Journal of International Criminal Justice Advance Access originally published online on August 12, 2005
Journal of International Criminal Justice 2005 3(4):1007-1018; doi:10.1093/jicj/mqi061
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IV. Focusing on ICTR Case Law |
Gender Crimes Jurisprudence in the ICTR
Positive Developments
* Senior Legal Officer, International Justice, Open Society Justice Initiative; Fulbright 2004–2005 New Century Scholar on the Global Empowerment of Women; Fellow, Yale Law School. [kaskin{at}justiceinitiative.org]
Considering the magnitude of rape and other sexual crimes perpetrated during the Rwandan genocide, gender crimes prosecutions at the International Criminal Tribunal for Rwanda (ICTR) have been inadequate so far. Nonetheless, the ICTR case law must be commended for the impulse given, with and after Akayesu, to the criminalization and punishment of gender-related violence. This paper points to the achievements of the ICTR case law in this respect.
1 Judgment, Akayesu (ICTR 96–4-T), Trial Chamber I, 2 September 1998.
2 See especially Judgment, Musema (ICTR-96–13-A), Appeals Chamber, 16 November 2001; Judgment, Niyitegeka (ICTR-96–14-T), Trial Chamber I, 16 May 2003; Judgment and Sentence, Ndindabahizi (ICTR-2001–71-I), Trial Chamber I, 15 July 2004; Judgment and Sentence, Ntagegura, Bagambiki and Imanishimwe (ICTR-99–46-T), Trial Chamber III, 25 February 2004.
3 For an extensive account of the negative ICTR jurisprudence and failings, see B. Nowrojee, ‘ "Your Justice Is Too Slow": How the ICTR Failed Rwanda's Rape Victims’, in Women and Armed Conflict (UNRSD: Zubaan Books, forthcoming June 2005); K.D. Askin, ‘The Treatment of Gender Crimes in the ICTR: Progress or Regression? The Akayesu Legacy at Risk’ (forthcoming: 2005).
4 Examination-in-Chief of Brent Beardsley, former aide to the force commander, General Roméo Dallaire, UN peacekeeping mission in Rwanda, Bagasora, Kabiligi, Ntabakuze, Nsengiyumva (ICTR-98–41-T), trial transcript of 3 February 2004.
5 Amended Indictment, Akayesu (ICTR-96–4-I), 17 June 1997.
8 ‘The Tribunal 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 Tribunal also notes the cultural sensitivities involved in public discussion of intimate matters and recalls the painful reluctance and inability of witnesses to disclose graphic anatomical details of sexual violence they endured ... . Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when it is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’, ibid., 
687.
15 Ibid., 732. For a discussion of the ways in which sexual violence can be prosecuted as genocide under each sub-article of the Genocide Convention, see K.D. Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals (The Hague: Kluwer Law, 1997).
16 The Sentencing decision was delivered on 2 October 1998, and Akayesu was sentenced to three life terms plus 80 years’ imprisonment. The life sentences were rendered for the genocide, incitement to genocide and extermination as a crime against humanity convictions. The three murder verdicts and the rape conviction for crimes against humanity each received 15-year sentences, and two convictions for the crimes against humanity of torture and inhumane acts each received 10-year sentences (Sentence, Akayesu (ICTR-96–4-T), Trial Chamber I, 2 October 1998). The Appeals Chamber Judgment, rendered on 1 June 2001, upheld most of the findings of the Trial Chamber, including all of the sexual violence convictions. See Judgment, Akayesu (ICTR-96–4-A), Appeals Chamber, 1 June 2001.
17 Judgement, Kayishema and Ruzindana (ICTR-95–1-T), Trial Chamber II, 21 May 1999.
18 Kayishema and Ruzindana, supra note 17, 108.
19 Amended Indictment, Semanza (ICTR-97–20-I), 12 October 1999.
20 Judgment and Sentence, Semanza (ICTR-97–20-T), Trial Chamber III, 15 May 2003.
21 Semanza, supra note 20, 474.
24 ‘The Chamber finds beyond a reasonable doubt that Victim A was raped by one of the assailants who heard the Accused encouraging the crowd to rape Tutsi women. In light of the generalized instructions about raping and killing Tutsis, the ethnic group targeted by the widespread attack, and the fact that the assailant arrived at Victim A's hiding place with two others who then killed Victim B, the Chamber finds that this rape was part of the widespread attack against the civilian Tutsi population and that the assailant was so aware. The Chamber therefore finds that the principal perpetrator committed rape as a crime against humanity.
