Rape of Women As A Weapon of War: A Comparative Study of The Rwandan and Congolese Armed Conflicts. by Aurélie Pierre

Rape of women as a weapon of war: a comparative study of the
Rwandan and Congolese armed conflicts

A thesis in partial fulfillment of the requirements for the degree of Master in
Laws (L.L.M)

University of Dublin, Trinity College

2013

Aurlie Pierre
1

Declaration
This thesis has not been submitted as an exercise for a degree at this or any
other University.
I agree that the work described herein is entirely my own.
I give permission to Trinity College Library, Dublin to lend or copy this thesis
upon request. This permission covers only single copies made for study
purposes, subject to normal conditions of acknowledgment.

Signed:
Aurlie Pierre

2

Acknowledgments

I am heartily thankful to my thesis supervisor, Professor Colin Smith, for all
his help and guidance throughout the year.

I would like also to thank Kelley McCabe for her kind help and for making this
year so enjoyable.

To my parents, I owe the most profound and eternal gratitude for the
unflagging support and encouragement that they have provided over the years.
I also wish to thank my friend, J ulie Kennedy for all her moral support and her
huge help this year. Thank you for making this year so special.

3

Summary

The subject matter of this dissertation concerns gender-based violence in the
African region of the Great Lakes. I have chosen to focus my work on Rwanda
(during the 1994 Genocide) and the Democratic Republic of Congo (DRC)
(since 1998) where sexual violence has been used as weapon of war against the
civilian population. Indeed, with the study of the causes, scope and
consequences, I intended to produce an overview of what constituted rape as a
weapon of war and what were the gaps in the international criminal and
humanitarian law in the subject. Indeed in both countries, international and
national judicial remedies have been used, namely the ad hoc Tribunal for
Rwanda, the International Criminal Court and the Rwandan and Congolese
domestic courts. In my opinion, both have failed to prosecute sexual violence
in the region.
Several reasons can explain that result. While one can wonder whether the
failure to prevent those events is caused by a lack of appropriate legal
instruments that sanction those crimes, I personally doubt so. In my opinion
the real matter is the implementation of those legislations. I found that with a
strong political will to prosecute those crimes, legislations can be used
efficiently to sanction sexual violence. Though, preventing rape on a mass
scale as it occurred in the region is a different matter. Indeed, several causes
had been given to explain the mass instrumentalization of rape in those
countries. First, I have noticed that national sources of powers lacked the
political will to prosecute those crimes considered as less serious than others.
Then, even when political ringleaders said that they were willing to punish
sexual offenders and prevent further sexual violence in their countries,
corruption and foreign involvement barred their efforts. Thirdly, international
and national judicial actors were not efficiently trained to deal with sexual
survivors. Finally and most importantly, there is in those States a generally
socio-cultural context that facilitates rape. Women and men have their
expected roles in the community.
I therefore, agree with the scholars view that preventing rape will only be
possible if gender-based role expectations are evolving in a way that is
favorable to women. Most of the current domestic legislations are sanctioning
rape but does not prevent them. The future legislation should facilitate the
reassignment of gender roles in the society and the perception of womens
sexuality. Therefore, rape would not be perceived as an efficient tool to attack
and weaken a community or a group or as an attack against mens property.
Besides, security forces in both countries should be given the means to work
efficiently to prevent further attacks against civilians and to punish sexual
4

offenders within their own forces. Finally, the recent events on the DRCs soil
show the role of the economy in the resolution of the Congolese crisis and the
need to end corruption in the country. The culture of impunity has made the
prosecution of sexual offences very difficult if not impossible in some parts of
Congo. This is directly the cause of security threat in those regions. Indeed,
mass rape is used as a tool to weaken and disorganize the civil society and
therefore its judicial system and security forces. Those weakened
infrastructures are incapable of performing their tasks efficiently. More
precisely, sexual violence is not prosecuted and the region is placed in vicious
circle in which armed forces are inefficient to protect civilians and the J ustice
is not performed.

5

Table of Contents

Chapter 1: Introduction 8
1.1 Introduction 8
1.2 Context 13

Chapter 2: 1994- Rwandan armed conflict and the sexual violence of
women 19
2.1 Introduction 19
2.2 The Historical background of Rwanda 21
2.2.1 The roots of the ethnic divide 21
2.3 The Nature and the Scope of the Sexual Violence faced by women during
the Conflict 24
2.4 The International Criminal Tribunal for Rwanda (ICTR) and the
prosecution of sexual violence 26
2.4.1 The relevant binding law regarding sexual violence in Rwanda and the
competence of the ICTR 29
2.4.2 The earlier ICTRs setbacks regarding the investigation and the prosecution
of rape: a reflection of the international political lack of interest on the issue? 31
2.4.3 The recent trend of the ICTR concerning gender- based violence in Rwanda
41
2.5 The Gacaca Court and the domestic Courts issues 53
2.5.1 The Official Goals of the Gacaca Court 54
2.5.2 Its Operation 55
2.6 The domestic remedies: success or failure for the transitional J ustice? 61
2.7 Conclusion 64
Chapter 3: Sexual Violence in the Democratic Republic of Congo 66
3.1 Introduction 66
3.2 Sexual violence in the DRC since the outbreak of the civil war 68
3.2.1 The hypothetical causes of sexual violence in the DRC 70
6

3.2.2 The medical, psychological, socio-economic and judicial consequences of
sexual violence in the DRC 77
3.3 The Legal Framework of the conflict in the DRC 80
3.3.1 In international Humanitarian Law 81
3.3.2 In International Human Rights Law 86
3.3.3 In Congolese national law 90
a) The military J ustice 90
b) The Congolese criminal Law 92
3.4 The Management of the crime by the Congolese Public Authorities 94
3.5 The consequences of the ratification of the Rome Statute for the Congolese
legislation and judiciary system 100
3.6 The ICC proceedings for the DRC 103
3.7 The controversial interference of international actors in the conflict 104
3.8 Conclusion 107
Chapter 4: A comparative study of Rwandan and Congolese issues 108
4.1 Introduction 108
4.2 The perception of sexual violence in Rwanda and the DRC 108
4.3 The causes and consequences of sexual violence in the region since 1994
110
4.4 The international and national reactions to the mass sexual violence in the
region 113
4.5 Conclusion 117
Chapter 5: Conclusion 118
Bibliography

7

Chapter 1: Introduction
1.1 Introduction
Every year, more than a million rapes are reported worldwide
1
. Though, rapes
are rarely recorded as most of the victims choose to keep silent. Thus, it has
been estimated that worldwide one in five women will be victim of rape or
attempted rape in her lifetime.
2

Whether in time of peace or in time of armed conflict, rape is widely practised
and often not prosecuted giving the impression that it is considered to be a less
important crime. That is even more true when we study armed conflicts. Then,
it is often considered as one of the sides effects. In fact, throughout history,
rape has been seen as an expected, even inevitable aspect of war. The raping of
women in conflict already occurred in ancient Babylon where rape was
considered a reward for soldiers for their victories and as an effective tool to
humiliate the defeated.
Even nowadays, most fighters and some civilians believe that it is a common
feature of warfare. According to them, the general context of violence and/or
the disorganization of the army are the two main causes of rape. In fact, it is
considered not surprising that sporadic act of violence against civilians happen
and sometimes sexual violence (as the normal societal controls are suspended).
1
See United Nations Office on Drugs and Crimes (UNODC).
2
Mara Jos Alcal, Ltat de la population mondiale 2005. La promesse dgalit : galit
des sexes, sant en matire de procration et objectifs du Millnaire pour le dveloppement
(The state of the worlds population 2005. The promise of equality : gender equality, health in
procreation and objectives of the Millenium for the growth) (UNFPA, 2005) at 65.
8

While a lot of research has been done on rape, scholars often distinguish
gender-based violence occurring in time of war and those happening in
communities that do not suffer daily mass violence. Most of the researches try
to explain the individual reasons for those crimes and the social stigma
associated with this form of violence. In both situations, researchers try to
explain why the victims do not go to Court. For a while most of the studies
focused on violence that was not widely practised by the masses. Over time it
could have been hoped that effective legislations would have been drafted to
prevent those acts. Nonetheless, the recent conflicts occurring in particular in
Africa have revealed a new form of violence: mass rape and more precisely the
use of rape as a weapon of war. Gender-based violence in that context is
instrumentalized to serve a political aim: to weaken the enemy. Instead of
disappearing it seems that sexual violence has become a popular and efficient
instrument of warfare.
Therefore, one can wonder if the current international and domestic legislation
sanctioning gender-based violence is efficient to deter and punish the
offenders.
In my opinion, the horrendous acts committed during the last two decades in
the African region of the Great Lakes is a particularly good example to
demonstrate the inefficiency of international Humanitarian Law to prevent
mass rape. Thus, I have chosen to base my work on two countries: the
Democratic Republic of Congo (DRC) and the Rwanda. Indeed, the study of
those two States reveals that all the battles that occurred in the region are
interrelated and have common features. Both countries have known gender-
based violence as a new weapon of war to destroy the social cohesion of the
9

enemy group. In both cases, several judicial instruments had been used to
eradicate this form of violence and stop the conflicts.
Thanks to the work done by international instances such as the International
Criminal Court (ICC) or the ad hoc Tribunals, it has been possible to get a
general overview of the remaining challenges and improvements required in
law in the area. Besides, national solutions have been thought such as the
Gacaca and the creation of mobile courts.
Moreover, thanks to the media, the International Community is now aware of
these events and has put pressure on the International organizations to
prosecute sexual violence. Recently, that led the UN Security Council to adopt
a resolution denouncing the use of rape as a weapon of war
3
.
It has been argued that international regulation is rarely respected in regards to
gender- based violence. Several reasons had been advanced to explain this
phenomenon such as the impunity of the perpetrators or the absence of political
will to treat these crimes as serious ones. Notwithstanding, by noting that rape
is a war crime and a crime against Humanity, it is expected that it will strive a
blow at the culture of impunity that surrounds sexual violence.
4

Thereby, I believe that the legislative prohibition of rape alone is not enough to
provide an efficient tool to prevent gender-based violence whether in time of
peace or in time of war. Indeed without the media and the politics to pressure
for a redirection of the law and the prosecution of those crimes, the resolution
of this problem is unlikely to happen.
3
See UN Resolution 1820 (2008) enacted on the 19
th
of J une 2008.
4
OHCHR, Rape: weapon of War United Nations Human Rights (UNHR) Office of the High
Commissioner for Human Rights (2008) <
http://www.ohchr.org/en/newsevents/pages/rapeweaponwar.aspx>accessed on J une 2013.

10

Therefore, in order to know which sets of tools would be the most efficient to
hamper mass rape during warfare, I have chosen to organize my study as
follows:
- First I will explain the general context in which those crimes happened
in the region,
- Then I will study the situation in Rwanda since 1994 and its implication
in the Congolese conflict that started officially in 1998. In doing so, I
will summarize the scope and nature of the sexual violence in both
States and the International and national remedies that have been
thought.
- Finally, I will compare and contrast both situations and conclude on
what solutions had been the most successful to eradicate rape and
prosecute the offenders and practises that should be avoided in the
future.

11

1.2 Context

Figure 1
5

Recently, the M23, a rebel armed group in the DRC has been the subject of
some media coverage for its invasion of the eastern part of the Congolese
territory. That raid happens in a country that has been victim to regular acts of
violence for two decades now.
More recently, in April 2012 the M23
6
started a new rebellion during which it
invaded Goma and has been held responsible for war crimes against the
5
Catherine Bekunda, Pases da regio dos Grandes Lagos africanos se compromete em
perseguir rebeldes (The States of the Great lakes region agree to pursue rebels) (New Vision,
15 December 2011) <http://isape.wordpress.com/2011/12/15/paises-da-regiao-dos-grandes-
lagos-africanos-se-comprometem-em-perseguir-rebeldes/>accessed on 28/05/2013.

12

civilians. Indeed, according to Human Rights Watch, M23 fighters have been
responsible for deliberate attacks on civilians, summary executions, rape and
forced recruitment of children.
7

In December 2012, the UN Security Council in its Resolution 2076 asked the
M23 forces to retreat immediately from Goma and to surrender without any
further violence against the civilians. This resolution clearly states that the
Security Council was ready to take sanctions against external supports such as
the Rwandan forces.
8
The recent events are just holding true to a familiar
pattern in which Rwanda has played a major role in the conflicts affecting the
country for the last twenty years.
As mentioned earlier, several militia groups such as the M23 claim to be
defending the interests of the Tutsi minority on the Congolese territory against
Hutu militia members who had fled from Rwanda after the 1994 Genocide.
The 4
th
of J uly 1994, the Rwandan Patriotic Front (RPF) took over Kigali and
formed a government based on the Arusha Agreements. One of the main
figures of this new Tutsi dominated Government is Paul Kagame who would
later become the President of Rwanda. Then, some of the Hutu Genocidaires
fled to their neighbouring State: Zare.
9
There, they created rebels militias.
Those would bring even more disturbance within the area which has been the
6
The M23 rebel group, named after a March 23, 2009 peace agreement, took control of Goma
on November 2012.
7
Human Rights Watch, DR Congo: War Crimes by M23, Congolese Army Response to Crisis
in East Should Emphasize J ustice (Human Rights Watch report February 5, 2003)
<http://www.hrw.org/news/2013/02/05/dr-congo-war-crimes-m23-congolese-army> accessed
on 28 May 2013.

8
Ibid.
9
Zare was the former name of the actual Democratic Republic of Congo until 1997.

13

subject of quarrels over its resources since the end of the Belgian colonial
empire.
Indeed, the DRC has been strangled by conflicts since Mobutus takeover in
1965. At that time, the President used propaganda to foment the idea that the
Congolese State should fight the colonialism, re-appropriate the economy and
distribute fairly the wealth of the country that past colonizers had stolen. In
1994, Mobutus regime, which had welcomed the Rwandan Tutsi refugees, is
considerably weakened by conflicts crossing the DRCs territory (especially
Hutu Rwandan rebels and Angolan militias). In 1996, the conflict situation in
the country was hardly manageable for the President who was severely ill.
In 1996, the pretended threat posed by the rebels Hutu militias, both to border
security, but also to Congolese Tutsi, led Rwanda and Uganda, to invade Zare.
Later they backed the coup led by Laurent Dsir Kabila who will later become
the new President of the DRC.
Nevertheless, Kabilas relationship with his associates quickly soured. To
counter accusations that he was to dependant of the Rwandan government,
Kabila decided to dismiss his Rwandan staff and expelled all foreign troops
from Congolese soil. Later, he relied more on the western countries than in the
Alliance that previously supported him. That led the latter to foment a new
coup that failed thanks to the support of Zimbabwe and Angola. Both of them
had an interest in the Congolese mineral resources located in the eastern
Congo. After this defeat, the allies (Rwanda and Uganda especially) began to
provide support to anti-government groups in the eastern regions of the DRC.
These rebels groups were constantly fighting the Laurent Kabila government
14

and these battles led to the creation of new rebel groups, known as Mai Mai to
defend their local territory from all of the actors involved.
10

By 2000, some of the Rwandan rebels who had moved to the DRC in 1996 had
assembled and formed the Democratic Forces for the Liberation of Rwanda
(FDLR). Using the security threat on their border that those groups
represented, the Rwandan military forces become more and more involved on
the Congolese territory, especially by providing help to the rebels. Often, the
Kinshasa governments inability to provide effective security in the Kivu
against these groups has been used to justify the use of Rwandan forces.
As it will be explained later on, the causes of the conflicts that started in 1998
in Congo are numerous. While officially, militias claimed to defend their
ethnic group (either Hutu or Tutsi)
11
and criticized the former President Kabila,
to be the toy of the Rwandan forces that helped him to take the power: in
reality, most of the strifes are directly linked to the diamond mines located in
eastern Congo. These resources also explained the participation of the DRCs
neighbours in the Second Congo War.
12

Therefore, in J uly 2002, the Pretoria Accords were signed to stop the fights
between the different militias over the Congolese mineral resources. Under
those agreements Rwandan forces were supposed to stop their involvement in
the quarrels concerning the diamonds mines. Since, its government has
10
For more details see Human Rights Watch, Struggling to Survive: barriers to J ustice for
rape victims in Rwanda Human Rights Reports Vol. 16, No. 10(A (September 2004), at 3.
11
National Congress for the Defence of the People, (CNDP) is a rebel group formed in 2007 by
Laurent Nkunda. It controlled large parts of North Kivu until 2009. It claimed to defend the
Tutsi minority. Most of the members of the CNDP have incorporated the M23.
On another hand, the Democratic Forces for the Liberation of Rwanda (FDLR) counts former
Rwandan genocidaires amongst its members. It targets Congolese Tutsi communities and
hopes, someday, to return to power in Rwanda.
12
The second civil war (hereinafter Second Congo War started in 1998 and officially ended
in 2002.
15

repeatedly denied providing support to the rebels and more precisely to the
M23.
13
Nevertheless, NGOS
14
state that the M23 has received significant
support from the Rwandan military since the groups inception. The
involvement of the States forces includes the supply of military equipment but
also the training of rebels.
15
In doing so, they also helped them to commit war
crimes such as the forced recruitment of children in the rebellion.
16

Also, recently, M23 forces have been held responsible of sexual violence
towards the civilian population of Goma and its suburbs.
17
However, the rebels
are not the only ones accused of such crimes. The same organization claims to
have been able to report 76 rapes committed by the Congolese army soldiers in
November 2012 in eastern part of the DRC.
18
The victims included women as
old as 60 and girls as young as 13. The total number of victims is probably
much higher since many women were afraid to report being raped or to seek
medical assistance.
19

Today, parallel discussions are hold by several African countries and the UN to
resolve the conflict. These include a proposal to deploy an African-led
intervention brigade to operate within the UN peacekeeping force in Congo,
13
Human Rights Watch, DR Congo: War Crimes by M23, Congolese Army Response to
Crisis in East Should Emphasize J ustice (February 5, 2003)
on 28 May 2013.
14
Ibid.

15
Ibid.
16
Ibid.
17
Ibid.
18
Ibid.
19
Ibid.
16

MONUSCO.
20
21
This approach to resolve the conflict is another element
showing the international aspect of the conflict affecting the DRC. Indeed, the
situation in the Congolese territory is just one more example of the general
violence that strangles the area since the early 1990s. Namely, Uganda,
Rwanda, the DRC had been involved in crises that have led to an
unprecedented number of sexual violence in the region. Thus, the more recent
events show the interrelations between the conflicts that have taken place there
and more precisely the influence played by the Rwandan conflict in the
Congolese one. Therefore, it seems relevant to first relate the Rwandan
Genocide and its consequences both at a national level and at the international
one. Then, this paper will discuss on the proposed solutions to the issues raised
by the mass sexual violence in Rwanda: one of them being the prosecution of
the offenders. Those will later be compared to the approach taken in the DRC
facing also mass rape.

20
MONUSCO, Mission de l'ONU pour la stabilisation en Rpublique Dmocratique du Congo
(United Nations Organization Stabilization Mission in the Democratic Republic of Congo),
previously MONUC.
21
Human Rights Watch, DR Congo: War Crimes by M23, Congolese Army Response to
Crisis in East Should Emphasize J ustice (February 5, 2003)
on 28 May 2013.
17

Chapter 2: 1994- Rwandan armed conflict and the sexual violence
of women

Figure 2
22

2.1 Introduction
Widespread and systematic violence impregnated the genocide in Rwanda in
1994 where around 250,000 women had been raped, victims of sexual slavery,
sexual mutilations and forced impregnations.
23
In response to this conflict, the
22
Human Rights Watch, Rwanda, Justice Compromised: The Legacy of Rwandas
Community-Based Gacaca Courts Human Rights Report (4 May 2011) at 1.
23
Heidi Nichols Haddad, Mobilizing the Will to Prosecute: Crimes of Rape at the Yugoslav
and Rwandan Tribunals (2011) 12 Human Rights Review 109 at 110; see also See Human
Rights Watch, Struggling to Survive: barriers to J ustice for rape victims in Rwanda Human
Rights Reports Vol. 16, No. 10(A (September 2004) at 7.

18

International Criminal Tribunal for Rwanda (ICTR) was created in order to
charge the perpetrators of crimes committed, including rape. However, rape
has not been the central focus of the Tribunals prosecution strategy which led
to a sporadic approach to the gender-sensitive investigative procedures,
inconsistent rape indictments, and few successful prosecutions.
24

Indeed, in 1998, only five successful convictions for rape had been sentenced
and thirteen unsuccessful rape cases were prosecuted in years.
25
According to
Heidi Nichols Haddad, after three years of work the ICTR finally made its
first rape indictment in the Akayesu case
26
- the first successful prosecution of
rape as a Genocide crime which expanded the definition of rape and
represented an historical achievement of the ICTR.
27
Unfortunately, it is also
said that it has been the only one which concerns sexual offences prosecutions
before the Court
28
.
Meanwhile the International Court failed to cope with the prosecutions of
sexual offences, Rwandan Government and society and had to deal with the
issues raised by the mass atrocities and in particular with the issue of mass
sexual violence. Therefore, it can be questioned what kind of approaches could
be taken by a State or the International Community to address mass sexual
24
and Rwandan Tribunals (2001) 12 Human Rights Review 109, at 110.

25
Ibid.

26
Prosecutor v. Jean- Paul Akayesu, ICTR- 96- 4- T, (ICTR September 2
nd
1998).
.
27
28
Ibid.

19

violence in order to rebuild the social trust and construct a democratic State of
governance. Which gaps in the international protection of women had been
revealed from the ICTRs failure to prosecute rape?
In order to answer these questions, this paper will first, present a general
overview of the situation in Rwanda. After having briefly explained Rwandan
historical background which led to the 1994 -Genocide, I will recount the
nature and scope of the sexual violence that women had to face during
Genocide and then focus on the work of the international and national Courts.
2.2 The Historical background of Rwanda
29

2.2.1 The roots of the ethnic divide
Nowadays, the population of Rwanda is mainly divided into two groups: the
Hutu and the Tutsi which are said to be two different ethnic groups. As it is this
famous distinction that led to the mass murder of the Tutsi in 1994, it seems
relevant to explain the causes of this differentiation.
Before the colonization, the Rwandan population was divided into clans and
later kingdoms.
30
. Despite the fact that they were fewer than the Hutus, the
Tutsis represented the nobility and therefore ruled the country. Thus from the
18
th
century, Tutsi kings centralised the power and enacted anti- Hutu
policies.
31
The distinction between the two groups remained until the end of
the 19
th
century. At that time, it was still possible to move from a group to
another thanks to financial agreement or marriage.
32
With the colonial era the
29
For more details See Prosecutor v. Jean- Paul Akayesu, ICTR- 96- 4- T, (ICTR September
2
nd
1998) at [2. HISTORICAL CONTEXT OF THE EVENTS IN RWANDA IN 1994].
30
Ibid.
31
Ibid.
32
Ibid.
20

situation changed. From 1884 to 1930 Germany occupied Rwanda and
established the Tutsis as the indigenous elite because of their similarities with
them.
33
In 1930, Belgium succeeded to Germany and reinforced the distinction
by reserving benefits to the preferred group.
34
In 1959, the Hutu population,
fed up with this discriminatory distinction, revolted and eventually established
an independent State in 1962. The liberation did not occur without blood.
Indeed, Tutsis were massively killed. At that time, political parties spread
pejorative rumours against the other group perceived as a different ethnie.
35

Later in 1990, the Tutsi-led RPF launched a civil war during which Hutu
propaganda campaigns were developed against Tutsis. By 1994, groups
perceived each other as separate, ethnic enemies.
36
That year, the assassination
of Rwandan Hutu President conducted Hutu to the mass killing of the Tutsis.
Indeed, within hours, the Hutu extremists seized control of the government and
military and started to execute the political elite and opponents. Those
extremists, assisted by the members of the army, militias and ordinary citizens,
led a genocidal campaign against the Tutsis during the following months.
Finally, coming from the Uganda, the RPF won back the Rwandan territory
and restored peace. Two decades later they are still in power in the State.
37

Many Rwandan citizens took part in the 1994- Genocide. Some of those were
later judged before the ad hoc Tribunal for violation of international law
principles.
33
Ibid.
34
Ibid.
35
Emphasis added.
36
See note 29.

37
Community-Based Gacaca Courts (Human Rights Watch Report No. 1-56432-757 May
2011).
21

Indeed, Rwanda is a member of and has ratified the 1949 Geneva
Conventions
38
and their additional Protocols.
39
But it has also ratified several
Conventions which are relevant in those circumstances such as the Convention
on the Elimination of All Forms of Discrimination against Women (1979) and
its Optional Protocol of 1999 and finally the United Nations Convention on the
Rights of the Child of 1989. In that context, Rwanda was bound to protect
civilians against direct attacks, and particularly women and children against
sexual violence, rape, torture, genocidal measures Initially, the work of the
Court had been largely criticised, especially regarding the prosecution of
sexual violence. Thus, to assess whether these criticisms were justified I will
analyse the kind of violence that occurred then.
2.3 The nature and the Scope of the Sexual Violence faced by women during
the Conflict
One of the particular aspects of the conflict was the use of rape as an act of
warfare to humiliate and eradicate Tutsis. In order to do so, many rapes were
done in public; many women and very young girls were killed in the process,
or were raped collectively until they got pregnant.
40
Many Tutsi women were
used as sexual slaves by the Hutu militia until they gave birth to the child.
41
As
the child is identified in the lineage of their fathers, the children born out of
rape by Hutu militias are considered as Hutu and perceived today as the
38
For more details see its common article 3.
39
Rwanda ratified the Additional Protocol II to the Geneva Conventions of the 12 August
1949, the 11th November 1984 and so was bound under its article 4 and 13 providing for
fundamental guarantees and the protection of the civilian population in a non-international
armed conflict.

40
African Rights, RWANDA Broken Bodies, Torn Spirits, Living with the Genocide, rape
and HIV/AIDS (AFRICAN RIGHTS Work paper 2004) at 4.

41
Ibid.
22

children of the enemy by the mothers communities.
42
Sexual violence was
directed against Tutsi women because of both their ethnicity and their gender.
According to academics, the sexuality of Tutsi women was perceived as a
means to infiltrate and control the Hutu community. Therefore, rapes were
committed to dehumanize and subjugate all Tutsis.
43
This explains the
genocidal mass rapes which occurred and that had been related in several
reports. For instance, in 1996 the Special Rapporteur of the United Nations
(UN) Commission on Human Rights, Ren Degni-Sgui, stated that rape was
used as a weapon of war
44
against women aged 13 to 65 and that neither
pregnant women nor women who had just given birth were spared, that it was
systematic and constituted the rule and its absence, the exception
45
[..] and:
[I]n the hundred days of the genocidal nightmare, an estimated
250,000 women were raped or forced into sexual slavery. Human-
rights investigators and aid workers reported how women told them
almost all the rapes occurred after the victims had been forced to
watch their entire families cut down. You alone are being allowed to
live, women were frequently told, so that you die of sadness.
Many of the victims died because their bodies were so badly torn
after repeated rapes in which sharpened sticks, gun barrels or boiling
water often replaced penises, Women in late- stage pregnancies or
those who had recently given birth did not escape. Others died
42
Ibid.
43
Bifaifer Nowrojee, SHATTERED LIVES Sexual Violence during the Rwandan Genocide
and its Aftermath (Human Rights Report September 1996),
<http://www.hrw.org/legacy/reports/1996/Rwanda.htm>accessed on 29 May 2013.
44
Emphasis added.
45
Bifaifer Nowrojee, SHATTERED LIVES Sexual Violence during the Rwandan Genocide
and its Aftermath (Human Rights Report September 1996) <
http://www.hrw.org/legacy/reports/1996/Rwanda.htm >accessed on 29 May 2013 citing Ren
Degni-Segui Special Rapporteur of the Commission on Human Rights, at [note 37].
23

because their attackers tried to gouge their genitalia or otherwise
sexually mutilate them with machetes after raping them. Still more
die later of AIDS.
46

Some Hutu women were also targeted because of their supposed protection of
Tutsi or because they had married a Tutsi. The forms of gender-based violence
were varied. It included, individual rape, gang-rape; rape with guns or other
objects, sexual enslavement and sexual mutilation.
47
Most of the women and
girls raped by the Hutu militia or the army forces were killed afterwards or
seriously injured. Besides, they often had to witness the torture and murder of
their families before being abused. Many of the victims, who had not been
killed, contracted HIV/AIDS. Indeed, soldiers infected them deliberately as a
part of the genocidal campaign. The massive use of rape is one of the main
aspects of the conflict in this State and leaves a lot of challenges for the
Rwandan society and the International one.
Indeed, in a State where thousands of people died because of an armed conflict,
it is quite usual that the new Government cannot cope with all its consequences
and foreseeable prosecutions of perpetrators while almost all its infrastructures
have been destroyed. It is even made more complicated when the former
government has been held responsible for mass atrocities and there is a huge
need for vetting in the public services and security forces. Then International
Instruments can play a role in the process of Transitional J ustice in order to
46
Ibid.
47
Obote- Odora, Rape and Sexual Violence in International Law: ICTR Contribution (2005)
12.1 NEW ENG.J .INTL & COMP. L 134 at 137; See also Bifaifer Nowrojee, Shattered
Lives: Sexual Violence during the Rwandan genocide and its aftermath, (Human Rights
Watch Report, September 1996), <http://hrw.org/reports/1996/Rwanda.htm >accessed on May
2013.
24

support the new Government to promote a reconciled democratic society based
on relations of trust among its citizens.
One of the international means which had been thought was the creation of an
ad hoc Tribunal, namely the ICTR. It is settled in Tanzania and has been
created to deal with the crimes which occurred in Rwanda in 1994 (leaving
aside the crimes which happened in the refugees camps from 1995 to 1998).
2.4 The International Criminal Tribunal for Rwanda (ICTR) and the
prosecution of sexual violence
In the aftermath of the conflict the Rwandan government had a lot to deal with,
especially regarding the prosecutions of individuals suspected of crimes,
Genocide and crimes against Humanity. Besides, regarding the character of the
conflict, it can be wondered whether the national administration would have
been perceived by the population as the most legitimate agent to deal with it
and therefore, whether an internationalised approach would not be preferable.
Unfortunately, in the Rwandan case, the involvement of the international
community has been highly criticised.
Therefore, this paper will concentrated first on the ICTR approach to sexual
violence and then to the national solutions proposed by the Rwandan
Government. The numerous critics that both jurisdictions have created should
be highly demonstrative of the disrespect of the international and national legal
instruments sanctioning sexual offences. Thus, this should bring us to the
second part of the study concerning the remaining challenges of the law
regarding the protection of women against sexual violence.
25

In 1994, Rwanda had signed and ratified the 1949 Geneva Conventions and its
1977 Protocols.
48
By virtue of these texts, the State shall protect all the
civilians against acts contrary to the Treaties such as torture, attacks upon
bodily integrity, genocide during an armed conflict, whether of an
international character or not.
49
In cases of violations of those principles, the
State has a duty to prosecute individuals liable of such acts and to punish those
held guilty. In regards to the huge amount of possible prosecutions, the
Rwandan State considered in 1994 that it would not be able to fulfil its
obligations. Indeed, additional to its obligations under International
Humanitarian Law Treaties, Rwanda was bound under International Human
Rights Law, especially concerning the protection of Women against violence
because of its ratification of the Convention on the Elimination of all forms of
discrimination against Women (CEDAW) and the Genocide Convention.
50

Unable to perform its obligations it called for international support.
Thus, at the request of Rwanda, the Security Council of the United Nations
(UN) acting under Chapter 7 of the Rome Statute, established the ICTR for the
prosecution of persons responsible for Genocide and other serious violations of
International Humanitarian Law committed in the territory of Rwanda and
Rwandan citizens responsible for genocide and other such violations
committed in the territory of neighbouring States, between 1 J anuary 1994 and
48
See infra, [The relevant binding law regarding sexual violence in Rwanda and the
competence of the ICTR] at 21.
49
Rwanda has ratified the Additional Protocols I and II to the 1949 Geneva Conventions
concerning the Protection of civilians during an international armed conflict the 19.11.1984.
50
Rwanda ratified the CEDAW the 02.03.1981.
Besides, Rwanda has ratified the Convention on the Prevention and Punishment of the Crime
of Genocide the 16.04.1975. Under its article 1 the contracting parties are bound in time of
war or in time of peace to protect individuals under its jurisdiction against the crime of
Genocide and to punish its perpetrators. It can be notice that at the time of the conflict,
Rwanda was not yet party to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (10.12.1984).
26

31 December 1994. This Tribunal shall function in accordance with the
provisions of its Statute. Here, the ICTR had been created and implemented in
Tanzania in order to prosecute people liable to crimes against Humanity,
Genocide, torture and war crimesIts Statute defines in its article 2 and 3 the
crimes of Genocide
51
and Crime against Humanity.
52
Regarding those
definitions it should be established that sexual violence ought to be prosecuted
before the International J urisdiction if committed by Rwandan nationals during
the armed conflict. Moreover, the Tribunal applies the principle of
51
Under the article 2 of the Statute, the crime of Genocide has been defined as follows:
2.Genocide means any of the following acts committed with intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as such:
a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the group;
c) Deliberately inflicting on the group conditions of life calculated to bring
about its
physical destruction in whole or in part;
d) Imposing measures intended to prevent births within the group;
e) Forcibly transferring children of the group to another group.
3.The following acts shall be punishable:
a) Genocide;
b) Conspiracy to commit genocide;
c) Direct and public incitement to commit genocide;
d) Attempt to commit genocide;
e) Complicity in genocide.

52
Under article 3 of the Statute for the ICTR, crime against Humanity has been defined as
follows:
The International Tribunal for Rwanda shall have the power to prosecute persons
responsible for the following crimes when committed as part of a widespread or
systematic attack against any civilian population on national, political, ethnic, racial
or religious grounds:
a) Murder;
b) Extermination;
c) Enslavement;
d) Deportation;
e) Emprisonnent;
f) Torture;
g) Rape;
h) Persecutions on political, racial and religious grounds;
i) Other inhumane acts.

27

complementarity wherein Rwandan J urisdiction shall prosecute serious
violations of International Humanitarian Law in cases where the ICTR did not
already started prosecutions for the same crimes.
But, while rape was one of the main aspects of the genocidal campaign
occurring in Rwanda, initially the Court did not conduct a gender-sensitive
approach to the prosecuted crimes. Thus, after having studied the ICTRs
jurisprudence and so recall that the adequate sources of law existed at that time
to charge the offenders, it will be studied why originally, the Tribunal failed to
prosecute gender-based violence. At last, this paper will focus on the influence
of the mediatisation of these failures on the ICTRs work since then.
2.4.1 The relevant binding law regarding sexual violence in Rwanda and the
competence of the ICTR
The study of the international Humanitarian and Human Rights Law reveals
that when committed on as mass scale, sexual violence offences are explicitly
identified as one of the crimes against humanity.
53
Indeed, any attack or rape
against civilians during armed conflict is a war crime under International
Humanitarian law. Sexual violence is also considered to be an act of torture by
the ad hoc Tribunals.
54
Moreover the International Tribunal for the Former
Yugoslavia (ICTY) expended the definition of torture to act committed by non-
officials in a non-international armed conflict as in Rwanda in the context of
crime against the humanity when it is accompanied by other acts as degrading
53
Aydin v. Turkey Communication 23178/94 (ECtHR, 25 September 1995) [86].

54
Prosecutor v. Jean- Paul Akayesu, ICTR- 96- 4- T, (ICTR September 2
nd
1998), [597].

28

treatments, mutilations...
55
Sexual violence, including rape can be a crime
under the Convention on the Prevention and Punishment of the Crime of
Genocide (Genocide Convention)
56
if committed with the intent to destroy, in
a whole or a part, a national, ethnic, racial or religious group through killing or
seriously bodily harm
57
. Thus, given the precedent elements, it seems that in
1994 there was already legal basis to prosecute rape before the ad hoc
Tribunal.
58
Therefore, it can be wondered why the prosecutor did not pursue
those responsible for the crimes while the relevant texts existed and had been
ratified by the concerned State?
Some academics raised the matter of the implementation of these texts to the
Rwandan situation arguing that Hutu and Tutsi did not form different ethnies.
This questioning led to the landmark case of the Tribunal
59
which provided
that the Tutsi constituted a protected group against Genocide. Indeed,
according to the J udges, Tutsi and Hutu shared a religion, nationality and
race
60
. They also had a common language and culture although they were not
technically different ethnical groups. But, the Court recognized that the
Convention did not limit its protection to the four enumerated groups but to
any group, similar in terms of stability and permanence.
61
Such a group
membership must be determined by birth and in a continuous and often
55
Prosecutor v. Zejnil Delalic and others No. IT- 96-21-T (ICTY 16/11/1998), [473]
56
Convention on the Prevention and Punishment of the Crime of Genocide (Paris, 09.12.1948).
57
See Akayesu Trial J udgment, note 26 and see also Prosecutor v. Furundija, Case No. IT-95-
17/1-T, (ICTY J udgement, 10 December 1998). In the latter, the ICTY recognised that Rape
may also amount to () an act of genocide, if the requisite elements are met, and may be
prosecuted accordingly.
58
States are always bound to respect Human Rights set forth in the ICCPR. More generally, all
the countries have a duty to respect International Customary law which forbids threat to life,
torture or cruel, inhuman or degrading treatment or punishment and slavery (in which sexual
slavery may be included).
59
See note 26.
60
Ibid, [511].
61
See Akayesu Trial J udgment, note26, [701].
29

irremediable manner.
62
[T]he decades of discrimination by customs and by
laws have led the Tutsi to be regarded as a permanent, distinct and stable group
and as such are entitled to the protection under the Convention.
63
Then the
international conventions prohibiting genocide, especially by the use of rape,
were applicable to the crimes before the Court. This case is the main
contribution of the Tribunal in the definition of rape at an international level.
Surprisingly, the International J urisdiction did not seem keen to continue on
this path until more recently.
64

2.4.2 The earlier ICTRs setbacks regarding the investigation and the
prosecution of rape: a reflection of the international political lack of interest on
the issue?
The courtroom of the ICTR had listed numerous testimonies of the victims and
the experts from the UN peace-making forces in order to assess the type of
crimes which were committed in 1994 there. In that context for instance the
J urisdiction asked to Major Brent Beardsley whether he noticed any particular
characteristics that the corpse may have had.
65
Beardsley replied:
[O]ne, when they killed women it appeared that the blows that had
killed then were aimed at sexual organs, either breast or vagina; they
had been deliberately swiped or slashed in those areas [] Im talking
girls as young as 6, 7 years of age, their vagina would be split and
swollen from obvious multiple gang rape, and then they would been
62
Ibid.
63
Ibid.
64
Bifaifer Nowrojee, Your Justice is too slow: Will the ICTR Fail Rwandas rape Victims?
(November 2005) 10 Occasional Paper, United Nations Research Institute for Social
Development at 3.
65
(November 2005) 10 Occasional Paper, United Nations Research Institute for Social
Development at 1.
30

killed in that position. []Rape was the hardest thing to deal with in
Rwanda our part [] the murder of people- I know that can sound
bad, but that was not as bad to us as the rape and especially the
systematic rape and gang rape of children. Massacres kill the body.
Rape kills the soul. And there is a lot of rape.
66

This testimony clearly shows the perpetrators will to use rape as a method of
warfare. Raping was done on purpose to humiliate Tutsis and destroy then as a
group.
67
Sexual violence was an attack to the ethnic group and to punish
women as part of the propaganda against Tutsis. In those circumstances it is
even more important to prosecute the perpetrators of such crime as people
liable of Genocide, tortures etc. as it has been done in the Akayesu
68
case.
But, despite the repeated proclamations expressing a commitment to prosecute
rape, the Prosecutors Office has never articulated a consistent prosecution
strategy during the first decade of the Tribunals work.
69
In fact, in comparison
with the ICTY work, the ICTR pronounced very few rape convictions. Indeed,
a total of 5 rape convictions as a crime against humanity, as a form of
Genocide and as a violation of the Geneva Conventions have survived the
appeal.
70
While only 25 % of the completed cases were successful at the
ICTR, the ICTY completed successfully 92 % of its cases for rape.
71
The
66
Ibid.

67
African Rights, RWANDA Broken Bodies, Torn Spirits, Living with the Genocide, rape
and HIV/AIDS (AFRICAN RIGHTS Work paper 2004).
68
See note 26.
69
and Rwandan Tribunals (2001) 12 Human Rights Review 12: 109, at 117.

70
Ibid.
71
Ibid.
31

disparity of the rape convictions is even more shocking when we know that the
frequency of rape was much more important in Rwanda than in Bosnia.
72
This
clearly show the lack of political will to prosecute sexual offences. One can
wonder why the Prosecution team did not seem willing to prosecute sexual
violence offenders.
Several reasons had already been mentioned.
73

First, for many years it has been impossible to have a consistent approach in
regards to sexual violence because of the eternal turnover of the prosecutions
teams.
74
Furthermore, the ICTR suffered a lack of means at its disposal,
especially financially. For instance the ICTY received almost double funding
of the ICTR.
75
The other failure of the ad hoc Tribunal concerns the expertise
of its staff that was trained to deal with sexual violence. The shortage of
financial resources associated with under qualified staff created huge issues in
regards to the management of the administration. Indeed, the latter was often
criticized to provide incomplete and unreliable financial records, inadequate
security and witness protection and a lack of leadership.
76

Those drawbacks in the work of the administration have had a direct influence
in the work of the Tribunal itself and the J udgments outcomes. Indeed, a
judicial finding is directly linked to the administration and the structure of the
Tribunal. In other words, it is unlikely that J udges will pronounce adequate
remedies when its administration is dysfunctional.
77
This is even more true
72
Ibid.
73
and Rwandan Tribunals (2001) 12 Human Rights Review 12: 109, at 119.
74
Ibid.
75
Ibid.
76
Ibid.
77
Ibid.
32

concerning the prosecution of sexual offences that require much more
expertise.
[N]evertheless, limited or scare resources are not determinative of all the
prosecutorial outcomes evenly.
78
Indeed, despite limited resources, the ruling
of the Akayesu
79
case is considered to be a great success in prosecuting rape as
genocide.
80
Indeed, adequate funding is not enough. The political will to
prosecute those crimes is primordial otherwise it could be that pragmatic
reasoning and historical precedent relegate those crimes as secondary and then
invisible.
81

The three year tenure of the Prosecutor Louise Arbour revealed the importance
of political will in the efficient prosecution of sexual offences. Indeed, taking
her inspiration from the Nuremberg trial, she re-organized the work of the
Tribunal by creating joint Trials for the planners of the Genocide.
82
She was
willing to emphasize responsibility for crime of sexual violence perpetrated at
the highest levels of authority and made this her priority policy within her
office. Doing so, she added sexual violence amendments to most of the cases.
83

Unfortunately these efforts did not influence the work of the next prosecution
teams that were more focused on the rapid acceleration in the settlement of the
cases and the cut of unnecessary charges. Therefore, one can wonder what
creates the will to prosecute those crimes.
78
Ibid.
79
See note 26.
80
81
Ibid and see also Binaifer Nowrojee, Your J ustice is too slow: Will the ICTR Fail Rwandas
rape Victims? (Occasional Paper 10, UN Research Institute for Social Development
November 2005) at 11.
82
Ibid.
83
Ibid.
33

The study of the international case law reveals the importance of the lobbying.
Among lobbying agencies, it can be cited the transnational advocacy network
and the media.
84
They can also be the Human Rights organizations, scholars or
jurists or even media
85
The web aims to promote norm adoption,
implementation and policy change by exchanging information and services.
In the ICTR the pressure was less important than for the ICTY. The media
which discussed the Rwandan Genocide only focused on the children born
from rape. Only 8 media stories on rape during the Rwandan genocide
appeared in the major world publications in the 18 months period of the
beginning of the conflict.
86
During 1994-1995, none of the Amnesty
International public documents mentioned rape.
87
This poor mediatisation led
to the mismanagement of the cases by the Court who was willing to shorten the
proceedings and was not pressured by the international society.
88
The shortage
of the press coverage on Rwanda reflects the large inertia of the western
countries on African issues that are not seen as a national interest by them.
89

Besides, they are far away from Rwanda and do not get the necessaries
information. Another reason that could explain the lack of mediatisation of the
ICTR proceedings is the wrong assumption that prior successes within the
84

