Monday, November 3, 2008

Sexual Violence Before the ICTR: An Object Lesson for the ICC

We’ve blogged before (e.g., here, here, here, here, and here) on the mixed track record for the prosecution of sexual violence in international criminal law.

The experience of the International Criminal Tribunal for Rwanda (ICTR) (above) provides a forceful object lesson for the International Criminal Court (ICC) and other international criminal law tribunals into the ways in which crimes of sexual violence can be poorly- or under-prosecuted and thus rendered invisible. Although gender violence in Rwanda did not receive the levels of media attention focused on similar crimes committed in the former Yugoslavia, the Rwandan statistics—inherently approximate—are stunning. Estimates range from 250,000 to 500,000 rapes during the short period of the genocide (April-June 1994), promoting the Special Rapporteur of the Commission on Human Rights to observe that
Rape was the rule and its absence the exception.
Rape in Rwanda was also accompanied by sexual mutilation and torture, and women and girls were often literally raped to death by perpetrators wielding machetes, sharpened sticks, broken bottles, and other implements. By some accounts, all female survivors—including very young girls—in Rwanda were raped or sexually assaulted during the 100 days of the genocide. See Human Rights Watch, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath (1996).
Yet, the results of the cases before the ICTR do not reflect the high levels of gender violence in Rwanda during the genocide. In fact, the systemic lack of gender violence charges and high numbers of acquittals for what charges were brought generates the opposite impression. This disconnect reflects the many ways in which gender justice can be neglected or sidelined in international criminal law where gender violence is not central to a prosecutorial strategy.
A recent chapter in this saga has occurred in the Muvunyi (left) case. (Relevant decisions available here). A few weeks prior the start of trial, the prosecution sought to withdraw the rape charges altogether on the grounds that witnesses could not be traced and others refused to testify. The prosecution’s decision caused an uproar in Rwanda; even Rwanda’s representative to the ICTR criticized the decision.
The Trial Chamber denied the prosecutor’s request to withdraw the rape charge on the grounds that
  • the Prosecution had not provided sufficient grounds upon which to reconsider the confirmation of the original indictment and
  • the Defense had already expended time and resources preparing to defend the charges.
The Trial Chamber also rejected other proposed amendments amounting to new charges as prejudicial where the prosecution could not justify the delay in seeking the changes. The Trial Chamber instructed the prosecution that it need not amend the indictment; rather, it could simply present no evidence at trial and take an acquittal.
At trial, however, the prosecution managed to locate and present the testimony of three rape victims, whose harrowing testimony was deemed reliable by the Trial Chamber. None of the witnesses, however, was raped by the specific group of subordinates alleged in the indictments. Accordingly, the defendant was acquitted on these counts.
Both sides appealed, with the prosecution alleging error in the rape acquittals. In August 2008, the Appeals Chamber, in an as-yet unpublished decision, quashed the original convictions and ruled that the defendant should be partially retried on the incitement to genocide count pursuant to Rule 118(C), because the Trial Chamber did not adequately state the reasons for his conviction. Once again, rapes of Rwandan women are un-redressed.
Although it is largely too late for the women of Rwanda, the ICC—whose constitutive statute contains groundbreaking structural, procedural, and substantive provisions to ensure gender justice—must generate better results for women victims elsewhere. Fortunately, in several pending indictments, the Office of the Prosecutor has demonstrated an early commitment to ensuring gender justice, suggesting that the missteps, carelessness, and neglect characterizing gender justice before the ICTR may not be repeated before the ICC.

1 comment:

simon williams said...

ICTR-ADAD Defence Lawyers at Rwanda Tribunal call for suspension of Court and independent investigation of manipulation by member states: