October 17, 1997
Justice Louise Arbour
Office of the Prosecutor
International Criminal Tribunal for the Former Yugoslavia and International
Criminal Tribunal for Rwanda
Churchillplein 1, 2517 JW The Hague
P.O. Box 13888
2501 EW The Hague
Dear Justice Arbour,
Re: International Criminal Tribunal for Rwanda
We are writing on behalf of members of the Coalition for Women's Human Rights in Conflict Situations, many of whom participated in the amicus curiae brief submitted in May in the Akayesu case. Members of the Coalition located in North America met in Montreal in September with Alice Karekezi, the ICTR Monitor in Rwanda sponsored by the International Center for Human Rights and Democratic Development (ICHRDD), to discuss issues related to the ICTR and crimes against women in Rwanda.
We are, of course, heartened by the decision of the OTP in June to revise the Akayesu indictment to include charges of sexual violence, as well as your recent announcement that the OTP would review all existing and future indictments to determine if gender crimes should be charged. We appreciate very much your responsiveness to the concerns of the local as well as international women's human rights communities. We are hopeful that, with Mr. Bernard Muna as the new Deputy Prosecutor and Ms. Francoise Ngendahayo as the Advisor to the Registrar on Gender Issues and Assistance to Witnesses, this is the beginning of a new approach to thoroughly integrating the question of violence against women in the work of the OTP in Rwanda. In writing today, we also take into account your meeting with some of our New York-based members when you were speaking at the Hofstra Law School forum several weeks ago. The participants were very appreciative of the opportunity to meet with you and viewed the meeting as very fruitful in sharing perspectives and laying a foundation for further dialogue.
As promised at that meeting, this letter and the attached report provide further documentation of our concerns and suggestions for improving the work of the ICTR in three areas:
The attached Report, Witness Protection, Gender and the ICTR was prepared in the course of a human rights mission carried out by Connie Walsh in Rwanda during June and July l997. It reflects information from public sources as well as interviews conducted by Ms. Walsh with Rwandese women's groups, individual women and members of the ICTR staff. This report, parts of which were discussed with you in New York, highlights the danger to witnesses and genocide survivors generally, as well as the perceptions and experiences of women who have had contact with the ICTR. It is intended to supplement information already contained in the reports of Human Rights Watch and African Rights. We regret that we could not have this ready for your October 4 meeting in Arusha, but trust that many of our concerns were on the table in that meeting and that you are already moving forward to address them.
In addressing these three issues, we want to begin with an overarching one - the need to build trust and repair the relationship between the ICTR and the Rwandese women's community. This community represents a tremendous positive force for justice and a potential resource for the ICTR. The Rwandese women's community has a deep stake in the issues dealt with by the OTP: justice at the ICTR must include Rwandese women if they are to receive the recognition that is part of healing and to fully participate in the reconstruction of their society.
Rwandese women's associations and individual women who have sought to assist and, in fact, have assisted the Tribunal have, however, voiced concern that they have been treated disrespectfully; that their contact with the ICTR is minimal at best and lacks follow-up; that they have no regular or accurate information about Tribunal operations; and that it is virtually impossible to contact or visit the OTP in Kigali (see Report paras. 15-27). It is essential for the ICTR, and especially the OTP, to repair this rift and build a relationship of transparency, consistency and trust with the women's associations of Rwanda as well as with the individual women who assist the OTP. This is critical to the Tribunal's ability to undertake effective and respectful investigations and prosecution of crimes of sexual violence, as well as to develop effective means of witness protection.
In this regard, the ICHRDD has sought to facilitate the relationship between the ICTR and the women's community by supporting the work of Alice Karekezi, an attorney, law professor and activist in Rwanda, as a monitor and facilitator of the integration of gender in the ICTR's work. As such, she is a potential resource to the ICTR and link between the women's organizations on the ground and the Tribunal staff. Yet, to date, her presence and capacity have been largely ignored by the ICTR. At the same time, she cannot in good conscience encourage women to participate with the Tribunal unless certain protections, policies and practices are implemented which address the alienation of the women's community as well as the following concerns. It is our hope, with the ongoing reorientation and the hiring of new personnel, that the Tribunal will recognize Prof. Karekezi's potentially invaluable role in this process.
Given the upcoming Akayesu trial, witness protection issues are of paramount concern. As you are keenly aware, and as Ms. Walsh's report further details at paras. 1-14, witnesses have been threatened, and in some cases killed along with others who were with them. The danger to future witnesses in the Akayesu trial is underscored by the general threat to genocide survivors from Taba. The case of "Mrs. Arusha" in the Report (paras. 5-8), while reflecting the efforts of the Tribunal to provide post-trial protection, also illustrates the inadequacy of these efforts. We believe that the following are appropriate measures to be taken under the circumstances:
The information summarized in the Report concerning the investigative process in the ICTR/OTP, as well as that previously documented, indicates that there are serious and continuing problems in need of attention. We recognize from the conversation at Hofstra that you are seeking to remedy these problems and recommend the following:
As indicated above, and as we discussed briefly in our Hofstra meeting, we remain concerned that the decision to characterize rape and sexual violence in the amended Akayesu indictment as "inhuman acts" under article 3(i) and "outrages upon personal dignity" under article 4(e) does not fairly reflect the severity and multi-faceted character of the sexual violence inflicted upon women. At our meeting, we were pleased to hear that you accept the basic premise that rape and other forms of sexual violence should be charged both as crimes in themselves (where permitted by the Statute) and as forms of other atrocious violence within the competence of the Tribunal. While we strongly endorse this approach (and, as discussed, are working to have it properly articulated in the Statute of the International Criminal Court), the amended Akayesu indictment falls short of this goal. Although we respect the need to exercise prosecutorial discretion in this regard and cannot know the details that influence that process, we discern a number of possible trends that, in our view, run counter to the progressive development in the law which was reflected in the ICTY's Foca (Gagovic) and Celebici (Delalic) indictments particularly.
Because we do not have access to all of the factual information available to the OTP, we must rely primarily on the testimony already given at trial and the bare facts pled in the new indictment. We take into account facts documented by human rights groups as an indication of what might be available, recognizing that the prosecutors are not necessarily able to duplicate this at trial. We also take into account the potential of using expert witnesses at trial as part of the process of educating the bench and proving the case.
On this basis, we believe that it would have been appropriate for the OTP to charge rape and other sexual violence under article 3(f) as torture under crimes against humanity; under article 4(a) as violence to life, health and physical or mental well-being of persons, including torture and mutilation (common art. 3); and under article 2 as acts of genocide. We recognize, at the same time, that crimes such as forcing women to parade naked in the streets could qualify, depending on the circumstances, as any of these more severe crimes or, in the alternative, as inhuman or degrading treatment. It is also not clear what is meant by sexual "service" as opposed to sexual "violence" in the indictment.
The following outlines our concerns in this regard:
While the issue of understanding rape as torture was only first advanced in 1986 by the Special Rapporteur on Torture, it is fully accepted as such today. In our view, this evolution warrants a presumption in favor of charging rape as torture. Taking as the standard the three substantive elements of torture delineated in article 1 of the Convention Against Torture (CAT) - severity; intent; and purpose (1) - we believe that rape alone constitutes torture. (2) The fact that Akayesu is charged with superior as opposed to personal responsibility does not change the characterization of the underlying crime.
First, the severity of rape and other similar forms of sexual violence have been consistently recognized and, indeed, emphasized in recent human rights decisions. (3) We note particularly the recent ruling of the European Court on Human Rights in Aydin v. Turkey. (4) There the Court detailed the torture of the petitioner, which included one act of rape. In concluding that the petitioner was subjected to torture (and not simply inhuman treatment), the Court emphasized the particularly cruel character of rape as a form of torture. (5) The Inter-American Commission on Human Rights likewise has emphasized the severe impact which rape and sexual violence have on victims by stating that "it is clear that in the experience of torture victims, rape and sexual abuse are forms of torture which produce some of the most severe and long-lasting traumatic effects." (6)
Second, the travaux preparatoires of the CAT makes clear that specific intent to torture is not necessary. The U.S. proposed requiring specific intent to torture and this was rejected. (7) The voluntary performance of an act with foreseeable consequences amounting to torture meets the intent requirement. Thus, it does not matter that the perpetrator or his superior does not consider rape to be a form of torture. It is the objective character of the acts and suffering that they cause and are likely to cause that determines whether the crime is characterized as torture.
Third, the sexual violence inflicted has been recognized to satisfy the criteria of purpose set forth in the CAT. Rape and sexual violence are often used as a means to punish, intimidate or coerce the victim or a third person. (8)
Rape and sexual violence are also forms of gender discrimination against women. In response to a request by the Commission on Human Rights "to examine questions concerning torture directed disproportionately or primarily against women and conditions conducive to such torture, and to make appropriate recommendations concerning prevention of gender-specific forms of torture" (9), the Special Rapporteur on Torture recognized the disparate impact rape and sexual violence have on women, stating that "[i]n some instances, the gender of an individual constituted at least part of the very motive for the torture itself". (10) The Inter-American Commission on Human Rights has also recognized rape and the threat of rape as "a brutal expression of discrimination" against women which qualifies as torture." (11)
Many reports by human rights investigators and journalists indicate that Hutu men raped Tutsi women and Hutu women sympathetic to Tutsi to punish them for their gender, their ethnicity or their sympathy to the ethnic "enemy". Rape and sexual violence were also a weapon of intimidation and terror. The fact that the rape of Tutsi women appears, in some cases, to have been claimed by Hutu men as the prize of war does not exempt it from the category of torture. Taking women as booty reduces women to property, which is a quintessential expression of gender discrimination. The rape of women during the genocide in Rwanda was thus double discrimination: they were raped for their ethnicity (or ethnic sympathies) and for their gender.
Aside from issues of severity, intent and purpose, we are concerned that the OTP may be distinguishing cases where the defendant is charged with personally participating in the act from those involving command responsibility. However, as with other forms of violence constituting torture, a superior is responsible so long as he knew or should have known that rape and other sexual violence was being committed and took no steps to stop it. The commander's intent is not at issue, nor is he required to stop the unlawful practice altogether. One doesn't re-examine the crime or violation through the eyes of the commander.
While we are unable to judge the scope of the testimony which will be used in proving the charges against Akayesu, we can see no basis for differentiating the severity of sexual violence charged as torture in the ICTY indictments from the charges of sexual violence brought against Akayesu.
We are also concerned about your statement at our Hofstra meeting that rape accompanied by mutilation makes a clear case of torture. As we have discussed, rape is itself a form of torture. It may also constitute the crime of mutilation under article 4(a) of the ICTR Statute where rape results in the destruction of a woman's reproductive capacity or ability to engage in sexual relations. These are terrible harms that should be recognized as mutilation, even though they are often internal and, therefore, do not mark the physical appearance or visible body. In some cases the intent to mutilate through rape is apparent; in others it is a foreseeable consequence of the rape.
In addition, acts of mutilation apart from rape are chargeable as separate offences under article 4(a), as well as chargeable as torture. It appears from Human Rights Watch's report, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath, that, in Rwanda, rape was often accompanied by mutilation of sexual organs or other bodyparts, such as the cutting off of breasts and disfigurement of the vagina or pelvic area. (12) Enforcing the crime of mutilation, beyond the obvious cases, thus requires careful and sensitive inquiry with women of the impact of sexual violence. This must obviously be done by women who are appropriately trained, so as not to revictimize the women.
Just as sexual violence was previously unrecognized as a form of torture, it has not been appropriately recognized as an aspect of genocide. While our research is still in progress on this point, it suggests several important directions for the Tribunal. First, under the definition of genocide in article 2 of the ICTR Statute, rape and sexual violence ought to be viewed as acts of genocide whether or not they specifically intend the death of the victim. In our view, when the genocidal context, demonstrating the intent to destroy, in whole or in part, a protected group is established, then the acts listed in (a) through (e), committed as an integral part of that assault, constitute genocide. In Rwanda, the reported facts indicate that rape and sexual violence often preceded killing and, as with other forms of torture, were intended to amplify suffering before death. For those left alive, such violence clearly caused serious bodily and mental harm to members of the group. Depending upon the facts available, rape and sexual violence could constitute an act within the purview of (c) or (d) based on the physical consequences for the woman's (or man's) health and reproductive capacity as well as on the social-psychological potential for marginalization and despair.
Second, in investigating and documenting genocide under article 2 of the ICTR Statute, it is critically important to examine the character and impact of the propaganda on Tutsi women. The second-hand accounts available to us suggest that the general propaganda incited Hutu men to rape and, in many cases, kill Tutsi women through linking beauty and inaccessibility with treachery. (13)
You have indicated the intent of the OTP to charge rape and sexual violence as forms of genocide. We strongly urge you to do this quickly and effectively. As long as rape is separated from genocide, people - including your own staff - will continue to treat it as less important than killing and therefore justifiably ignored. In fact, the testimonies of women of which we are aware tell a different story; that those who survive the genocide suffer continuously and ineffably from the memory and impact of a combination of atrocities - from having witnessed the genocide itself, from having lost family and members of the community, and from being raped and otherwise tortured or mutilated and left to live. It is very important to justice and the healing process that the ICTR recognize sexual violence as genocidal acts.
Sexual and other gender violence are also chargeable as enslavement under article 3(iii) of the Statute, given that they are part of an overall attack that meets the criteria of crimes against humanity. For example, the common practice during the genocide of taking Tutsi women as "temporary wives" collectively or individually is a slavery-like practice. If this is what is meant by reference to "sexual services" in the Akayesu indictment (para. 12A), it could be charged as enslavement. Forcing, under threat of death, women to be temporary wives providing both sexual and domestic services is, in the terms of article 1(1) of the 1926 Slavery Convention, (14) placing the individual women in "the status or condition of a person over whom any or all of the powers attaching to the right to ownership are exercised." It also qualifies as a condition of "serfdom" under article 1(b) of the Supplementary Convention on the Abolition of Slavery. (15) It does not matter whether the status was initiated by agreement and, in Rwanda, any "agreement" or acquiescence to such temporary marriage was given on fear of death. The UN Special Rapporteur on Violence Against Women, Its Causes and Consequences has recognized that the "comfort women" who were forced into prostitution by the Japanese Army during World War II were subjected to sexual slavery. While this was a highly "industrialized" form of sexual slavery, the seemingly less organized nature of the practice in Rwanda does not change its essential character as a slave-like practice. (16)
There is no question that the challenges faced by the ICTR, Rwandese women's groups and individuals, and the international community to bring about justice and healing in Rwanda are formidable and urgent. The Coalition applauds the recent initiatives announced by the OTP with respect to sexual violence against women during the genocide, at the same time as we will continue to urge you to press forward in this historic endeavor.
Recognizing the significance of the task and the importance of NGO input, the Coalition will continue to assist the process in a number of ways: first, by continuing the mandate of Alice Karekezi; second, by finding resources to hire a person who would act as an independent advocate for the witnesses who testify at the ICTR to crimes of sexual violence; and third, by receiving and circulating your job postings in professional and women's human rights circles and, when appropriate, by lobbying our respective governments regarding staff secondments and other support to the ICTR. Finally, we will continue to carry out high quality legal research on issues related to justice for women in Rwanda and remain available to participate in, or help identify, appropriate participants for your gender integration and training programs.
We appreciate your attention to the issues we have raised and look forward to your response.
