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URISDICTIONWith Akayesu, Pillay made history again. “Rape had always been regarded as one of the spoils of war,” she said in a statement after the verdict. “Now it is a war crime, no longer a trophy.”252
On May 31, 1994, the then-Secretary-General of the United Nations, Boutros Boutros- Ghali, presented a report on the situation in Rwanda to the Secretary Council, in which he states:
The magnitude of the human calamity that has engulfed Rwanda might be unimaginable but for its having transpired. On the basis of evidence that has emerged, there can be little doubt that it constitutes genocide, since there have been large-scale killings of communities and families belonging to a particular ethnic group.253
The Rwandan genocide therefore happened against the backdrop of willful ignorance of the international community, which was aware of genocide yet refused to intervene. During the genocide, the United Nations Commission on Human Rights, however, did appoint Ivoirian law professor René Degni-Segui as the Special Rapporteur on the situation in Rwanda. The Special Rapporteur’s reports showed clear evidence of genocide and crimes against humanity, and recommended either the establishment of an international ad hoc tribunal or the enlargement of the jurisdiction of the ICTY to bring those responsible for the massacres of the genocide to justice.254 These recommendations were made in the context that the ICTY, an ad hoc tribunal, was created a year earlier. Given the severe crimes investigated by the ICTY, the reports on
252 A statement from Judge Navi Pillay of South Africa, the first woman Judge at the ICTR, quoted in Dina Temple-
Raston, Justice on the Grass: Three Rwandan Journalists, Their Trial for War Crimes, and a Nation’s Quest for
Redemption (Simon and Schuster, 2005), 97
253 UNSC, Report of the Secretary-General on the situation in Rwanda, UN Doc. S/1994/640 (1994) 254 UNGA and UNSA, Situation of human rights in Rwanda, UN Doc. A/49/508 - S/1994/1157 (1994)
serious violations of international humanitarian law and the commission of crimes against humanity in Rwanda, and the lack of international efforts to stop the genocide, an international judicial institution, similar to the ICTY, was deemed to be of crucial importance. On December 18, 1994, the Security Council passed Resolution 955, establishing the International Criminal Tribunal for Rwanda (ICTR).
Between the end of the genocide in July 1994 and the establishment of the ICTR, millions of Rwandans fled the country to Europe, North America, and various African countries. Many of those fleeing were responsible for organizing and participating in the genocide. Rwanda, however, did not have extradition treaties with many states to obtain custody of suspects living in foreign countries. Many governments also refused to return these suspects, concerned about a judiciary in shambles in Rwanda and its questionable capacity to provide fair trials to suspects who might be returned to the country. Given the widespread acceptance of the fact that a genocide happened in Rwanda, and an international pressure to prosecute those responsible for the crimes committed during the conflict, twelve countries to which these perpetrators had fled organized trials based on the principle of universal jurisdiction.
This chapter analyzes and evaluates the extent to which the ICTR and trials based on the principle of universal jurisdiction were successful in bringing comprehensive justice to victims of rape and sexual violence during the genocide. The chapter first provides a brief background of the ICTR, including its mandate and objectives, and summarizes its record in prosecuting rape and sexual violence. It then provides a brief introduction to the legal framework for the creation of universal jurisdiction trials in other states, and summarizes their records. The chapter continues with an analysis of the strengths and weaknesses of these two mechanisms in bringing both retributive and restorative justice to victims of rape and sexual assaults.
Both mechanisms were able to bring some high-level perpetrators of rape and sexual violence to justice, and thus partially fulfilled their retributive justice mandate. Through both the testimonies of victims and the convictions of perpetrators, a partial historical record about rape and sexual violence during the genocide also emerged. This historical record contributed to a collective memory about what happened during the genocide, and confirmed that rapes and sexual violence were not only opportunistic attacks but also systemic elements of the genocide. Moreover, the ICTR was particularly successful at establishing an international jurisprudence for prosecuting rape and sexual violence under international law. Despite these successes, the ICTR also faced several institutional challenges as an international justice mechanism trying local crimes, and thus failed to bring comprehensive justice to many other victims. The Tribunal was inconsistent in defining rape and sexual violence, and different prosecutors demonstrated different levels of willingness to prosecute these crimes. Various cases moved through trials without sexual violence charges despite substantial evidence, creating a sense of frustration for many victims who had the courage to testify. In addition, the environment at the Tribunal was sometimes hostile to survivors of sexual crimes. Finally, the ICTR’s record also reflects an incomplete picture of sexual crimes during the genocide, and the Tribunal paid insufficient attention to restorative justice.
THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR)