By Betty Murungi
Advocate, High Court of Kenya and member of the Coalition for Women's Human Rights in Armed Conflict Situationscoordinated by the Women's Rights Programme at Rights & Democracy.
The genocide that took place in Rwanda in 1994 brought into sharp focus the enormity of crimes that had been committed against women, particularly the women of the group targeted for genocide. The horrendous acts of sexual violence were documented and widely publicized. 1
The first full adjudication by an International Tribunal on the Crime of genocide 2 and rape as a constituent act of genocide was in the case of the Prosecutor vs. Jean Paul Akayesu 3. The judgment was delivered on September 2 1998. Jean-Paul Akayesu was the mayor (bourgmestre) of the Taba Commune in Central Rwanda at the time of the genocide in 1994. He was charged before the ICTR with genocide and crimes against humanity. The indictment did not initially include charges of sexual violence, but following spontaneous evidence during trial of sexual abuse and questioning by the bench of the late Judge Laity Kama, Nivanethem Pillay and Lennart Aspegren, the charges were brought via an amendment to the indictment upon the request of the prosecutor on June 17, 1997.
The Akayesu, bench consisted of judges who had broad and particular experience in matters of sexual violence and discrimination and who were cognisant of the importance of not importing discrimination against women into the process of international justice. They were able to point out to the Prosecutor during trial that perhaps charges needed to be brought to take into account evidence that had been given and by their questioning of witnesses were able to tease out details that were not elicited by questioning by the prosecutors. The Akayesu bench's judicial activism cannot be overstated. The accused was eventually charged with rape following an amendment to the indictment. The chamber explained the amendment as follows:
On June 17, the indictment was amended to include allegations of sexual violence and additional charges against the accused under Article 3(g). Article3 (I) and Article 4(2)(e) of the ICTR Statute. In introducing this amendment, the Prosecution stated that the testimony of Witness H motivated them to renew their investigation of sexual violence in connection with events which took place in Taba at the Bureau Communal. The Prosecution stated that evidence previously available was not sufficient to link the Accused to acts of sexual violence and acknowledged that factors to explain this lack of evidence might include the shame of that shame that accompanies acts of sexual violence as well as insensitivity in the investigation of sexual violence. The Chamber understands that the amendment of the indictment resulted from the spontaneous testimony of sexual violence by witness J and H during the course of this trial and the subsequent investigation of the prosecution, rather than from public pressure. Nevertheless the chamber takes note of the interest shown in this issue by nongovernmental organizations, which it considers as indicative of public concern over the historical exclusion of rape and other forms of sexual violence from the investigation and prosecution of war crimes. The investigation and presentation of evidence relating to sexual violence is in the interest of justice. 4
The Chamber's decision spelt out the clear importance of ending impunity for crimes of sexual violence. The unequivocal message was that these crimes were as important as any of the other crimes that the ICTR had jurisdiction over. The pressure exerted on the Prosecutor's Office and legal intervention by way of an amicus curiae brief filed by the Coalition for Women's Human Rights in Armed Conflict Situations, was not in vain. After this momentous ruling on allowing the indictment, the hope was that future indictments against accused persons at this tribunal would automatically include charges of rape and sexual violence where evidence of the commission of these crimes existed. Certainly, after the ground-breaking interpretation of rape as a constituent form of genocide, torture and enslavement in the judgment, it was widely expected that the prosecutor would be charging sexual violence in the broadest possible manner under the statute. Unfortunately this was to prove a false expectation.
The Akayesu decision is overwhelming in its holdings and dicta concerning sexual violence. 5 This case has been authoritatively cited in succeeding cases at the ICTR and at the sister tribunal at The Hague in the Furundzija 6 , Celebici 7 and Kunarac 8 judgments. This case enters the annals of history on many fronts, the most significant being the finding that rape constituted an act of genocide and torture and also the first time rape was defined under international law. The definition of rape in paragraph 596, 597and 598 of the judgment reads:
The Chamber must define rape, as there is no commonly accepted definition of this term in international law. 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. The Chamber considers that rape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts&. The Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances, which are coercive. Sexual violence which includes rape, is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive.
The importance of this definition is that it ousted consent as a defence to rape under international law where coercive circumstances can be established, 9 include rapes committed against children and men and expanded the acts that constitute rape to include any physical invasion of any body orifice by any object introduced externally.