85
Richard J . Goldstone & Estelle A. Dehon, Engendering Accountability: Gender Crimes
under International Criminal Law (21/09/2003) 19/1 New England Journal of Public Policy
121, at 124.
86

87
Ibid.
88
89
34

ICTY would influence the court in Tanzania as they both shared the same
prosecutor.
90
Once they understood that the prosecution was not going in the
same direction, their efforts failed to change the tribunal approach to sexual
violence.
91
The external and internal advocacy within the tribunal only
managed to amend the indictment of J ean- Paul Akayesu to include rape.
92

Besides, Rwandan local womens organizations did not have in depth
connexions with transnational organizations as the Yugoslav groups.
93
Rape
was not prioritized by Rwandan womens groups as they were trying to rebuild
their lives and wanted to focus on the incoming challenges such as poverty,
schooling, healthcare
94
Redistributive J ustice then was not their main centre
of interest and that influenced the work of international organizations which
got more involved in the defence of the economic and social rights of the
population rather than the political and civil rights.
95
Another striking example
of the lack of commitment to prosecute and punish sexual violence is the way
witnesses used to be treated during and after the Trials. Indeed, the women
who testified before the tribunal had to face frustration and disappointment.
They often felt betrayed by the Court who exacerbated their suffering by
making them testify in questionable circumstances (in which they had to
answer hundreds of questions from the defendants counsel during cross
90
Ibid.
91
For more details see Heidi Nichols Haddad, Mobilizing the Will to Prosecute: Crimes of
Rape at the Yugoslav and Rwandan Tribunals (2011) 12 Human Rights Review 109, at 123.
92
93
94
Ibid.
95
35

examinations).
96
The witnesses found a hostile environment as some of the
J udges felt reluctant to limit excessive cross examinations.
In this context, as a civilian lawyer I would argue that the adversarial system is
not the best arena to deal with rape cases in which victims are often
traumatized and ashamed of their situation. Having to talk publicly about
sexual acts can traumatize even more the victims and make them feel
humiliated when they have not been warned by the Prosecutor team. I would
rather advise them to use a system such as an inquisitorial one that might be a
better solution for the efficiency of the Tribunal and the tranquillity of the
victims. Indeed in this system, the investigations are led by an independent
J udge who brings the evidences together and shares them with both sides
before the trial without the possibility for the defence to harass the victims with
offensives questions. Here, it seems that the court instead of bringing some
relief re-victimized the rape survivors and rather than helping them to
reintegrate in the society, marginalized them more. Indeed, NGOs reports
showed that women who testified whose anonymity had not been protected as
promised by the Prosecutor, suffered once they went back home, from the
attitude of contempt and shame of their community.
97
Most of them were seen
as traitors and wives of the enemy.
98
Even worst, witnesses felt betrayed and
scared for their safety after having testified as they were not told before that
their name would be given to the defence while the due process requirements
mandate to do so. Therefore, even if it is a violation of the procedural rules to
96
[November 2005] Occasional Paper 10, United Nations Research Institute for social
Development) at 22- 24.
97

98
and Rwandan Tribunals (2011) 12 Human Rights Review 109.
36

publish their names, in reality it is quite usual that parties to the proceedings
make them public outside the Tribunal. Then, once they went back home,
victims are known as the ones who testified and rape decrease their chance of
marriageability that might be the only way to reintegrate them into the
community. Then it should be the duty of the Prosecutor to inform the
witnesses of that fact, even if it may lead to lose some witnesses. Their safety
should be the first thing in matter to enable trust of the victims towards the
J ustice process. It is also a duty of the Court to treat decently the witnesses
known to have suffered sexual violence. Indeed, the ICTR J udges and
Prosecutors had been reluctant to restrain the exercise of the cross
examinations and even laughed during them,
99
showing a total lack of respect.
In the same time, the witnesses had to answer outrageous questions such as
Were you injured in the process of being raped by nine men?
100
None of
them apologized to the rape survivors for those acts, nor were they
reprimanded.
101
Besides that, surprisingly, it seems that the Rwandan
population itself had not been so interested in the prosecution of these crimes.
One of the main explanations might be the little of information about the ICTR
proceedings in the Rwandan media.
102
The location of the Court in Tanzania
makes impossible for the majority of the Rwandan population to follow the
trials. Then the distance has diminished the impact of the judgments within the
Rwandan society. This is even more true when practical problems erased from
the Tribunal which had to cut up some cases or when a Chamber had to deal
99
Bifaifer Bifaifer Nowrojee, Your Justice is too slow: Will the ICTR Fail Rwandas rape
Victims? [November 2005] Occasional Paper 10, United Nations Research Institute for social
Development) at 22.
100
Development) at 24.
101
Ibid.
102
and Rwandan Tribunals (2011) 12 Human Rights Review 109, at 128-129.
37

with several cases in the same time which made very difficult for the
population to follow and understand the trial's reasoning.
When we look at the other International instances facing the same issues at that
time, the failure of the ICTR is even more striking. Here, we think about the
UN Special Court for Sierra Leone which in spite of fewer resource and staff at
its disposal managed to investigate and prosecute sexual violence cases and
even, to expand the existing international law by charging individuals with
sexual slavery and forced marriage.
103
Those differences in prosecuting show
the dependence of the settlement of a case with choices made by the Prosecutor
to charge or not a crime.
104
Then, it signals the needs for international J ustice
Institutions to be mandated explicitly to ensure that effective prosecutions of
sexual violence crimes will be made. If such mandate had been done, maybe it
would have avoided situations as in the Cyangugu case
105
where, even though,
the Prosecutor had strong evidence, he did not prosecute the rape charges.
106

This example highlights the lack of transparency and accountability in the
prosecutorial decision-making process of the ICTR.
107
Yet, another example of
the careless of the Prosecution Office is the Kjelijeli
108
case in which the
Prosecutor missed the deadline to appeal before the Chamber of Appeal for the
103
Development) at 11-12.

104
Ibid.
105
Prosecutor v. Cyangugu, ICTR- 99-46-T ( ICTR September 20th, 2001).
106
See Bifaifer Nowrojee, Your J ustice is too slow: Will the ICTR Fail Rwandas rape
Victims? (November 2005) 10 Occasional Paper, United Nations Research Institute for social
Development) at 14.
107
Ibid.
108
Prosecutor v. Kajelijeli, case No. ICTR -98-44A- T, J udgement and Sentence (Dec. 1,
2003).
38

acquittal on rape charges of a Rwandan mayor.
109
The Chamber of Appeal,
tired of the negligence of the Prosecution Office, rejected the grant of Appeal
arguing the interests of J ustice.
110
But, by punishing the prosecutor, they
denied the possibility of J ustice for the rape survivors once again.
111

This lack of commitment from the Court also brings concern for the subsequent
cases before other international J udicial Instances. Indeed, rape survivors who
saw that their testimonies had not been taken into account to sue their rapists,
won't be willing in the future to testify before another Court and then
Prosecutors might have some problems to get evidences against new
perpetrators (those believing that they can get away from their crimes). The
failure of the Tribunal for Rwanda might have made the work of the future
Courts more difficult than it is already. Therewith, it can be noted that even
when transnational organizations pressures are crucial to generate a political
will to prosecute it is not enough by itself. Indeed, geopolitical location of the
conflict, media attention and framing, and connexion with the local movements
are playing a major role while prosecuting rape.
112

Moreover, it can also be argued that victims should not be dependent on a
possible political will to see their offenders prosecuted or not. J ustice for the
victims of sexual violence should never be left aside.
113
Indeed, the effect of
Courts rollover should not be neglected especially regarding its effects on the
109
(November 2005) 10 Occasional Paper, United Nations Research Institute for social
Development) at 11 &18.

110
See note 110 at 20.
111
Ibid.
112
and Rwandan Tribunals (2011) 12 Hum Rights Rev 109 at 124.
113
and Rwandan Tribunals (2011) 12 Hum Rights Review 109, at 129-130.
39

process of rebuilding the Rwandan community. Indeed, to restore a peaceful
and democratic society, citizens should be able to trust their neighbours and
their government and the institutions that it comprises or the same atrocities
might occur again. In that context, the feeling of impunity that rose from the
ICTR proceedings has brought additional issues. Whereof, to avoid the
recurrence of those criticisms before other International J urisdictions,
(especially before the ICC) gender-based violence prosecutions should be
made the top of the priorities in the texts themselves, as well as a possible
sanction for the agents who failed to act in concordance with the text.
Therefore, the Prosecution would have no other choice than investigating and
prosecuting those crimes seriously.
To conclude, the early work of the ICTR on gender-based violence had not
been very successful. Heavily criticized by the scholars, the Tribunal has since
then changed its strategy and has known some improvements.

2.4.4 The recent trend of the ICTR concerning gender- based violence in
Rwanda
As it has been admitted by a lot of academics, one of the most important steps
for the punishment of an international crime is its definition. In order to be able
to prosecute successfully a crime, the later must have been broadly defined by
Statutes or/and the Courts. Knowing that, a big issue which has been quickly
rose in the international law is the lack of a precise definition of rape or sexual
violence. While sexual violence had been present in most of the conflicts
worldwide, it has been rarely prosecuted until recently. Thus, it had been
argued that the crime of rape should be enhanced on the scale of gravity of war
40

crimes. Therefore, it has been suggested to recognise rape as an additional
international crime, or to explicitly broaden the definition of existing
international crimes with rape and sexual violence.
114
Regarding the case law
of the ICTR in the matter, it seems that the latter option had been chosen.
In that line, the most significant case of the Tribunal is certainly Akayesu.
115

Initially it did not contain rape charges
116
but things changed after the
testimony of a witness denouncing the accused of the rape of her daughter.
117

Thereafter, the J udges adopted a conceptual approach to define rape under
international law.
118
In doing so, the Trial Chamber used the CAT
119
and
defined rape as follows: a physical invasion of sexual nature, committed on a
person under circumstances which are coercive.
120
This definition is simple
enough to able the future prosecutions to encompass a sufficiently broad range
of sexual violent acts.
121
It does not refer to any consent in purpose. Indeed, the
Trial Chamber infer from the situation in Rwanda, that it could have no consent
in the general climate of violence and therefore, there is no proof of non-
consent in the element of the crime.
122
But the Prosecution shall prove the
114
Rebecca L. Haffajee, Prosecuting crimes of rape and sexual violence at the ICTR: the
application of joint criminal enterprise theory (2006) 29 Harvard Journal of Law & Gender
201, at 208.
115
See note 26.
116
See Akayesu Trial J udgment, note 26, [6].
117
(BOSTON CONSORTIUM FELLOW 2002-2003). See also Alison Cole, Prosecutor v.
Gacumbitsi: The New Definition for Prosecuting Rape Under International Law. (2008) 8
International Criminal Law Review 55, at 56.
118
Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under
International Law. (2008) 8 International Criminal Law Review 55, at 56.

119
Convention against Torture and Other Crual, Inhumane and Degrading Treatment or
Punishment (CAT).
120
See Akayesu Trial J udgment, note 26, [5978]
121
International Law (2008) 8 International Criminal Law Review 55, at 56-58.

