During the Rwandan genocide sexual violence was used as a weapon of war to ravage a people. Women were tortured psychologically, physically and emotionally. For some women the "dark carnival" of the genocide has not ended. (1) Living side by side with the men who committed violence against them, they must confront their past every day. This Article explores how, post-genocide, the country has come to adjudicate these crimes in gacaca.
Gacaca is a unique method of transitional justice, one that calls upon traditional roots, bringing community members together to find the truth of what happened during the genocide and punish those who perpetrated violence. One scholar calls gacaca, "one of the boldest and most original 'legal-social' experiments ever attempted in the field of transitional justice." (2) Others, however, criticize gacaca for the impunity it grants to crimes committed by the current ruling party, the Rwandan Patriotic Front (RPF), (3) and its lack of due process and nonconformance to international fair trial processes. (4) Most authors find that, for cases of sexual violence, gacaca is a wholly unsuitable forum.
When gacaca began in 2001, sexual violence (5) was not within its jurisdiction. Crimes of sexual violence were classified in category one (the highest category of crimes) along with the crimes of planning and supervising the genocide, and were under the jurisdiction of the national courts. Eventually, sexual violence cases were heard in the gacaca courts after a 2008 amendment to the gacaca law.
After the 2008 amendment, 6608 cases of rape or sexual torture were transferred from the national courts to the gacaca jurisdiction to be completed as the gacaca justice system was brought to a close. (6) The Minister of Gender and Women's Development in Rwanda estimated that 250,000 women were raped during the genocide. (7) Human Rights Watch suggests the number is much higher. (8) The question arises: what of the other 243,392 victims? How were their cases adjudicated?
The history of the classification of sexual violence as a category one crime is, in one way, a triumph of the woman's rights movement in Rwanda. Sexual violence was meant to be considered the most serious of crimes. However, this triumph resulted in sexual violence cases being moved to the side as the national courts practiced triage on their judicial system. The short time frame allocated for the adjudication of sexual violence trials in gacaca allowed for perpetrators to escape trial in national courts and sent inconsistent messages to the victims. This Article reveals that many of those who committed crimes of sexual violence received de facto amnesty.
Academics have argued that it would be inappropriate to adjudicate sexual violence in gacaca, a public court. The shame and fear women associated with the sexual nature of the crimes committed against them meant that the adjudication process would be a re-victimization. It is easy to conclude that the low number of sexual violence cases adjudicated in Rwanda reflects this social and cultural context. However, this Article will show that personal, cultural and societal forces were not the only drivers of the low caseload. Rather, the structure and process of the judicial mechanism prohibited women's access to justice.
This Article argues that the classification of rape and sexual torture as a category one crime within the jurisdiction of the national courts impeded access to justice for victims. In Part I, I will discuss the history of sexual violence during the genocide, the history of women in Rwanda, the history and mechanics of the gacaca justice system and the criminalization of sexual violence in international law. In Part II, I will examine what determined women's participation in gacaca and the problems women faced in participating in gacaca. I argue that while past scholars have found that the participation of victims of sexual violence was constrained by social mores, women do want to access justice and were inhibited because of legal and procedural features of gacaca. In Part III, I will identify the long-term impact of the manner in which sexual violence crimes from the genocide were adjudicated. By leaving sexual violence out of the gacaca process for the majority of time, women's voices were left out of the community narrative building process and there is a risk that those types of crimes will never be deemed 'wrong.' Lastly, I will conclude with the lessons that can be taken from Rwanda's endeavor to provide justice to victims of sexual violence. I argue that crimes of sexual violence should have initially been included within the jurisdiction of gacaca courts and that improved reporting procedures and training would have engendered greater participation.
Transitional justice is not a singular act; there are many tools to rebuild a country, and no single method can "adequately address and repair the injuries of the past nor chart a fully just future." (9) Recognizing that, this Article is an evaluation of the national adjudication of sexual violence crimes from the Rwandan genocide; a discussion of the reparations offered to victims is outside of its scope.
