How prosecutors got the first rape conviction under international criminal law.
Updated: Sep 11, 2019
During the conflict in Rwanda, even though rape featured prominently in the commission of the core crimes, the first round of indictments did not contain rape charges. This was despite the fact that both Human Rights Watch and FIDH reported on incidences of sex crimes in Taba Commune by Akayesu, the then Mayor and his men. Amongst findings that staff was not trained to investigate sexual violence, there was a disdain in the prosecution staff’s approach towards the crime of rape. It was simply characterized as incidental to the war and not worthy for prosecution and condemnation as other crimes such as torture and murder. ‘It was common, at that time, to hear the assertion that genocide is killing, not rape, and that the women who were raped and survived were lucky they were not dead.’
Indeed by the time the case of Akayesu went to trial, the prosecutor explained the absence of rape charges on the basis that women victims and witnesses would not ‘talk about it’.
Although the ICTR made commendable progress in prosecuting sex crimes, many incidents were left unaccounted for. For example, in the cases of Cynagugu, Kamuhanda and Kajelijeli at the ICTR, the prosecution’s mishandling of charges, flawed indictments and the Chambers’ ‘undue procedural strictness’ had regrettably resulted in injustice. Notwithstanding the compelling testimonies of victims and witnesses, the defendants’ right of adequate defence was prioritised instead. In Muhimana, the Trial Chamber concluded:
[…] in the absence of a request for curative action, and in the light of the Prosecution’s failure to give clear notice, it would be unfair to the Accused, under all the circumstances, to allow the Prosecution to rely on such an allegation. Accordingly, the Trial Chamber will not consider this allegation in its factual or legal findings.
Taking the example of Muvunyi, both Trial and Appeals Chamber ruled that the indictment did not indicate the specific elements of the crime being plead, essential details of the crimes were omitted and evidence relating to other incidents not pleaded in the indictment were adduced instead. The case was sent back for re-trial by the Appeal Chamber due to these substantive errors. Six weeks before the re-trial, the Prosecutor applied to remove all charges relating to rape and sexual violence. Whilst the application was unsuccessful, eventually, due to flawed indictments, inadequate preparation of witnesses and time-mismanagement, the charges for sexual violence and rape were gradually watered down. The same happened in Musema where a lengthy indictment containing charges of rape and sexual assault, led to a trial on five separate counts of rape and sexual assault, but concluded in the dismissal of all rape and sexual assault charges.
Indeed advocates cannot take for granted that international outcry, robust media reporting and a well-drafted statute will guarantee convictions. The criminal system is an independent process. It has its own work schedule and strict rules of evidence and procedure. A case is only filed if charges are brought against specific individuals against an identifiable violation and victim(s). Charges are brought and sustained over the trial period only if the investigating team has collected sufficient and relevant evidence. Eliciting testimonies on sex crimes cases are fraught with challenges. In turn a conviction can only be handed down if the evidence satisfies the legal elements of a crime beyond reasonable doubt. Thus if investigators gather irrelevant evidence, or fail to gather evidence at all, charges cannot be filed and up till a point cannot be added/amended into existing charges. If the charge does not include sex crimes, any revelations that come forth during trial however compelling cannot be included in the indictment against the accused. It is at these junctions; investigations, analysis of evidence, prosecutions, trial-monitoring and post-trial assessment that gender justice require urgent, competent and consistent attention to.
Feminist jurisprudence requires that any new systems developed including international criminal prosecution (…), continue the ‘destabilizing agenda’ to expose the ways by which the law, and its associated processes, accounts for — or alternatively neglects — the particularized experiences of women in conflict.
Prosecutions for sexual violence have not yet been mainstreamed into international justice. In fact where prosecutions have taken place, it has been as a result of political will of prosecutors rather than institutional mainstreaming. Taking the lessons of history, advocates are urged to prepare for the likelihood that trial and investigation teams will vehemently resist or neglect opportunities for effective investigation and prosecution. In anticipation of this, advocates must be cautious to organize and maintain vigorous lobbying for sex crimes to be sensitively and comprehensively investigated and prosecuted throughout the trial proceedings. It took the fortunate accident that Judge Navanethem Pillay, the only female judge at the ICTR Trial Chamber, noticed that Witness J and H inadvertently reveal that they had witnessed rape, one committed against her six-year old daughter. At the incidence of these testimonies, the question was posed to the prosecution. Why was rape charges not included in the indictments?
‘[…]Nevertheless, the Chamber takes note of the interest shown in this issue by non-governmental organizations, which it considers as indicative of public concern over the historical exclusion of rape and other forms of sexual violence from the investigation and prosecution of war crimes. The investigation and presentation of evidence relating to sexual violence is in the interest of justice.’