122
Ibid.
41

general coercive circumstances.
123
Besides, this broad definition enables the
Prosecution to include a very large number of situations. There is no
exhaustive list of acts susceptible to be prosecuted but rather a description of
the essential aspects of the crime as for the CATs definition of Torture.
124
In
Akayesu,
125
the Tribunal has recognized that rape may be a form of torture
under certain circumstances and it shares common features with the latter.
126

When it was hoped that this definition would allow more prosecutions of
sexual offenders, in reality, its impact has been considerably reduced.
The first divergence from the Akayesu
127
definition occurred the same year in
the Furundija
128
case of the ICTY. Here, the J udges considered that no
definition of rape could be found in the international humanitarian law and in
the international customary law and therefore, a definition should be drawn
from the national jurisdictions
129
. In doing so, they implicitly rejected the
ruling in Akayesu.
130
They based their decision on the principle of nullum
crimen sine lege stricta
131
and defined rape as:
Sexual penetration, however slight:
123
Ibid.
124
International Law (2008) 8 International Criminal Law Review 55, at 57.
125
See note 26.
126
See Akayesu Trial J udgment, note 26, [597-8]. The Trial Chamber considered that rape was
a form of aggression which as torture was used for the purpose of intimidation, degradation,
humiliation, discrimination, punishment, control or destruction of a person. It constitutes
torture when inflicted by a public official or when the latter allowed it or knew that such crimes
were committed by people under his command.
127
See supra note 26.
128
Prosecutor v. Furundija, Case No. IT-95-17/1-T, (ICTY Judgement, 10 December 1998).

129
International Law (2008) 8 International Criminal Law Review 55, at 58-60.
130
See note 26.
131
Furundija Trial J udgement, note 129, [179].
42

- Of the vagina or anus of the victim by the penis of the perpetrator or
any other object used by the perpetrator; or
- Of the mouth of the victim by the penis of the perpetrator;
- By coercion or force of threat of force against the victim or a third
person.
132

It is interesting to note that this definition includes the penetration by the
mouth as a form of rape while a lot of national criminal laws do not consider it
as being rape but rather sexual violence.
133
Thus, it seems that the Court has
chosen to follow the international trend to broaden the definition of rape.
Knowing that such a divergence between the ad hoc Tribunals may be harmful
to the international J urisprudence on sexual violence, the ICTR later chose to
use the Furundijas definition of rape as a part of the Akayesu broader
approach
134
in Musema.
135
Indeed, even if the ad hoc Tribunals are not strictly
bound by precedent, yet it is important to maintain consistency in the case law
when it is possible. Then, it considers that the ICTY adopted a conceptual
approach
136
as well when it took into account the ongoing evolution of
criminal law.
137
It can be noted that the approach taken by the ICTY has not
been exempt from criticism.
132
Furundija Trial J udgement, note 129, [185].
133
International Law. (2008) 8 International Criminal Law Review 55- 86.

134
International Law. (International Criminal Law Review 8, 2008) 60.
135
Prosecutor v. Musema, case No. ICTR-96-13-T, Judgment, 27 J anuary 2000.
136
137
Ibid, [227-8].
43

Indeed, it had been argued that the national crime of rape must not be the best
analogy for international crimes where the circumstances are radically different
from a situation of isolated and sporadic crimes.
138
Additionally, consent in a
national context is a key point of this crime as rape is typically the interaction
between two individuals who are treated by the law equally as autonomous and
then non- consent is primordial to prove rape.
139
On another hand, in the
context of armed conflict, the autonomy of the civilians is absent as they are
placed under a non- consensual attack.
140
In Kunarac,
141
the ICTY used both
decision to conclude that its Rules of Procedure and Evidence, especially rule
96, did not exclude non-consent from the element of crimes even if the
surrounding circumstances should be taken into account when the proof of
consent was ascertained before the Court.
142
The Tribunal applied its previous
definition to establish whether the facts before it can be considered as a rape.
Then, the mens rea is the intention to effect this sexual penetration, and the
knowledge that it occurs without the consent of the victim.
143
144

Later, the ICTR reinforced its choice of qualification in Gacumbitsi.
145
In this
case the accused has been found guilty of Genocide and the crimes against
Humanity of extermination and rape by the Trial Chamber which imposed a
138
International Law. (International Criminal Law Review 8, 2008) 55, at 77-79.
139
Ibid.
140
Ibid.
141
Prosecutor v. Kunarac, Kovac, and Vukovic, Case No. IT-96-23/1-T, Judgment 22 February
2001.
142
143
See Kunarac et al. Trial J udgement, note 142, [460].
144

145
Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-A, Judgment, 7 July 2006.
44

sentence of 30 years imprisonment.
146
The Chamber recognised that the
witnesses testimonies were credible but that it could not be inferred from
them that the accused was responsible for all the alleged acts.
147
Indeed, for
the Court, the testimonies could not lead to the conclusion that rape was
committed in a mass scale and that the accused knew it was taking place or
ought to know it.
148
Then, it can be suggested that the Tribunal would have
decided differently if the Prosecution could have proven that mass rape
occurred in this area. Many rapes could lead to a finding of imputed
knowledge, thereby providing a nexus for responsibility.
149

Concerning the notion of consent, the Trial Chamber did not directly state
whether proof of the lack of consent was an element of the crime but it did
imply that the absent of consent could be inferred from the coercive
circumstances as required in Akayesu
150
.
151
The Chamber also tried to reconcile
this approach with the Kunaracs.
152
Indeed, it stated that rape is not limited to
the situations referred in the latter but rather that Akayesus definition of rape
encompassed Kunaracs qualification.
153

The Appeals Chamber refused the Prosecution argument wherein consent
should be considered as an affirmative defence that must be supported by
credible evidence introduced by the accused and therefore, non-consent should
146
147
148
Ibid citing Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-A, J udgment, 7 J uly 2006,
[25].
149
Ibid.

150
See note 26.
151
International Law. (International Criminal Law Review 8, 2008) 55- 86 at 68.
152
See note 142.
153
45

not be an element of the crime.
154
The Appeals Chamber concluded instead
that the burden of proof was on the Prosecution otherwise the accused would
have to find prima facie evidence of the consent of the victim and this burden
has been considered as being too high for the accused.
155
This decision of the
Appeals Chambers yet, did not question the idea that non- consent could be
inferred from the proof of existing coercive circumstances
156
. Later in its
decision, the Tribunal reconciled the apparent divergence in the Kunarac
157

and Akayesu
158
approaches.
159
Non- consent can be proven beyond reasonable
doubt by establishing coercive circumstances under which a meaningful
consent is not possible.
160
Besides, the Court recalled that the previous sexual
conduct of the victim should not be used as a defence by the accused.
161
The
existence of personal motive for committing rape does not displace criminal
responsibility.
162
Finally, there is no requirement of corroboration of
testimonies to decide if a testimony is a reliable proof to be taken into account
by the Court.
163
In concluding the case, the J udges ruled that the Trial
Chambers had been unreasonable when it did not adopt a holistic approach and
did not take notice of allegations against the accused of ordering certain attacks
154
Ibid.
155
156
Ibid.
157
See note 142.
158
See note 26.
159
Ibid.
160
International Law. (2008) 8 International Criminal Law Review 55, at 72-73, citing
Gacumbitsi Appeal Judgment, supra note 146, [155] [157].

161
International Law. (International Criminal Law Review 8, 2008) 55- 86 at 68.
162
International Law. (International Criminal Law Review 8, 2008) 55- 86 at 68 citing
Gacumbitsi Appeal Judgement, supra note 146, [103].
163
46

and abetting certain murders.
164
Therefore, Gacumbitsi had been sentenced to
life imprisonment. So, these decisions of the Court seem to show a recent will
to prosecute and sanction seriously rape as a war crime. It seems that the
earliest mistakes of the International Tribunal have led the Court to re-examine
its approach to gender-based violence. This has also brought the Court to
change its evidentiary and procedural rules, especially because of its previous
mismanagements of the witnesses hearings. The Gacumbitsi case itself helped
to improve the situation concerning the witnesss hearings. Now, the
Prosecutor can prove the absence of consent of the victim to the sexual
intercourse by showing the existence of coercive circumstances. Furthermore,
the Appeals Chamber admitted that such circumstances existed in time of
genocide, crime against humanity or war crimes. The Prosecution is also
allowed to take judicial notice of facts of common knowledge and
documentary evidence from other proceedings to prove those events.
165
Thus,
it is not required anymore to question the victim whether or not she consented
to the sexual activity or about the actual facts happening at that time. Then, it
avoids situations in which she would be questioned in an offensive manner and
thereby, re-victimised because of the trauma that could represent such
narration.
166

164
165
Alex Obote-Odora, The Prosecution of Rape and other Sexual Violence: The contributions
and challenges of the ICTR. (Women in the Land of Conflict 2008) at 15 citing Rule 94 of the
Rules of Procedure and Evidence of the ICTR.
According to that rule, the Judges took judicial notice of facts of common knowledge occurring
in Rwanda in 1994, in Karemera and Semanza.
See also Prosecutor v Karemera et al., Case No. ICTR-98-44-AR73(C), Decision on
Prosecutors Interlocutory Appeal of Decision on J udicial Notice (AC), 16 J une 2006, [22]-
[38] and See also Prosecutor v. Semanza, Case No. ICTR-97-20-A, judgment, 20 May 2005.
166
and challenges of the ICTR. (Women in the Land of Conflict 2008).
47

Likewise, it has been argued before that the Prosecutions investigations were
not well managed which led to the duplication of statements by the witness.
167

Effectively, often the Prosecutor office did not know when and to whom the
witnesses had already testified and about which facts in particular. Therefore,
evidence were lost or had to be given several times. In order to improve the
system, an Information and Evidence Support Section (IESS) had been created
within the Prosecution Office.
168
Additionally, an Investigation Division was
established to provide support such as medical care to witnesses.
169
The
Prosecution works closely with the Tribunal Registry which takes the
responsibility in supporting the rehabilitation of the survivors of sexual
violence.
170
In fact, it is a matter of primary importance that the victims feel
they had been listened and treat with dignity by the Court
171
and the
investigation team and that they do not suffer of stigmatization for having
testified before the Tribunal once they go back home. A good management of
the cases facilitate the future work of other international institutions which
wont have issues to find witnesses willing to testify.
Moreover, it seems fundamental that victims believe that J ustice has been done
to prevent future atrocities from happening. To succeed in this task, it has been
recognised the importance of reparation for the victims who are generally more
focused on practical issues such as their rehabilitation in their community, the
healing process or the resolution of their health problems, acquirement of their
means of living after the death of their relatives. In this regard, the progress
167
Ibid 16.
168
Ibid.
169
Ibid 17.
170
Ibid.
171
See Article 21 of the ICTR Statute which provides that the Rules of Procedure and Evidence
of the Tribunal shall include the protection of the victims and witnesses. Therefore, the recent
developments of the Tribunal go in line with the principle ruled in article 21.
48

made by the ICTR is limited.
172
The General Assembly of the UN has adopted
a resolution
173
calling for its programs and agencies to provide assistance to the
Rwandan Government when it dealt with particular areas such as the education
for orphans or medical care for the victims of sexual assault. But the Tribunal
had not really compensated the victims of the crimes it sanctioned even so the
Former Presidents of the Tribunal Erik Mse and J udge Navanethem Pillay
have made international scheme for the compensation of the victims of the
genocide in Rwanda.
174

On another hand, the Tribunals Registry worked for the creation of the ICTR
Trust Fund Support Programme for Witnesses in 2000 to provide support
measures aimed to help the physical and psychological rehabilitation of the
witnesses.
175
This implementation and monitoring of the Fund program is
under the direct supervision of the Gender Adviser in conjunction with the
Witnesses and Victims Support Section (WVSS) and the ICTR Health Services
Unit.
176
This has been done while the Tribunal had to deal with inadequate
budget funding. In this line, in 2003, the service had been restructured to
include in-house medical experts.
177

Beyond the improvements in defining rape and the work of the Court itself, the
ICTR work has also later influenced the drafting process of the new
172
and challenges of the ICTR. (Women in the Land of Conflict 2008) at 17.