Sexual violence during the 1994 Genocide of the Tutsis
The nature of sexual violence during the Genocide
In the spring of 1994, 500,000 to 800,000 Rwandans (10) were murdered at the hands of the genocidaires. (11) Over only a few months, men, women and children were killed by their neighbors, friends, strangers and leaders. (12) The violence was perpetrated in a way that not only destroyed human lives, but also institutions, infrastructure, communities, families and social bonds. (13)
Exact figures on the number of cases of sexual violence during the genocide are unknown. (14) Some estimate that between 250,000 to 500,000 women were raped. (15) Others argue that nearly every female adult and adolescent who survived the genocide experienced some type of sexual violence; (16) and if not, they were profoundly affected by it. (17) According to one scholar, "rape constitutes the central experience of the genocide period for most female survivors." (18) Hutu women were also victims of sexual violence because of associations with Tutsis--through marriage or protection--or affiliation with the political opposition. (19)
The crimes of sexual violence were extensive, including rape, gang rape, forced slavery, forced incest, intentional HIV infection and sexual torture. (20) Sexual mutilation included the pouring of boiling water into the vagina, the opening of the womb to cut out the unborn child before killing the mother, cutting off breasts, slashing the pelvis area, removal of genital organs, introduction of harmful objects into the vagina and mutilation of the vagina. (21) Women and girls were pierced with spears, in some cases from their vagina to their mouth. (22)
The women were often raped after witnessing the torture and killing of their families, and the destruction and looting of their homes. (23) Many murder victims were raped before they were killed. (24) In some cases, women were forced to kill their own children, (25) or, in extreme cases, rape their own children. (26) Some women, before being killed, were forced to commit incest with a family member, or had their breasts cut off. (27) According to survivors, even the corpses of some women were raped. After murdering a woman, the militia would sometimes leave her naked with her legs spread apart to dehumanize her. (28)
During the genocide, houses were set aside specifically for the purpose of keeping women to rape. (29) Women were pulled aside at checkpoints or roadblocks, and government soldiers would block village exits to prevent people from escaping, allowing the interhamwe time to find all of the Tutsi and rape and murder them. (30)
In a January 1996 report, the United Nations Special Rapporteur on Rwanda, Rene Degni-Segui, found that:
Rape was the rule and its absence the exception ... According to the statistics, one hundred cases of rape give rise to one pregnancy. If this principle is applied to the lowest figure [the numbers of pregnancies caused by rape are estimated to be between 2,000-5,000], it gives at least 250,000 cases of rape and the highest figure would give 500,000, although this figure also seems excessive. However, the important aspect is not so much the number as the principle and the types of rape. (31) The National Population Office estimated that the number of pregnancies resulting from the war (also known as "enfants nondesires" (unwanted children) or "enfants mauvais souvenir" (children of bad memories) to be between 2000 to 5000. (32) In some cases, these pregnancies resulted in infanticide and self-induced abortions. In other cases, mothers who decided to keep the children have been rejected by their families. (33)
Women who survived the genocide faced innumerable physical, emotional and psychological problems, in addition to a difficult economic situation. Without male relatives to rely on for economic support, some genocide survivors found themselves destitute. (34)
Senator Aloysea Inyumba, former Minister of Family, Gender, and Social Affairs noted that, "what was particular to the Rwandan experience was that the atrocities took place in the most intimate settings--between colleagues, teachers and students, neighbours and, most destructively, within families...." (35) While the rapes were intimate, they were often in public settings. Rapes occured at victims' or perpetrators' houses, however, "more often it [the rape] was committed in plain view of others, at sites such as schools, churches, roadblocks and government buildings." (36) The public nature of the crime was further emphasized "frequently" when a woman's corpse was left "spread-eagle" in public view--as a reminder for all who passed of the genocidaires domination and the women's degradation. (37)