Sunday, August 28, 2011

Like Mother Like Son

To close the loop on a prior post, we should note that a Trial Chamber of the International Criminal Tribunal for Rwanda convicted the first woman for rape as a crime against humanity at the end of June.
The case involves six individuals accused of forming an alliance to eliminate Tutsis in Butare préfecture, which had one of the highest percentage of Tutsis residents in the country. The ranking defendant was Pauline Nyiramasuhuko (right), who served as Minister of Family and Women’s Development under the Interim Government headed by Jean Kambanda. Her son, Arsène Shalom Ntahobali (left), was jointly accused.
The ICTR indicted the two in 1997; soon after, they were arrested in Kenya. In 1998, the Prosecutor successfully sought to amend the indictment to add rape charges. The charges stem from allegations that Nyiramasuhuko and Ntahobali abducted, assaulted, and killed Tutsi individuals who had taken refuge in the Butare Préfecture Office. The prosecutor alleged that Nyiramasuhuko ordered members of the interahamwe under the control of her son to rape Tutsi women in their custody. Witnesses testified that she even ordered her own son to participate.
Because of defects in the pleadings in the indictment—which were not cured by subsequent submissions by the Prosecutor—the Chamber did not consider the rape allegations in connection with the genocide charges alleged against the two. Instead, these acts were considered crimes against humanity and as the war crime of outrages upon personal dignity. Reading the indictment as a whole, the Trial Chamber ruled:

While there is ample notice that Nyiramasuhuko and Ntahobali were being charged with rapes under the counts of rape as crime against humanity, and of outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II thereto, the Prosecution provided
insufficient notice of its intention to pursue rape as genocide.

Nonetheless, these acts were repeatedly mentioned in connection with the Chamber’s consideration of the genocide charges and were treated as evidence of the defendants’ specific intent to destroy the group in whole or in part. Any reference to rape in the genocide discussions was, however, accompanied by the caveat that

the Chamber recalls that it will not take rapes into account in assessing genocide, but instead will consider them for charges that were properly pled.

The Chamber also found beyond a reasonable doubt that Nyiramasuhuko distributed condoms to members of the interahamwe to be used in the raping and killing of Tutsi women. Apparently, Nyiramasuhuko ordered the woman to whom she distributed the condoms to:

'Go and distribute these condoms to your young men, so that they use them to rape Tutsi women and to protect themselves from AIDS, and after having raped them they should kill all of them. Let no Tutsi woman survive because they take away our husbands.'

In a somewhat baffling ruling, the Trial Chamber found that this statement did not constitute "direct and public incitement" to commit genocide.
The Chamber apparently considered the statement, while direct, to be insufficiently public, because it was addressed to only one person, although it was made in the presence of others. As such, the Chamber found instead that these statements were “more akin to a ‘conversation’” than incitement. That said, these statements were also invoked as circumstantial evidence of her genocidal intent.
Nyiramasuhuko was charged only under Article 6(3) of the ICTR Statute, for superior responsibility, whereas Ntahobali was also charged under Article 6(1), as a direct perpetrator. Although there was evidence that Nyiramasuhuko instructed her son to rape Tutsi women, the Chamber rejected allegations that Ntahobali could be considered Nyiramasuhuko’s "subordinate" within the meaning of the doctrine of superior responsibility. Specifically, the Chamber found that

the relationship between Nyiramasuhuko and Ntahobali in 1994 was complex, owing in part to the familial and interpersonal relationship shared by these two Accused. This complexity, however, cannot be confused for a superior-subordinate relationship. Cognisant that the burden of proof falls on the Prosecution to establish this element, the Chamber finds that there is insufficient evidence to enter a finding of a superior-subordinate relationship between Nyiramasuhuko and Ntahobali beyond a reasonable doubt.

Nonetheless, the Chamber did find that both accused exercised superior responsibility over members of the interahamwe, the militia. In addition, the Chamber determined that Ntahobali bore direct responsibility as a principal perpetrator for committing a number of criminal acts. Nyiramasuhuko was also convicted of conspiracy to commit genocide.
In addition to the apparent oversight in failing to charge rape as genocide, the Chamber more directly chided the prosecution for the way in which it charged the theory of responsibility vis-à-vis Nyiramasuhuko. In particular, the Chamber wrote that limiting the charges against her under Article 6(3) of the Statute was “a serious omission,” given its finding that Nyiramasuhuko had ordered interahamwe to rape Tutsi women at the Butare Préfecture Office.
The Trial Chamber sentenced both defendants to life imprisonment.
The case is on appeal. The defendants were granted additional time for their filings in light of the fact that the French version of the judgment is not expected until 2012. (The Prosecutor's office, which is capable of working in English, was also granted a short extension.) At almost 1,500 pages, the judgment is the lengthiest issued by the ICTR to date.
For more on female defendants before international criminal tribunals, see here, here and here.

No comments: