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Rape, sexual violence
International Criminal Tribunal for Rwanda
During the Rwandan Genocide, between eight-hundred thousand and one million people were killed by Hutu extremists – a rate of killing four times greater than at the height of the Nazi Holocaust.
On 6 April 1994, the plane carrying Juvenal Habyarimana, the President of Rwanda, and Cyprien Ntaryamira, the President of Burundi, was shot down over Kigali. These assassinations shattered the peace agreement previously established in the hope of ending armed conflict between the Rwandan Patriotic Front and the Rwandan Government. Violence on an unimaginable scale spread throughout the entire country.
Over 100 days, genocide, crimes against humanity and war crimes were perpetrated primarily against Tutsi civilians and moderate Hutus. In response to the devastating conflict, the International Criminal Tribunal for Rwanda (ICTR) was created by the United Nations Security Council to “prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and neighbouring States…” Crimes of rape and sexual violence were included in these prosecutions.
“Akayesu did not kill with his own hands, but with his orders.” (Witness JJ)
Jean-Paul Akayesu was the bourgmestre (mayor) of Taba Commune – 11 miles from Kigali – when the genocide in Rwanda began to unfold. As bourgmestre, he was responsible for maintaining public order and had exclusive control over Taba Commune’s local police. He also had some power over the gendarmes (national police force) in the area.
Under Akayesu’s direction in Taba Commune, 2,000 people were killed during the genocide.
Witness JJ, a 35 year-old Tutsi woman, was living in the Commune when President Habyarimana’s plane was shot down. Within days, men came and killed her husband. She fled with her 20-month old son and sought help from Akayesu at the Taba municipal office. Although Akayesu had initially resisted the genocide, his attitude had changed by the time Witness JJ arrived – she, her child and other refugees were beat by men under Akayesu’s control and forced to flee for their safety. Witness JJ was chased, suffering and witnessing continuous beatings and attacks. At one point, she returned to the Commune’s municipal office with ten other refugees and asked Akayesu to shoot them, because they were so tired of the beatings. Akayesu ordered them away, adding that even if he had bullets, he would not waste them on Tutsi women.
Sexual violence, including multiple forms of rape, was continually perpetrated on Witness JJ and other women – in the forest, in front of other people, at different refuge sites. On more than one occasion, Witness JJ was dragged into ‘cultural center’ within the compound of the bureau communal, where she could hear the cries of young girls. On one occasion, she was raped multiple times by three men.On another, she heard Akayesu shouting to the Interahamwe, “Never ask me again what a Tutsi woman tastes like… Tomorrow they will be killed”. Witness JJ’s experience was common,the abuse widespread and systematic.
On 10 October 1995 Akayesu was arrested in Zambia. During a seventeen-month trial with testimony from forty-two witnesses, the ICTR heard the extent of his crimes. Witness JJ was one of many women to come forward to testify about the rape and sexual violence experienced in Taba Commune. Thanks to their bravery and the work of gender equality advocates, the individual charges brought against Akayesu included consideration of the use of sexual violence and rape. In total, Akayesu faced fifteen individual charges, including: genocide; complicity in genocide; direct and public indictment to commit genocide; extermination; murder; torture; cruel treatment; rape; other inhumane acts and outrages upon personal dignity; and crimes against humanity.
What was the decision?
“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” (para. 731).
Through its analysis, the ICTR found Akayesu guilty on many counts. In particular, with regard to his crimes of gender-based violence, the ICTR found him responsible for:
- Rape as a crime against humanity
- Other inhumane acts as a crime against humanity
- Rape as a crime of genocide
The ICTR recognised that the central elements of rape could not be captured in the mechanical descriptions of objects and body parts (para. 687). Rape was an aggressive, physical invasion of a sexual nature that violates personal dignity and constitutes torture when inflicted by, at the instigation of, with the consent of or acquiescence of persons acting in an official capacity.
The ICTR defined sexual violence and rape as (para. 688):
“…any act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact … coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal.”
These acts, according to the ICTR, fall within the scope of “other in humane acts”, “outrages upon personal dignity” and “serious bodily or mental harm” that, in this case, amounted to crimes against humanity.
Akayesu had reason to know sexual violence was occurring. He allowed rape, sexual violence and other inhumane acts to take place within or near his office. He facilitated the commission of the sexual violence through his words of encouragement for acts of sexual violence. By virtue of his authority, Akeyesu sent a clear message of official tolerance for sexual violence. Without these actions, the rape and other inhumane acts committed would not have happened. For these reasons, the ICTR concluded that Akayesu was criminally responsible for the aiding and abetting the crimes of rape and other inhumane acts that amounted to crimes against humanity (para. 694).
Under Articles 2 and 3 of the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”), genocide:
“…means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as:
1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberatly inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcible transferring children of the group to another group.”
From testimony at the trial, along with other evidence, the ICTR recognised rape on or near the Taba Commune was systematically perpetrated against all and only Tutsi women – therefore falling within the definition of genocide. As the ICTR recognised, ”Sexual violence was a step in the process of destruction of the Tutsi group – destruction of the spirit, of the will to live, and of life itself” (para. 732). This destruction resulting from sexual violence was targeted, with the intent of causing seriously bodily or mental harm to Tutsi women (and, in some cases, with the intent to kill them after) and the Tutsi group as a whole. Akayesu’s involvement in the aiding and abetting of these crimes meant he was also responsible for their occurrence. For these reasons, the ICTR concluded Akayesu was individually criminally responsible for genocide.
Learning from other institutions
Throughout the text of the case document, the ICTR’s decisions were supported by what other institutions and authorities had said about rape, sexual violence and criminal responsibility. This reinforces the legal value of international humanitarian standards on tackling VAW, and helps build a unified commitment to ending sexual violence in conflict. Some of the references to these institutions and authorities included (numbers correspond to paragraphs within the case document):
- International Criminal Tribunal for the Former Yugoslavia (ICTY): 465, 524, 606, 612-615
- Dusko Tadic Case (ICTY): 463 , 477
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: 597, 687
The Akayesu case marks an important step toward ending impunity for acts of sexual violence during armed conflict. The ICTR’s decision was not only the first time that an international tribunal enforced the 1948 Genocide Convention, it was also the first time an institution recognised rape and sexual violence as a means of perpetrating genocide.
As a result of the case, an important precedent was set for future international criminal tribunals and the door was opened for other acts of sexual violence to be prosecuted as an element of genocidal campaigns.