGO Haguruka had received subsidies from the ICTR Programme. See the IGC report, supra Note 32 on p. 31, footnote on page 76

[127] See the study documents submitted by the Rwandan NGOs at the Coalition's Annual Meeting in October 2001.

[128] See the report by Pro-femmes' Twese Hamwe, "Plan stratégique en matière de genre et gestion des conflits 2002-2004," Kigali (Rwanda), March 2001, available on the Web site http://www.international-alert.org (access date: November 20, 2002); also see the report by Martine Schotsmans, "Recherche sur la perception par les rescapés de leur situation actuelle," supra Note 109. One of the proposals made by Schotsmans would involve testimony before a restricted committee or before an intermediary who would relate the testimony before the Gacaca.

[129] See the Hirondelle article of October 1, 2002 on the Gacaca in Rwanda. This study shows a growing lack of interest in these test jurisdictions and the systematic rejection of the crimes committed by the RPF. Available on the Web site http://www.Hirondelle.org/ (access date: November 15, 2002). Also see the Le Monde article by Jean-Philippe Rémy on these jurisdictions, "Le Rwanda essaie d'inventer une nouvelle justice du genocide" (June 22, 2002) Le Monde, available on the Web site http://www.lemonde.fr/, in which it is mentioned that a woman accused a Gacaca judge of rape and enforced detention.

[130] See the report by Martine Schotsmans and Le Cocq, "Le droit à la réparation des victimes de violences sexuelles pendant le génocide: analyse de l'état actuel - obstacles-suggestions de solutions," ASF (Avocats sans Frontières), March 2000. For example, of 1051 people charged in 1999, 49 were prosecuted for rape or sexual torture, and of these 49 people prosecuted, only nine were convicted (one for rape and the others for torture).

[131] See the article by Martine Schotsmans, supra Note 41.

[132] See the report by Pro-femmes' Twese Hamwe, supra Note 128, on p. 7.

[133] We will recall, among other matters, the Jean-Bosco Barayagwiza case in 1999. The Appeal Tribunal had overturned all convictions against him because of repeated violations of his rights during the pre-trial phase. Following this decision, Rwanda had announced its decision to suspend its cooperation with the ICTR. For a historical look at this issue, see the IGC report on the ICTR, supra Note 32.

[134] It is true that this only lasted fifteen days, but it shows the ability of the Government of Rwanda and the Rwandan NGOs to block the judicial process if they wish. The information regarding the duration comes from N. Pillay's address to the UN Security Council, supra Note 117.

[135] Indeed, while the accusatory model inspired by the Common Law system makes the witness the cornerstone of the prosecution's case, it maintains the victim in the role of a descriptive and passive witness, subject to elaborate cross-examination by the defence with the objective of destroying the witness's credibility. This relegation to the status of victim-to the detriment of that of proactive survivor capable of triggering prosecution and to whom the Prosecutor will be accountable-hinders the resilience process necessary for victims of sexual violence. Beyond speech and words, the victim must rebuild herself, rebuild her body image and her sexual and social image. This self-reconstruction requires action. This may be one of the reasons explaining the dismay and disappointment of victim witnesses.

[136] According to § 101 of the Sixth Annual Report of the ICTR, Carla del Ponte explored with certain NGOs the possibility of their seeking to be heard by the Trial Chambers on behalf of the victims, supra Note 25. See Article 68 of the Rules of Procedure and Evidence of the ICC on this issue.

[137] Commitment made by the prosecution in its response on the application to file the amicus curiae brief filed by the NGO Coalition for Women's Human Rights in Armed Conflict Situations in the Cyangugu case, which was repeated by the judges of Appeal Trial II to justify, among other things, the refusal to allow the filing of the amicus curiae brief; see supra Note 52, in § 20.

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