A Woman Scorned for the ‘Least Condemned’ War Crime: Precedent and Problems with Prosecuting Rape as a Serious War Crime in the International Criminal Tribunal for Rwanda

The woman scorned is Pauline Nyiramasuhuko, Rwanda’s Former Minister for Women’s Affairs, who is currently on trial at the International Criminal Tribunal for Rwanda (“ICTR”) for allegedly using her official capacity to incite Hutus to rape thousands of female Tutsis during the 1994 Rwanda Genocide. (1) She is the first woman to be charged with rape as a crime against humanity by an international tribunal. (2) The 1994 Rwanda Genocide had devastating effects on the female population in the country due to the systematic gender-based violence endorsed and carried out by government officials. (3) Almost one million people were killed in one hundred days (4) and, according to some reports, nearly all female survivors–including many young girls (5)–were raped and sexually brutalized. (6) While these crimes are neither historically nor geographically unique to the 1994 Rwanda Genocide, (7) the ICTR’s efforts in prosecuting gender-based violence as crimes against humanity and tools of genocide have been unprecedented. (8) Rape warfare, although common throughout history, has traditionally been the least condemned war crime. Although not without criticism, (9) the ICTR shattered historical ambivalence toward gender-based violence by indicting and prosecuting Rwandan officials who countenanced rape as a method of warfare during the genocide. (10) The first step in shattering this ambivalence occurred with the prosecution of Jean Paul Akayesu, (11) a mayor in the Taba Commune, (12) who also sanctioned massive sexual violence against Tutsi women. With the Prosecutor v. Akayesu (13) decision, the ICTR became the first international war crimes tribunal to convict an official for genocide and to declare that rape could constitute genocide. (14) Pressure from women’s groups, coupled with cooperation and support coming from within the ICTR, led to the watershed decision linking sexual violence to the genocide in Rwanda. (15) However, the ICTR’s handling of the Akayesu and Nyiramasuhuko cases also reveal a failure to adequately investigate and indict the gender-based violence sanctioned by the government during the genocide before trial, deficiencies in handling witnesses during the investigation and trial stages, and delays affecting the delivery of justice to survivors. These deficiencies must be addressed and corrected in order to maintain the Tribunal’s legitimacy, protect women’s human rights, and build upon the jurisprudence condemning rape warfare as genocide. An assessment of the ICTR’s deficiencies is especially timely given that the tenth anniversary of the genocide occurred in April 2004. Although the Akayesu conviction and the Nyiramasuhuko prosecution have significant precedential value, the problems encountered by the ICTR in indicting and prosecuting gender-based violence should be lessons for future prosecutions in the international community. (16) Recognition of rape as a serious war crime represents only the first step in creating the deterrent necessary to combat future impunity. Assessing the past in order to improve the effectiveness of future prosecutions for rape warfare is imperative as women of all ages, races, colors, creeds, and ethnicities continue to be raped during armed conflicts. (17) Effective prosecutions will lead to more convictions, which will in turn translate into a legal vindication of women’s human rights in the international community. (18) This article argues that while the ICTR has established an important precedent in prosecuting gender-based violence as crimes against humanity and tools of genocide, its deficiencies illustrate the continued straggle to enforce international norms protecting women from violence during armed conflict. (19) Without improvements in three specific areas, the potency of the ICTR’s groundbreaking decisions will become diluted and less likely to be applied by other legal bodies, to further the objective of enforcing women’s human rights, and to lead to greater deterrence of gender-based violence. Part II of this article discusses the gender-based violence that occurred during the 1994 Rwanda Genocide and addresses the historic ambivalence toward prosecuting rape as a war crime or crime against humanity. This ambivalence demonstrates a lack of implementation and enforcement of the legal norms protecting women’s human rights. (20) Part III emphasizes the significance of the first international conviction of rape as a condemnable war crime, while highlighting the need for improvements in order to ensure more effective prosecution of gender-based violence. The cases of two prominent Rwandan officials–Akayesu and Nyiramasuhuko–are discussed in this regard. Part III also explains how the ICTR’s progressive precedent on sexual violence is being tarnished by the Tribunal’s continuing failure to adequately indict perpetrators for commission of gender-based crimes, a widening divide between the need for legal justice and survivors’ interests, and excessive delays that are diluting the credibility of legal justice as a deterrent. Part IV concludes with three major recommendations to the ICTR directed at improving the Tribunal’s prosecution of gender-based violence and preserving its legitimacy as a source of international condemnation and deterrence. II. BACKGROUND While violence against women occurs every day worldwide, (21) women are particularly vulnerable to gender-based violence (22) during armed conflict. (23) International norms (24) protect women from gender-based violence in theory, (25) but adequate norm development requires implementation and enforcement by the international community in order to transform theory into practice. (26)