On behalf of the NGO Coalition on Women's Human Rights in Conflict Situations:
Pro-Femmes (Kigali, Rwanda): AFCF, AFER, AGR, AHO UMWAGA UTARI, AMALIZA, ARFEM, ARBEF, ARTC-F, ARDS, ASOFERWA, AVEGA-AGAHOZO, BENIMPUHWE, BENISHYAKA, CARITAS-UMUHOZA, CCOAIB, CLUB MAMANS SPORTIVES, DUKANGUKE, DUTERIMBERE, FONDATION TUMURERE, GIRANEZA, GIRIBAMBE, HAGURUKA, ICYUZUZO, ISANGANO-OPEC, JOC-F, RESEAU DES FEMMES OEUVRANT POUR LE DEVELOPPEMENT RURAL, RWANDA RW'EJO, RWHO, SERUKA, SOLIDAIRES BENURUGWIRO, SOS RAMIRA, SWA-IHUMURE, UMUSHUMBA MWIZA, URUMULI RW'URUKUNDO, URUSARO
Church World Services/Hope Polyclinic (Kigali, Rwanda)
UN Secretary-General Kofi Annan
Angela King (UN Division for the Advancement of Women)
ICTR: Deputy Prosecutor Bernard Muna; President Laity Kama; Registrar Agwu Ukiwe Okali; Advisor to the Registrar on Gender Issues Francoise Ngendahayo
ICTY: Patricia Sellers
UN Special Rapporteur on Violence against Women, Radhika Coomaraswamy
2. Because we are concerned here with the crime of torture committed in context of war and governed by humanitarian law, the CAT's criteria of state common instigation or acquiescence, applicable to holding a state responsible under human rights does not apply. The substantive definition of torture contained in the CAT has been recognized as applicable under humanitarian law. See International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, article 75(a)(ii), at 873 (citing the General Assembly's 1975 Declaration on Torture which expanded impermissible purposes by adding punishment and intimidation and noting the General Assembly's 1984 vote adopting the Convention Against Torture, which was described at that time as "without binding force of law, [but] nevertheless hav[ing] a real moral value."). Back
3. The current Special Rapporteur on Torture, Mr. Nigel Rodley, followed the lead of the former Special Rapporteur on Torture, Mr. Peter Kooijmans. Quoting from Mr.Kooijman's 1992 report, Mr. Rodley stated that "since it was clear that rape or other forms of sexual assault against women in detention were a particularly ignominious violation of the inherent dignity and the right to physical integrity of the human being, they accordingly constituted an act of torture.'" E/CN.4/1995/34, para. 16, quoting E/CN/1992/SR.21, para. 35. In classifying rape as torture, the Special Rapporteur includes rape with beatings, electric shock, sleep and food deprivation, and death threats, with no distinction being made between these other forms of torture and rape. E/CN.4/1997/7 10 January 1997. The Special Rapporteur on Violence Against Women stated that "[r]ape is often used as an instrument of torture" E/CN.4/1995/42, 22 November 1994, paras. 51, 173-174. Back
5. Ibid. At para. 83 the Court stated: "Rape of a detainee by an official of the State must be considered to be an especially grave and abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and weakened resistance of his victim. Furthermore, rape leaves deep psychological scars on the victim which do not respond to the passage of time as quickly as other forms of physical and mental violence. The applicant also experienced the acute physical pain of forced penetration, which must have left her feeling debased and violated both physically and emotionally." The Court therefore concludes in para. 86 that "... the accumulation of acts of physical and mental violence inflicted on the applicant and the especially cruel act of rape to which she was subjected amounted to torture under the Convention. Indeed the Court would have reached this conclusion on either of these grounds taken separately." Back
7. J. Herman Burgers and Hans Danelius, The United Nations Convention Against Torture - A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 41 (1988). Back
8. The Inter-American Commission on Human Rights recognized rape and sexual violence against women in Haiti as forms of "reprisal, intimidation, terror, and degradation of women", (OEA/Ser.L.V.II.88, Doc. 10 rev., February 9, 1995, para. 128), and considers that "rape represents not only inhumane treatment that infringes upon physical and moral integrity under Article 4 of the [Inter-American] Convention [to Prevent and Punish Torture], but also a form of torture in the sense of Article 5(2) of that instrument" (para. 133, OEA/Ser.L.V.II.88). Back
15. Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and practices Similar to Slavery, 226 UNTS 3, entered into force April 30, 1957. In article 1(b), "serfdom" is defined as "the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person to render some determinate service to another person, whether for reward or not, and is not free to change his [or her] status". Back
16. Special Rapporteur on Violence Against Women, Its Causes and Consequences, Report on the Mission to the Democratic People's Republic of Korea, the Republic or Korea and Japan on the Issue of Military Sexual Slavery, E/CN.4/1996/53/Add.1 (4 Jan. 1996) at, for example, paras. 36, 42 and 58. Back
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