TANZANIA: Prosecution of Rwanda Gender Crimes at the ICTR

Emma Founds, Pitt Law '11, traveled to the International Criminal Tribunal for Rwanda (ICTR) through Pitt's Center for International Legal Education and reports on the ICTR's difficulty in prosecuting gender-based crimes, such as rape and sexual assault...



While there have been major advancements in the prosecution of gender crimes internationally, the ICTR has been lax in adjudicating sex crimes, such as rape and sexual enslavement for the majority of its existence. Hassan Bubacar Jallow, who filled the Office of the Prosecutor in 2003, sought to reinvigorate attention to gender crimes. While the Prosecutor's efforts were laudable, the Tribunal's impending closure, together with its dismal record of prosecuting gender crimes, makes it likely that Rwandan women will feel only a small sense of justice as a result of the Tribunal's work.

While the Tribunal failed to address the pervasive use of rape as a weapon of the Rwandan genocide during its first four years of existence, the indictment of a former bougmestre, or mayor, in Prosecutor v. Akayesu for inciting sexual violence drew praise from the international community. Akayesu was a groundbreaking decision that defined rape under international law and declared sexual violence and rape to be crimes against humanity. Additionally, Akayesu was the first decision to include rape and sexual violence in the definition of genocide. Despite being a major victory for women, the subsequent paucity of indictments for gendered crimes weakened Akeyasu's impact on the ICTR's prosecutions of sexual violence.

After Akayesu, the ICTR missed opportunities to obtain indictments for rape. In Prosecutor v. Kajelijeli the defendant was a bougmestre who allegedly conspired with subordinates to commit genocide, including the rape and assault of Tutsi women. Kajelijeli was convicted of genocide, but acquitted of the rape charges. Despite the likelihood that the rape charges would have been reinstated, the Prosecutor's Office missed the deadline for appeal.

A number of problems hindered the ICTR's prosecution of gender crimes. The Tribunal's location in Arusha, Tanzania, as well as the absence of widespread community outreach and education in Rwanda, meant that many Rwandan women were unaware of its existence and their right to redress. Further, stigmatization of rape in Rwanda meant that most women stated that they would report an incidence of sexual violence to a female investigator, but not to a male. However, until 1998, the ICTR employed only male investigators. Cultural nuances also hindered investigators, who had not been trained to recognize euphemisms and specific phrases used by Rwandan women to express sexual violence. For example, "he sat down with me" or "he married me," were used as euphemisms for rape. In some instances, words did not even exist in Kinyarwanda, one of Rwanda's official languages, to explain the sexual acts that had occurred.

Recent efforts by the Prosecutor's Office have led to an increase in the number of indictments that include rape allegations. As a result of Prosecutor Jallow's efforts, including motions to amend indictments to add rape charges, there have been 17 cases that include allegations of sexual violence. It remains to be seen how many of these indictments will prove successful, as they are currently in progress. However, a recent success came in the Muhimana [PDF] case, where the defendant was convicted of rape as an act of genocide and as a crime against humanity. The accused was found guilty of raping Tutsi women with the intent of degrading the entire Tutsi population. Most significantly, in charging Muhimana with rape as a crime against humanity, the court expanded the definition of rape as "non-consensual sexual intercourse," paying particular attention to the element of consent.

The court recognized that coercion was implicit when rape was prosecuted under theories of genocide, war crimes, and crimes against humanity. It held that the mechanical definition of rape, in which coercion was an element, did not reflect the realities of rape during times of conflict. The Muhimana court determined that the prosecution did not have to prove coercion, and that coercion would henceforth be presumed in cases of rape under international law. Although Muhimana is a victory for women's rights and enhances the ICTR's legacy, the repeated failure to prosecute rape and sexual assault limits the positive effects that these cases may have otherwise had. Further, the ICTR's impending closure limits opportunities to provide the actual victims with justice and redress.

To ensure that the recent changes in the ICTR positively impact victims, it is necessary to conduct community outreach and educate citizens about the ICTR's activities. By providing victims and witnesses with information about the outcomes of ICTR trials, citizens can share in the accomplishment of convicting perpetrators of genocide. Emphasizing the victim's role in achieving convictions would help to achieve redress for the wrongs committed.

Additionally, culturally-sensitive community education about rape, sexual violence, and associated stigma should be conducted. Such programs would inform communities that rape is not the victim's fault and could help change societal attitudes towards sexual violence. While it is likely that the success of community education programs will be limited due to the Tribunal's impending closure, at a minimum, these programs would provide victims of sexual violence with a source of comfort and reinforce that they were not at fault for the atrocities that they experienced.

It would be a tragedy if the ICTR were to fail to conduct community outreach and education about sexual violence in the final stages of its existence. While Prosecutor Jallow's measures to reinvigorate attention to gender crimes are laudable, the actual effect of such efforts will likely be limited due to the Tribunal's bleak track record in prosecuting sexual crimes. In addition, the ICTR's imminent closure may limit the effect of the Tribunal's renewed focus on crimes of sexual violence. While Muhimana is important for recognizing gendered crimes as violating international law, it will be of little meaning to Rwandan women unless community outreach is conducted. Despite the ICTR's poor track record in prosecuting gender crimes, it still has time to refocus its efforts and make a difference for victims of sexual violence in Rwanda. By educating Rwandans about sexual violence and informing communities about the ICTR's successes, the Tribunal will have reached its ultimate goal - providing justice and redress to the victims of the Rwandan genocide.

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