Having regard, inter alia, to the influence of the Accused and to the fact that the rape of Victim A occurred directly after the Accused instructed the group to rape, the Chamber finds that the Accused's encouragement constituted instigation because it was causally connected and substantially contributed to the actions of the principal perpetrator. The assailant's statement that he had been given permission to rape Victim A is evidence of a clear link between the Accused's statement and the crime. The Chamber also finds that the Accused made his statement intentionally with the awareness that he was influencing the perpetrator to commit the crime’, ibid., 477–478.
25 ‘Noting, in particular, the extreme level of fear occasioned by the circumstances surrounding the event and the nature of the rape of Victim A, the Chamber finds that the perpetrator inflicted severe mental suffering sufficient to form the material element of torture ... .
The Chamber finds that the rape was committed on the basis of discrimination, targeting Victim A because she was a Tutsi woman. The Chamber recalls that severe suffering inflicted for the purposes of discrimination constitutes torture and, therefore, finds that the principal perpetrator tortured Victim A by raping her for a discriminatory purpose. ...
The Chamber finds that by encouraging a crowd to rape women because of their ethnicity, the Accused was encouraging the crowd to inflict severe physical or mental pain or suffering for discriminatory purposes. Therefore, he was instigating not only rape, but rape for a discriminatory purpose, which legally constitutes torture. The Chamber finds that his words were causally connected to and substantially contributed to the torture of Victim A because immediately after the Accused made his remarks to the crowd, the assailant went to a nearby home and tortured Victim A by raping her because she was a Tutsi woman. The Chamber notes that the Accused's general influence in the community and the fact that his statements were made in the presence of commune and military authorities gave his instigation greater force and legitimacy’, ibid., 482–485.
27 Indictment, Gacumbitsi (ICTR-01–64-I), 20 June 2001, 3.
28 Judgment, Gacumbitsi (ICTR-01–64-T), Trial Chamber III, 17 June 2004, 215.
29 Gacumbitsi, supra note 28, 215.
36 Amended Indictment, Barayagwiza (ICTR-99–52-I), 13 April 2000; Indictement, Nahimana, (ICTR-96–11-I), 15 November 1999; Amended Indictment, Ngeze (ICTR-97–27-I), 10 November 1999.
37 Judgement and Sentence, Nahimana, Barayagwiza and Ngeze (ICTR-99–52-T), 3 December 2003.
41 See especially Revised Amended Indictment, Muhimana (ICTR-95–1B-I), 3 February 2004; Amended Indictment, Karemera, Ngirumpatse, Nzirorera and Rwamakuba (ICTR-98–44-I), 18 February 2004; Amended Indictment, Kanyabashi (ICTR-96–15-I), 2 November 2000; Amended Indictment, Nyiramasuhuko and Ntahobali (ICTR-97–21-I), 1 March 2001; Amended Indictment, Bagasora (ICTR-96–7-I), 12 August 1999; Amended Indictment, Nsengiumva (ICTR-96–12-I), 12 August 1999; Amended Indictment, Kabiligi and Ntabakuze (ICTR-97–34-I and ICTR-97–30-I), 12 August 1999; Indictment, Bizimungu, Mugenzi, Bicamumpaka and Mugiraneza (ICTR-99–50-I), 7 May 1999; Indictment, Bizimungu et al. (ICTR-2000–56-I), 20 January 2000; Indictment, Muvunyi (ICTR-2000–54A-I), 7 November 2000.
42 See, e.g. Indictment, Bisengimana (ICTR-2000–60-I), 1 July 2000; Indictment, Rugambarara (ICTR-2000–59-I), 1 July 2000; Indictment, Hategekimana (ICTR-2000–55-I), 7 November 2000; [Original] Indictment, Mpambara (ICTR-2001–65-I), 23 July 2001; Amended Indictment, Bikindi (ICTR-2001–72-I), 22 October 2003; Indictment, Nzabirinda (ICTR-2001–77-I), 6 December 2001; Indictment, Rukundo (ICTR-2001–70-I), 27 March 2003; Amended Indictment, Bizimana et al. (ICTR-98–44-I), 21 November 2001; Indictment, Nizeyimana et al. (ICTR-2000–55-I), 7 November 2000.