The Chamber found that in general, rape and other crimes of sexual violence was an integral part of the Rwandan genocide of 1994. Acts of rape, forced nudity, sexual slavery and mutilation were committed on a large scale against Tutsi women and some Hutu women perceived as sympathizers of the Tutsi. The sexual violence was ultimately designed to result in death or to destroy the woman psychologically, culturally and physically so as to render her incapable of normal existence, her capacity to produce and reproduce was often eliminated. Her rights as a person were extinguished in the process. The chamber held:
In light of all the evidence before it, the Chamber is satisfied that the acts of rape and sexual violence described above were committed solely against Tutsi women, many of whom were subjected to the worst public humiliation, mutilated and raped several times, often in public, in the Bureau Communal premises or in other public places, and often by more than one assailant. These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole. 10
The excitement generated by the Akayesu decision was understandable given the historical trivialisation of crimes against women and the mischaracterisation under international law particularly of sexual crimes committed against women during conflict situations 11. The result of this was reflected in the investigations of crimes, charging patterns and eventual prosecution of these crimes internationally and particularly at the ad hoc tribunals.
Perhaps as a direct consequence of Akayesu, several indictments of persons facing charges at the ICTR subsequently included charges of rape 12 and several others were amended to include charges of rape and sexual violence. In one instance rape has been charged as torture, 13 fully indicating that the Prosecutor was prepared to charge rape in all its manifestations. However, it has been rather disappointing after Akayesu that the Prosecutor has failed to charge rape as an act of genocide or as torture in more indictments where there is clear evidence. In the case of the Cyangugu 14 defendants, two witnesses, one a victim and another a perpetrator gave evidence of rapes being committed and yet there were no charges of rape or sexual violence at all in the indictments. 15 In the case of Omar Sherushago 16 the indictment originally contained specific charges of rape, but these charges were withdrawn at the plea bargain that enabled the defendant to plead guilty.
The statute and the jurisprudence of the ICTR recognize crimes of sexual violence as among the most egregious crimes under international law. The challenge therefore rests with the proper investigation and prosecution of these crimes. The prosecutor should not be surprised by witnesses giving evidence to sexual assaults during a trial. These crimes should be investigated as seriously as other crimes within the jurisdiction of the Tribunal. The old excuse that victims do not want to talk of these crimes of sexual violence does not hold much water, not when witnesses who are victims tell of gang rapes, sexual slavery and other sexual assaults in the course of giving evidence as to murders and other atrocities 17.
1 See Human Rights Watch, Shattered Lives:Sexual Violence during the Rwandan Genocide and its aftermath (September 1996), Catherine A.Mackinnon, Rape, Genocide,and Women's Human Rights (1994) 17 Harvard Women's L.J 5,6-8, Africa Rights, Death, Despair and Defiance (September 1994) Avega Agohozo, Etude sur le violences faite aux femmes, Dec 1999
2 Pursuant to the Genocide Convention, 1949
3 Prosecutor vs. Akayesu (case no.ICTR-96-4-T)
4 Akayesu judgment,2nd September para 417.
5 See Patricia Viseur Sellers in Substantive and Procedural Aspects of International Criminal Law, Chapter 7D The Context of sexual violence: Sexual violence as violations of International Humanitarian Law'.
6 Prosecutor vs. Anto Furundzija, (Case no. IT-95-17/1-AR73), judgment, 10 Dec 1998.
7 Prosecutor vs. Delalic et al.(Case no. IT-96-21-T), judgment, 16 November 1998.
8 Prosecutor vs. Kunarac et al.(Case no. IT-96-23/2), judgment, 22 February 2001.
9 Akayesu judgment, para 688.
10 Akayesu judgment, September2 1998, para 121.
11 See Barbara C.Bedont's essay, Gender Specific Provisions in the Statute of the ICC' in F.LATTANZI W. SCHABBS, eds. Essays on the Rome Statute of the International Criminal Court, Naples: Editorials Scientifica, 1999.
12 Prosecutor vs. Edourd Karemera et al. (Case no. ICTR-98-44-1).
13 Prosecutor vs. Semanza (Case no. ICTR no 97-20-1).
14 Prosecutor vs. Samuel Imanishimwe et al. (Case no. ICTR 99-46-T).
15 An attempt by the prosecutor to examine the witness on sexual violence was turned down by the chamber after successful challenge by the defence. The Prosecutor had early on in the proceedings withdrawn an amended indictment that contained rape charges against two of the defendants.
16 Prosecutor vs. Omar Sherushago (ICTR case no. ).
17 As in the Akayesu and Cyangugu cases
Certainly, advances have been made in recognizing women’s rights. The legal framework is increasingly responsive to the experiences of women and girls in conflict, especially in cases of sexual violence, as we have seen in the important work being carried out by the international criminal tribunals. But there remains much to be done, particularly to improve prevention and to combat impunity.
-- Kofi Annan
October 28, 2002