Dear Carla Del Ponte:
Thank you for meeting with our delegation in Arusha, Tanzania in February 2003, to discuss justice for Rwandan rape victims at the International Criminal Tribunal for Rwanda (ICTR). We greatly appreciated your effort to make time to meet with us despite your extremely busy schedule in Arusha.
We are writing to reiterate the issues raised at the meeting and to express our grave concern that sexual violence investigations and prosecutions are faltering under your stewardship. We believe that even at this late date in the ICTR's history, justice for the women who endured the sexual assaults that characterized the genocide in Rwanda remains unattainable largely because the Office of the Prosecutor (OTP) continues to fail to competently investigate and indict gender crimes.
As your term comes to an end, we believe that your four-year record as ICTR prosecutor shows no concrete commitment to effectively developing evidence to bring such charges, despite the longstanding and overwhelming proof of sexual violence during the 1994 Rwandan genocide. We believe that the failure to implement effective measures that would have enhanced to date, rather than undermined the serious investigation and prosecution of gender crimes, reflects a lack of political will to treat these crimes with the seriousness of other genocide-related crimes.
As you well know, during the Rwandan genocide, thousands of women were individually raped, gang-raped, raped with objects such as sharpened sticks or gun barrels, held in sexual slavery or sexually mutilated. Military and political leaders at the national and local levels, as well as heads of militias, encouraged or permitted killings and sexual violence to further their genocidal goals. They therefore bear responsibility for these abuses under international law.
While the ICTR is feted for its 1998 landmark judgment convicting Jean-Paul Akayesu for rape as a genocide crime and a war crime, we believe that the widespread sexual violence cannot be reflected only in a handful of cases, but must be reflected comprehensively in the prosecution strategy where appropriate. If the scale and brutality of the sexual violence in Rwanda is not reflected in the judgments of the ICTR, it will reinforce the historic impunity that has always characterized the pervasive sexual violence that accompanies armed conflict.
While we are heartened that over half the existing indictments charge rape, we note a number of disturbing developments during your tenure that are likely to exclude or jeopardize rape indictments, and which will ultimately result in a denial of justice to Rwandan rape victims. These include:
- A decline in the number of new indictments that contain sexual violence charges
- Since 2001, there has been a notable reduction in the number of indictments for sexual violence crimes. Given the widespread sexual violence, we believe that the absence of sexual violence indictments is due not to an absence of the occurrence of sexual violence, but rather to a lack of political will to competently investigate and bring the charges.
- The absence of sexual violence charges in several key cases
- It is important that sexual violence charges are pursued comprehensively and included particularly at the highest levels of responsibility. We are therefore concerned by a number of cases moving forward without sexual violence charges, even where the OTP has mentioned sexual violence in the indictment or where national nongovernmental organizations have documented responsibility for sexual assault. For example, we believe greater efforts should be made to charge sexual violence in the following cases among others: Kanyabashi, Ndayambaje, Ntezirayayo, Nsabimana, and Renzaho.
We remain particularly concerned about the Cyangugu case where the OTP possesses strong evidence of sexual violence and has publicly promised to bring rape charges, yet has still not done so. See Prosecutor's Response to Application for Leave to File an Amicus Curae brief, May 8, 2001: "The Prosecutor advises that as soon as possible, she intends to file new indictments against accused Emmanuel Bagambiki and Samuel Imanishimwe containing rape charges." Almost two years later, you have not fulfilled your promise and the case is poised to close. Rape victims whom we interviewed in Cyangugu in January 2003 feel betrayed by your disregard of them. After making them come forward to speak about their rapes and promising them that justice would be done, your inaction amounts to a blatant denial of justice.
- A lack of commitment to adequately developing the evidence
- in cases where rape charges were previously brought, making it likely that the OTP will have to either drop some of the existing rape charges where additional evidence is required, or move forward without the requisite standard of proof and risk acquittals of rape charges. Unless steps are taken to invigorate your Investigations department, it is likely that some of your cases will not prevail in court.