Integrating sex crimes in prosecutions
Advocates should ensure that crimes of sexual violence are integrated into the investigations and prosecution strategies for each of the three core crimes. Often in overwhelming evidence, insufficient staff, and time constraints, charges are selected based on perceived severity and importance. So if sexual violence is understood as a secondary crime or collateral damage, prosecution strategies are selected in a gender-exclusive manner. Even in the heat of international condemnation, expressed commitments to prosecute, and documentation by world-renowned organisational, it cannot be assumed that the right methods of investigation will be conducted to gather the evidence required for a conviction. ‘So instead of saying “we don’t have the evidence”, international prosecutors should ask themselves instead: “The evidence is out there. Why don’t I have it? What did I do wrong? How can I fix it?”’
This requires that the evidence gathered satisfies the specificities of the actus reus and mens rea, which differ from crime to crime. For example for a crime against humanity to be established, amongst other criteria, it must be demonstrated that the acts were widespread and systematic. Failing that, the prosecution may instruct the investigations team to investigate the scale and systematization of the violations. Or the prosecution may instead choose to strategize the case to meet the elements of a different crime, like torture.
Unified strategy and work-plan
Advocates must enquire into and ensure that detailed strategies and work-plans are developed at the outset to bring trial and investigation teams together to work collaboratively in identifying the precise evidence required for a sexual assault charge, and how best to prosecute it within the given circumstances.
Advocates should ensure that charges are added in the early stages of the proceedings. If charges are later amended, they must be comprehensively integrated into the trials. A unified work-plan must be developed to ensure that sexual violence charges are consistently integrated into all cases. All trial teams should adopt a unified strategy as to how the specified events meet the legal elements for the crime charged. Trial teams should also work closely with investigation teams to ensure that the crimes are fully documented with the right kinds and threshold of evidence met.
Without a careful assessment of trial strategies and investigative techniques, it is likely that charges will be subsequently withdrawn due to evidentiary shortfalls which after a certain stage in the proceedings, cannot be revised. The pressure to quickly process the case in order to meet trial deadlines may also mean that some cases are prioritized over others.
Training, specialized appointments and work-plans
Though trial teams are composed of lawyers with varied and impressive criminal law experiences, it is not automatic that the investigation and trials will be conducted with gender-sensitivity, appreciating the specific ways women experience violence and the difficulties of recalling traumatic and shameful events. Adequate training, gender specialized appointments and gender parity in employment, particularly in senior management will mitigate some of these constraints.
“I was amazed at the gender bias that emerged in our international office. One of the precipitating factors was the high number of investigators amongst the staff of the office. For the most part, they were police and army officers. They came from many countries on five different continents. In all but one or two, there were no senior female investigators. Their culture was not such as to make them concerned about gender-related crime. It soon became apparent to me that it was essential to make them all aware that any form of gender discrimination or inappropriate language in the office would simply not be tolerated. I became convinced that if we did have an appropriate gender policy in the Office of the Prosecutor, we would have little chance of getting it right outside of the office.”
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 Rhonda Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes against Women into International Criminal Law’ (2000) 46 McGill Law Journal 217, 224
 Ibid, 225
 Binaifer Nowroji, ‘Your Justice is Too Slow: Will the ICTR Fail Rwanda’s Rape Victims?’ (United Nations Research Institute for Social Development, Occasional Paper №10, 2005) 2 <http://www.unrisd.org/80256B3C005BCCF9/%28httpPublications%29/56FE32D5C0F6DCE9C125710F0045D89F> accessed April 7, 2013
 Patricia Viseur Sellers, ‘Gender Strategy is Not Luxury for International Courts Symposium: Prosecuting Sexual and Gender-Based Crimes before International/ized Criminal Courts.’  17 (2) American University Journal of Gender, Social Policy and the Law 301, 315
 Clare McGlynn and Vanessa E. Munro, Rethinking Rape Law: International and Comparative Perspectives, (Routledge-Cavendish, 2011) 65
 Prosecutor v. Mikaeli Muhimana, Case No. ICTR- 95–1B-T, (Trial Chamber) 28 April 2005, para. 484
 The Prosecutor v. Tharcisse Muvunyi Case No. ICTR-2000–55A-T, (Trial Chamber),11 February 2010.
 Clare McGlynn and Vanessa E. Munro (n 6) 66
 Alfred Musema v. The Prosecutor, Case No. ICTR-96–13-A, (Appeal Chamber), 16 November 2001.
 Clare McGlynn and Vanessa E. Munro (n 6) 65
 Susan M. Pritchett, ‘Entrenched Hegemony, Efficient Procedure or Selective Justice?: An Inquiry into Charges or Gender-Based Violence at the International Criminal Court’ (2008) 17(1) Transnational Law and Contemporary Problems 265, 274
Clare McGlynn and Vanessa E. Munro (n 6) 63
 The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96–4-T, (Trial Chamber), 2 September 1998 para 417,
 Nowroji (n 4) 10
 Nowroji (n 4) 2
 Nowroji (n 4) 5
 Richard J Goldstone, ‘Prosecuting Rape as a War Crime’, (2002) 34 Case Western Reserve Journal of International Law 277, 280