A woman scorned for the "least condemned" war crime: precedent and problems with prosecuting rape as a serious war crime in the International Criminal Tribunal for Rwanda.

AuthorWood, Stephanie K.

    The woman scorned is Pauline Nyiramasuhuko, Rwanda's Former Minister for Women's Affairs, who is currently on trial at the International Criminal Tribunal for Rwanda ("ICTR") for allegedly using her official capacity to incite Hutus to rape thousands of female Tutsis during the 1994 Rwanda Genocide. (1) She is the first woman to be charged with rape as a crime against humanity by an international tribunal. (2) The 1994 Rwanda Genocide had devastating effects on the female population in the country due to the systematic gender-based violence endorsed and carried out by government officials. (3) Almost one million people were killed in one hundred days (4) and, according to some reports, nearly all female survivors--including many young girls (5)--were raped and sexually brutalized. (6) While these crimes are neither historically nor geographically unique to the 1994 Rwanda Genocide, (7) the ICTR's efforts in prosecuting gender-based violence as crimes against humanity and tools of genocide have been unprecedented.8 Rape warfare, although common throughout history, has traditionally been the least condemned war crime.

    Although not without criticism, (9) the ICTR shattered historical ambivalence toward gender-based violence by indicting and prosecuting Rwandan officials who countenanced rape as a method of warfare during the genocide. (10) The first step in shattering this ambivalence occurred with the prosecution of Jean Paul Akayesu, (11) a mayor in the Taba Commune, (12) who also sanctioned massive sexual violence against Tutsi women. With the Prosecutor v. Akayesu (13) decision, the ICTR became the first international war crimes tribunal to convict an official for genocide and to declare that rape could constitute genocide. (14) Pressure from women's groups, coupled with cooperation and support coming from within the ICTR, led to the watershed decision linking sexual violence to the genocide in Rwanda. (15) However, the ICTR's handling of the Akayesu and Nyiramasuhuko cases also reveal a failure to adequately investigate and indict the gender-based violence sanctioned by the government during the genocide before trial, deficiencies in handling witnesses during the investigation and trial stages, and delays affecting the delivery of justice to survivors. These deficiencies must be addressed and corrected in order to maintain the Tribunal's legitimacy, protect women's human rights, and build upon the jurisprudence condemning rape warfare as genocide. An assessment of the ICTR's deficiencies is especially timely given that the tenth anniversary of the genocide occurred in April 2004.

    Although the Akayesu conviction and the Nyiramasuhuko prosecution have significant precedential value, the problems encountered by the ICTR in indicting and prosecuting gender-based violence should be lessons for future prosecutions in the international community. (16) Recognition of rape as a serious war crime represents only the first step in creating the deterrent necessary to combat future impunity. Assessing the past in order to improve the effectiveness of future prosecutions for rape warfare is imperative as women of all ages, races, colors, creeds, and ethnicities continue to be raped during armed conflicts. (17) Effective prosecutions will lead to more convictions, which will in turn translate into a legal vindication of women's human rights in the international community. (18)

    This article argues that while the ICTR has established an important precedent in prosecuting gender-based violence as crimes against humanity and tools of genocide, its deficiencies illustrate the continued straggle to enforce international norms protecting women from violence during armed conflict. (19) Without improvements in three specific areas, the potency of the ICTR's groundbreaking decisions will become diluted and less likely to be applied by other legal bodies, to further the objective of enforcing women's human rights, and to lead to greater deterrence of gender-based violence. Part II of this article discusses the gender-based violence that occurred during the 1994 Rwanda Genocide and addresses the historic ambivalence toward prosecuting rape as a war crime or crime against humanity. This ambivalence demonstrates a lack of implementation and enforcement of the legal norms protecting women's human rights. (20) Part III emphasizes the significance of the first international conviction of rape as a condemnable war crime, while highlighting the need for improvements in order to ensure more effective prosecution of gender-based violence. The cases of two prominent Rwandan officials--Akayesu and Nyiramasuhuko--are discussed in this regard. Part III also explains how the ICTR's progressive precedent on sexual violence is being tarnished by the Tribunal's continuing failure to adequately indict perpetrators for commission of gender-based crimes, a widening divide between the need for legal justice and survivors' interests, and excessive delays that are diluting the credibility of legal justice as a deterrent. Part IV concludes with three major recommendations to the ICTR directed at improving the Tribunal's prosecution of gender-based violence and preserving its legitimacy as a source of international condemnation and deterrence.


    While violence against women occurs every day worldwide, (21) women are particularly vulnerable to gender-based violence (22) during armed conflict. (23) International norms (24) protect women from gender-based violence in theory, (25) but adequate norm development requires implementation and enforcement by the international community in order to transform theory into practice. (26)

    1. The Least Condemned War Crime: A Historical Perspective of Rape in Armed Conflict

      Prior to the Akayesu decision, the international community treated rape as the "least condemned war crime." (27) Throughout history, rape has regularly been used as a method of warfare in both international and internal armed conflicts; (28) however, the international community has treated rape as a prosecutable war crime only in the last fifty years. (29)

      Despite the sexual violence and systematic rape that occurred during World War II, (30) rape was not prosecuted as a war crime. (31) The International Military Tribunal for the Far East ("IMTFE") (32) omitted sexual crimes from its charter (although charges of rape were included in some of the indictments). (33) The IMTFE prosecuted rape only in conjunction with other crimes, classifying it as "inhuman treatment," "ill-treatment," and "failure to respect family honour and rights;" however, it was not considered a serious enough charge to stand alone in an indictment. (34) In 1946, during the prosecutions led by the Control Council for Germany, (35) rape was specifically enumerated as a crime against humanity, although it was never prosecuted as such. (36) In fact, prosecutors did not include rape in a single indictment. (37)

      Promulgated in the wake of the Second World War, the Fourth Geneva Convention of 1949 explicitly recognized rape as a wrong in armed conflict, but framed it as an attack on a woman's honor instead of a serious human rights violation. (38) Article 27 of the Fourth Convention provides that "women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault." (39) By framing rape as an indignity or an attack on women's honor, the severity of this human rights violation in the eyes of the international community is diminished. The reach of the definition is limited because rape as a crime against honor requires preconditions of virginity or chastity--simply being an individual entitled to physical security is not sufficient. (40) It also ignores the fact that a rape victim subsequently faces community stigmatization and thus fears to reveal the violation, thereby diminishing the potential for justice. (41) In stark contrast, the prosecution of rape as a crime against humanity provides for the recognition that rape is "fundamentally violence against women--violence against their bodies, autonomy, integrity, selfhood, security, and self-esteem" thus an unacceptable human fights violation. (42)

      Although contemporary international treaties include gender-based violence as a prohibited offense, (43) the ICTR's gender-conscious prosecution of rape as a crime of war represents the long-awaited manifestation of concrete enforcement of women's international human rights. (44) The extensive and systematic gender-based violence that occurred during the 1994 Rwanda Genocide demonstrated the failure of international norms theretofore in protecting women from unlawful human rights violations. (45)

    2. Gender-Based Violence in the 1994 Rwanda Genocide

      Approximately one million Rwandan men, women, and children were massacred in a three-month period in 1994. (46) Ethnic tensions in Rwanda erupted after an unknown party shot down the plane carrying President Habyarimana in Kigali, Rwanda on April 6, 1994. (47) In response, two militia groups--the Rwandan Armed Forces ("RAF") and the Interahamwe--immediately set up roadblocks and began a house-to-house hunt to find and murder Tutsis and moderate Hutus for retribution. (48) During the ensuing Rwandan genocide, Hutu individuals committed widespread gender-based violence against Tutsi women and some Hutu women, (49) including rape, mutilation, and sexual slavery. (50) Moreover, Rwandan officials sanctioned and encouraged this violence. (51)

      Despite the existence of international norms proscribing violence against women, (52) the 1994 Rwanda Genocide had devastating effects on women. (53) Ethnic and gender stereotypes propagated by the Hutu majority before 1994 fueled widespread gender-based violence against women. (54) For example, propaganda portrayed Tutsi females as condescending seductresses inaccessible to Hutu men. (55) When...

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