- The absence of an effective and long-term prosecution strategy
- that seeks to ensure that not only the scale of the sexual violence is represented in the OTP cases, but also a broad characterization of sexual violence crimes that acknowledges the range of sexual violence suffered by Rwandan women, for example, prosecution of sexual slavery (collective and individual) or rape as a form of torture.
- Diminishing the capacity of the investigations unit to seek sexual violence evidence.
- One of the major stumbling blocks to effective prosecution of sexual violence at the OTP is the lack of attention to this issue by the Investigations division. In particular, we believe that your disbanding of the Sexual Assault Team in the Investigations division of OTP in 2000 has corresponded to a significant decrease in attention to the collection of sexual violence evidence. The leadership in the investigations unit appears to have interpreted your disbanding of this team as a signal to diminish attention to this issue. We are also concerned that investigators continue to receive no training on interviewing methodology for rape victims, and the majority of the investigators are male.
- Lack of informed consent by witnesses
- Our conversations with rape victims who have testified on behalf of the OTP indicate that that they are being misinformed by the OTP Witness Management Team when they are promised anonymity and confidentiality when they testify. Rape victims are not notified by the OTP that the defense counsel is provided with their names in accordance with the rules. In several cases, the identity of rape victims has been compromised with serious consequences for these women. In several cases, women witnesses have been threatened following defence disclosure of their names, and in one case, a woman's fiancée left her after her ICTR testimony was publicized in Rwanda due to the stigma of rape. Women witnesses are very angry and bitter at the betrayal of these false promises made to them by OTP. It is incumbent on OTP to ensure that women witnesses make an informed decision on whether to testify knowing the potential risks, especially due to the stigma attached to rape.
- Denial of access to trauma counselling
- Although the OTP Witness Management Team includes a trauma counsellor for potential witnesses, it is virtually impossible for rape victims to access the counsellor. Access to the trauma counsellor can only occur at the request of an investigator, and at this time the trauma counsellor appears to be utilized only to convince undecided witnesses to testify on behalf of OTP. Many of these rape victims have lived through unspeakable horrors and are being asked to relive them when they testify. They are also facing extenuating problems that have exacerbated the suffering they encountered, including contraction of the AIDS virus. Providing unrestricted access to a trauma counsellor could greatly benefit these women.
We strongly urge you to take immediate steps to fully and fairly investigate and prosecute sexual violence crimes, including in ongoing cases. The issue of violence against women must be treated with the same gravity as other crimes within your jurisdiction. Rape, sexual slavery, torture, and sexual mutilation should be prosecuted, where appropriate, as crimes against humanity, genocide crimes, or war crimes. Further investigations, where need be, should be conducted by tribunal investigators to collect information on sexual violence previously overlooked. We urge you to step up your efforts to integrate a gender perspective into investigations and to reinstate the Sexual Assault Team with competent and experienced investigators. We urge you to develop procedures that ensure that women witnesses are systematically informed of the potential risks to their safety before they agree to testify at the ICTR so that informed consent is obtained. Sexual abuse victims should be given access to the trauma counsellor as a matter of course in a sustained manner with follow-up.
We are gravely concerned that unless you take immediate and effective steps to rectify this situation that Rwandan women will be denied justice by this international tribunal. Not only will Rwandan women not receive the justice they deserve, but if there are a string of acquittals for rape (as was the case in Musema), the record of this tribunal in history will not only ignore the crimes against women, but will actually deny that these crimes occurred. That would indeed be a serious miscarriage of justice.
We would also urge you to take a look at the early initiatives undertaken by the U.N. Special Court for Sierra Leone. Despite significantly less means at his disposal, political will on the part of Prosecutor David Crane has resulted in a comprehensive strategy to prosecute an array of sexual violence crimes. Under his watch, some twenty percent of his investigations team is dedicated to sexual assault investigations and is staffed with competent and experienced female investigators. In its short time in existence, the Special Court for Sierra Leone has already surpassed the ICTR in its likelihood of delivering justice to Sierra Leonean women.
We remain committed to assisting your office in any manner that you believe would further this issue, and look forward to continuing the dialogue.
Coordinator, Women's Rights
Rights & Democracy
On behalf of the Coalition
International Criminal Tribunal for Rwanda
http://www.ictr.org (Official Website)