173
UN General Assembly, Resolution 59/137 of December 2004 on the Assistance to
Survivors of the 1994 Genocide in Rwanda, Particularly Orphans, Widows and Victims of
Sexual Violence, UN. Doc. A/res/59/137, 17 February 2005.
174
and challenges of the ICTR. (Women in the Land of Conflict 2008) at 17.

175
and challenges of the ICTR (Women in the Land of Conflict 2008) at 18.
176
Ibid.
177
Ibid.
49

International Tribunals such as the ICC. Here, we think about the 1820 UN
Security Council Resolution
178
which provides that the Rome Statute and the
Statutes of the Ad Hoc Tribunals should include a range of sexual violence.
Moreover, States shall comply with their obligations to prosecute those
responsible for war crimes, genocide, crimes against Humanity including those
related to sexual violence and to provide that women and girls have equal
protection under the law and equal access to J ustice. Indeed, mass sexual
violence in time of armed conflict results in a lot of trauma for the civilian
population in the aftermath of the combats. In order to rebuild the society and
to prevent future atrocities, J ustice must be done. In that context, one can
wonder what the goals that J ustice should be fulfilling are.
The doctrine
179
often refers to the restorative and retributive J ustice. While the
ICTR claimed to perform retributive J ustice, the Rwandan Government tried
with the creation of the Gacaca to achieve restorative J ustice. While I believe
that both are necessary at the aftermath of the Genocide to build a peaceful
democratic society, I have doubts regarding the success of these attempts.
Indeed, according to NGOs on site, rape victims often felt betrayed and
forgotten by the international system. The rare successful prosecutions left a
feeling of impunity among the Rwandan population. That has been used by the
new Government as a pretext to reject further interferences from the
international community and led eventually to the creation of the Gacaca.
180

Effectively, the Rwanda held that it will prosecute every single person
178
See Resolution 1820 (2008), adopted by the Security Council at its 5916
th
meeting on 19
J une 2008.
179
Alana Erin Tiemessen, After Arusha: Gacaca J ustice in Post- Genocide Rwanda, (Fall
2004) 8/1 African Studies Quarterly.

180
Ibid 60.
50

potentially responsible of criminal offences. That led to overcrowded prisons
and huge delays before any sentence could be pronounced by the Courts as
they could not deal with so many accused. To resolve the problem and stop the
international criticism (concerning the disrespect of the Human Rights
principles such as the right to a fair trial), the Government finally decided to
create new forums of J ustice based on the traditional community system: the
Gacaca
181
.
This community-based system has not been exempt from reproof too. In order
to know whether sexual offences had been successfully prosecuted in Rwanda,
I chose to recall how operated the Courts at a domestic level and the effects of
the Gacaca rulings on the national system of J ustice, (especially regarding the
prosecution of sexual offenders).

2.5 The Gacaca Court and the domestic Courts issues
Facing international remonstrance regarding the disrespect of Human Rights
rules on due process, Rwanda had to find fairer and quicker means to deliver
J ustice. Thus, in 2001, the Gacaca Court is established:
What Rwanda expects from the Gacaca Courts is to establish the truth
about what happened, to expedite the backlog of Genocide cases, to
eradicate the culture of impunity and to consolidate the unity of our
people () Furthermore, if the Gacaca Courts function as we
anticipate; it will be an important contribution to the understanding and
181
Ibid.
51

advancement of international law. (Address to the nation by H.E. Paul
Kagame President of the Republic of Rwanda on the eve of the gacaca
elections, 3 October 2001).
182

Gacaca literally means lawn or yard in Kinyarwanda, referring to the fact
that whilst determining the dispute the parties as well as members of the
gacaca sit on the grass. Inspired by tradition this form of community J ustice
seeks to deliver the law in a more expeditious way. The gacaca Courts are a
method of transitional J ustice, designed to promote healing and moving on
from the Genocide. Criminal prosecutions are the main focus of the Gacaca
system that led to community-based J ustice. According to the Rwanda
Government, it has been the most thorough process in bringing the rank and
file of genocide to justice.
But this system has been criticized a lot by the victims themselves who were
threatened by their offenders when they testified and do not feel that J ustice
has been done by an impartial and independent tribunal.
In order to assess whether the national J udicial System had been successful in
the prosecution and punishment of sexual violence, this study will firstly,
describe one of the main means by which the Rwandan Government intended
to deal with the Genocidaires, namely the Gacaca institution. Initially, this
paper will explain its official main goals, its operation, and afterwards look at
182
Chiseche Mibenge, Enforcing International Humanitarian Law at the National level: the
Gacaca Jurisdictions of Rwanda, (ASSER Institute, Centre for International & European Law
October 2001)
<http://www.asser.nl/default.aspx?site_id=9&level1=13337&level2=13363#_Toc158358205>
accessed on May 2013.

52

the comments of the scholars on the matter and its reception by the civilian
population.
2.5.1 The Official Goals of the Gacaca Court
According to the National Government, the Gacaca J urisdictions had the
following objectives:
The reconstruction of the events occurred during the Genocide i.e.
relating the truth to the community and for the victims
The speeding up of the legal proceedings by assisting the national
courts
The reconciliation of the Rwandan citizens and the building of a trustful
society.
183

In other words, these Courts had to achieve truth, J ustice and reconciliation. To
do so, the Rwandan administration created an additional system to the official
one. This new structure was based on the traditional Gacaca system.
Indeed, originally, gacaca was a non-state system used by indigenous
Rwandan families and communities for dispute resolution. It was provided
orally and its proceedings varied depending on the circumstances of the
dispute. It was mainly used to settle dispute on family law and neighborhood
dispute such as property rights, marriage, succession, and attacks on personal
dignitySaid differently, gacaca were a mean to achieve the social cohesion
and peaceful cohabitation of the population. It remained a part of the Rwandan
dispute resolution system until the 1990s.
183
Community-Based Gacaca Courts Human Rights Watch Report No. 1-56432-757-4 (May
2011), at 2.
53

This form of community- based J ustice was seen as a possible solution to the
issues rose in a post Genocide society. In fact, a dualist post-genocide
community is in danger to see Genocidal campaigns happening again if the
institutions are incapable of ensuring that both groups can coexist peacefully
together. Besides, sanctions imposed by the J udicial Institutions must be seen
as fair or it might lead to more violence and unstable political system.
Wherefore, gacaca were seen as a possible model for restorative J ustice for
Rwanda.
2.5.2 Its Operation
On 12 October 2000 the Transitional National Assembly of Rwanda adopted
proposals for the introduction of modern gacaca. Those came before the
Constitutional Court that declared the Draft constitutional. Thus, the Gacaca
Law
184
was enacted in J une 2004.
Under the Gacaca Law, 11,000 Gacaca Tribunals were to be established.
185

Each Gacaca jurisdiction included a general assembly, a seat (judges) and a
coordinating committee. This Committee elected 9 honest persons
constituting the seats.
186
Except few exceptions (namely career magistrates,
lawyers, politicians, members of security forces in active service, and officials)
184
Organic Law No.16/2004 of 19/6/2004 establishing the organization, competence and
functioning of gacaca courts charged with prosecuting and trying the perpetrators of the crime
of genocide and other crimes against humanity, committed between October 1, 1990 and
December 31,1994.

185
October 2001)

186
Ibid.

54

everybody could stand as a J udge in the Gacaca.
187
Several hundreds of
trainers selected from magistrates and final year law students had been trained
since February 2002. Later, more than 200,000 judges followed training for the
Gacaca that began on 8 April 2002.
188
Only 35% of the J udges were
women.
189
Nevertheless, in the Rwandan context that represented an
improvement as traditionally gacaca courts were presided over by male heads
of families or communities and not women at all.
190

Originally, Rwandan Criminal Law
191
distinguishes four categories of
genocide defendants:

- Planners, organizers, instigators, supervisors of the genocide or
responsible or rape or sexual torture
- Authors, co-authors, accomplices of deliberate homicides, or of
serious attacks that caused someones death
- The person who committed criminal acts or became accomplice of
serious attacks, without the intention of causing death
- The person having committed offences against property.
192

187
Ibid.
188
Ibid.
189
Sarah Douglas, Gender Equality and J ustice Programming: Equitable Access to Justice for
Women (prepared during 20062007 under commission by UNDP Nations Development
Programme Report 2007) at 15.
190
Human Rights Watch, Struggling to Survive: barriers to Justice for rape victims in
Rwanda Human Rights Reports Vol. 16, No. 10(A (September 2004) at 50.
191
See 1996 Act on the Organization and Pursuits of Crimes against Humanity. The Organic
Law 08/96 of August 30, 1996 established the categorization of genocide defendants and
applies to both national Courts and Gacaca.
192
Ibid.
55

At the time of its creation, the gacaca courts had jurisdictions over the three
first categories of defendants.
193
The Public sessions were organized once a
week. People judged before the gacaca were encouraged to reveal their
accomplices in exchange of shorter convictions or to serve their sentences as
community service.
194
But, the punitive process was the main goal of the
Gacaca System and reconciliation and reconstruction of the social order
remained secondary in practise.
195

Under the 2004 law, gacaca courts were to operate at two local levels (known
as the cell and sector levels) in each jurisdiction.
196
Cell level courts gathered
information and classified suspects.
197
All other genocide-related trials
(involving category 2 and later category 1 offenses) occurred at the sector
level.
198
Separate gacaca courts at the sector level handled all appeals.
199

Under the 2007 law
200
the number of courts in each area was increased and got
jurisdiction over well-known criminals (that used to be classified under
category 1 and thus, judged before conventional Courts).
201
In 2008, the
193
2011), at 18-20.
194
2011) at 47.
195
2011) at 18.
196
2011) at 19.
197
Ibid.
198
Ibid.
199
Ibid.
200
Organic Law of March 1, 2007 Establishing the Organization, Competence and Functioning
of Gacaca Courts Charged with Prosecuting and Trying the Perpetrators of the Crime of
Genocide and other Crimes Against Humanity, Committed between October 1, 1990 and
December 31, 1994, art. 11 (hereinafter 2007 Gacaca Law).
201
2011) at 20.
56

government transferred most of the remaining Genocide cases in conventional
courts to gacaca jurisdictions.
202

Figure 3
203

Sexual offenders were not supposed to be judged before the Gacaca
jurisdictions. Only the ICTR and the national regular Courts were competent to
judge those accused. This might be understandable regarding the high
202
2011) at 20.
203
2011), at 20.
57

seriousness of sexual crimes and its psychological and medical consequences
for the victims. Indeed, victims of sexual assaults may be reluctant to testify
before Gacaca or even to trust institutions within which representatives of the
enemy tribe might be present and J udges. The Gacaca might be perceived as
illegitimate and incompetent to judge crimes difficult to prove. Besides, the
work of the Gacaca was meant to enable national jurisdictions to prosecute
sexual offenders faster. But as the ordinary judicial system still could not deal
with all the possible sexual offenders, the Genocide Law was amended in 2008
to allow the Gacaca Courts to try the alleged perpetrators of rapes committed
during the 1994 genocide. That involved over 6000 persons to be redirected
before the gacaca courts.
204

2.6 The domestic remedies: success or failure for the transitional J ustice?
Indeed, if the Gacaca courts are successful and permit the decongestion of the
domestic courts, it might facilitate the prosecution of more sexual offences
defendants before the regular jurisdictions.
Punishing the Genocidaires was not the only goal of the Gacaca. It was
supposed to serve the truth. As in the post apartheid regime in South Africa,
some commentators argued that the findings of these informal forums could be
used before domestic courts to prosecute sexual offenders.
But did the Gacaca perform its role?
The magnitude of the implementation of the gacaca process quickly
overwhelmed the Rwandan government and the inauguration of the tribunals
204
Sandra Ka Hon Chu and Anne-Marie de Brouwer, Rwanda Genocide Victims Speak Out
(Herizons magazine The Men Who Killed Me: Rwandan Survivors of Sexual Violence 2009)
<http://www.herizons.ca/node/334>accessed on May 3013.
58

was delayed over and over.
205
On 18 J une 2002, the first Gacaca jurisdictions
were inaugurated and pilot courts started their work in selected sectors.
206
By
the end of 2002, Gacaca was finally operational in 650 jurisdictions.
207

In the early 2000s, The Government expected that around 2 000 accused
208

will remain to be prosecuted by the ordinary criminal courts for the first
category of offences, such as sexual torture and Genocide.
209
This figure is a
huge reduction with the 130 000 accused that were waiting before the Courts in
1998 when the Gacaca did not exist yet.
210

This system relies on a system of plea agreements. In other words, the accused
is offered a pre-fixed reduction of sentence if he aagrees to confess, to give the
names of his accomplices and to apologize to the victims. This is meant to help
at the rebuilding of the society where victims will have to live in the same area
that their former offenders. But it might be a really efficient tool for the
domestic courts. Indeed, it may help to categorize the crimes and to
considerably decrease their work by assigning some categories of offences to
the Gacaca system and give testimonial proofs to the national Courts.
The sentence reductions offered by the guilty plea procedure are huge and
permitted that a lot of the accused did not go to jail but engaged in community
205
October 2001)
206
Ibid.
207
Ibid.

208
Ibid.
209
Ibid.
210
Rwanda Human Rights Report Vol. 16, No. 10(A (September 2004) at 10 citing Amnesty
International, Amnesty International Annual Report 1999.
59

work instead.
211
Thus, Gacaca helped to empty the overcrowded jails
considerably.
212
The Gacaca had been really successful in the fact that many
accused accepted to cooperate on that basis.
Albeit the Gacaca system seems to have fulfilled its role to expedite genocide
trials, numerous issues had been raised, namely the question of the respect of
the right to a fair trial is one of those. On this, the absence of lawyers and legal
representation for both sides is problematic as the right to a fair trial entails the
right to be represented by a counsel.
213
Besides the presence of foreign
professional legal advisors might have been beneficial to the victims who
would necessarily trust the findings of someone coming from the opposite
tribe. Unfortunately, regarding the mismanagement of the cases involving the
protection of witnesses before the ICTR, such participation of international
lawyers might have been ill perceived by the population. It seems that in the
context of Rwanda, where most of its judicial staff have been decimated, this
system was the best to be implemented and enabled Rwandan to access to
some form of J ustice in an expedited way. The community based system is
softer concerning the application of procedural rules.
214
The overall context of
the conflict and the passage of time would have make impossible the use of
211
Rwanda Human Rights Report Vol. 16, No. 10(A (September 2004) at 16-17.
212
2011) at75.
213
2011) at 28.
214
October 2001)

60

certain evidence in the strict evidentiary requirements of criminal procedure.
215

It enables people who could not have fulfilled the official process requirements
to be convicted or simply listened. They can offer the truth to victims about
what happened to their love ones, sometimes for the first time.
216
Even so at
the start, rapes are not being prosecuted in this forum; the testimonial process
can produce evidences to be used before the Domestic Courts. The Gacaca
system offered a real opportunity to prosecute international crimes belonging to
the category 1 of offences before decongested domestic Courts. Indeed, a
share caseload is a reduced caseload.
217
While the gacaca used non-
professionals to perform J ustice, the Domestic Courts were able to get more
sophisticated and were influenced by international principles on the protection
of the accused and the victims within International fundamental rights
standards.
218

Additionally, one can add that Gacaca offers a new model to carry out J ustice
for States where most of its judicial infrastructures had been destroyed by
conflicts and where mass gender-based violence were committed letting a
traumatized population behind. In that case, the Gacaca could be used as a
model for other post conflict States if it is correctly applied by the State and not
politically instrumentalized by the new power as it has been often said about
the Rwandan example. This is even more relevant in the Great Lakes in Africa
which has been struggling against mass violence in armed conflicts for decades
now. In the DRC for instance, most of the official government infrastructures
had been unable to stop the violence but also to arrest and prosecute offenders.
215
Ibid.
216
Ibid.
217
Ibid.
218
Ibid.
61

Corruption, disorder, gross violation of Human Rights in the armed forces have
been blocking the peace process and led the civilians mistrust towards the
judiciary system. A community-based system of J ustice might be then part of
the solution if one can be sure it respects some basic rules of fair process. It
might allow establishing individual criminal responsibility for some criminals
while the all region is crossed by mass violence.
Although far from perfect, it can be hoped that it helps reducing gross violation
of Human rights by reducing the work of the official Courts. In an under
resourced legal and judicial system, the reality is that the reconstruction of the
society will take time and the full observance of these norms is far from
certain. One of the solutions might be the financial help of the international
community to promote adherence to these standards by offering legal training
to the community members responsible of the process.
2.7 Conclusion
To concludeobservers have highly criticized all the forms of J ustice which had
been applied after the Rwandan Genocide. Most of these criticisms have been
directed towards the absence of the fair trial requirements. For instance, gaps in
the Penal Code hindered effective and uniform investigation and prosecution of
genocide and post-genocide sexual violence cases before the domestic
Courts.
219
Thus, accordingly to some NGOs has led Courts to define differently
similar acts depending of their localisation.
220
Besides before 2008, insufficient
resources and inadequate training of judicial and medical personnel were
219
Rwanda Human Rights Report Vol. 16, No. 10(A (September 2004) at 44.
220
Ibid.
62

common for the Domestic J udicial System.
221
But one can admit that effort
from both the international and the national systems have been made to
produce individual responsibility for war crimes.
222
Once again, sexual
violence, even though it represented a huge aspect of the conflict, had not been
treated in priority or even at all. But all the defects in the various processes
should be used in the future to permit that a better system exist. The Rwandan
example seems to have influenced the international community in regards to
gender-based violence, especially the drafters of the Rome Statute. This can be
seen as a progress in the fight of sexual violence.

221
Ibid.
222
See Chiseche Mibenge, Enforcing International Humanitarian Law at the National level:
the Gacaca Jurisdictions of Rwanda, (ASSER Institute, Centre for International & European
Law October 2001)
63

Chapter 3: sexual Violence in the Democratic Republic of Congo
3.1 Introduction

Figure 4
223

223
See Map No. 4007 Rev. 10 UNITED NATIONS (July 2011)
<http://www.un.org/depts/Cartographic/map/profile/drcongo.pdf>accessed on May 2013.
64

The second Congo war is an armed conflict in the DRC which started in 1998
and officially ended in 2002. It involved nine African nations and some twenty
armed groups. 183 000 dead resulted from the conflict which has also been the
theatre of mass rapes and displacements of persons.
224
It led to the death of
over 5, 4 millions of people from conditions of malaria, diarrhoea, pneumonia
and malnutrition.
225
It was considered as the worst conflict worldwide after the
Second World War. Since the latest round of conflict started in eastern Congo
in 1996, the United Nations estimates that 500,000 people have suffered rape
or other forms of sexual violence.
226

Despite the fact that peace agreements were settled, today the country is still
struggled by extreme levels of violence in the eastern provinces of the DRC,
with alliances between the Congolese army, Mai Mai groups and newly
emerged rebels groups supported by the Ugandan and Rwandan governments.
The DRC had been marked by colonialism and political oppression and the
current conflicts involving international players and illicit resource exploitation
are reflecting this. The official end of the conflict did not lead to the
disintegration of the rebel groups. On the contrary, insurgents were constantly
fighting the official government and this battle led to the creation of new rebels
groups which kept an influence in the eastern region of the country where the
mines are located. In the lights of these elements it seems that the Congolese
authorities are finding themselves in a complete turmoil and are unable to
224
International Rescue Committee, Mortality in the Democratic Republic of Congo: an
ongoing crisis International Rescue Committee Report (2008) <
http://www.rescue.org/news/irc-study-shows-congos-neglected-crisis-leaves-54-million-dead-
peace-deal-n-kivu-increased-aid--4331>accessed on May 2013.
225
Ibid.
226
Passy Mubalama, Simon J ennings, Roving Courts in Eastern Congo, (13 February 2013)
Issue 33 ACRR <http://iwpr.net/report-news/roving-courts-eastern-congo>accessed on May
2013.

65

prevent and prosecute violence on their soil and more precisely sexual
brutality.
Thus, to assess the possible solutions to deal with the militias and the
prevention of sexual violence, it seems pertinent to first remind the specificities
of the sexual violence taking place since 1998. Thereafter, it will be studied the
causes and consequences of the sexual violence in the DRC and then, how the
Congolese and international authorities dealt with the prosecutions of the
offenders.
3.2 Sexual violence in the DRC since the outbreak of the civil war
Since the beginning of the conflict in 1998, Congolese women have been
victims of rape with sexual exploitation committed by all armed groups in the
country, including the national armed forces of the DRC (FARDC), the
national police forces and even some UN peacekeepers from the Mission de
l'Organisation des Nations Unies en Rpublique dmocratique du Congo
(United Nations Organization Mission in the Democratic Republic of the
Congo).
227
In the single month of J une 2008, over 2,200 rapes were reported in
the province of Nord Kivu (North Kivu) and hundreds of violations of peace
agreements have been committed since then.
228

Rape is not the only horrific act perpetrated against women. Indeed, actions
such as sexual mutilations had been recorded by NGOs and UN forces and
227
Sara Meger, Rape of the Congo: Understanding sexual violence in the conflict in the
Democratic Republic of Congo (April 2010) 28 Journal of Contemporaries Studies (No.2)119,
at 126.

228
Ibid.
66

even rape of six-month-old girls leading to their death.
229
Studies also
demonstrated that the most common form of rape in DRC was gang rape with
an average of 4, 5 attackers per victim.
230
Additionally, 70% of the victims of
rape declared that rapes were planned in advance with a specific aim in mind:
terrorise, loot, rape and then leave.
231
. Thus, rape is used as a weapon of
warfare against civilians. Women had to face rape and sexual slavery on a daily
basis during the conflict and still have to protect themselves from sexual
violence nowadays. Indeed, many women and girls had been held in captivity
in the rebels camps as sexual slaves in south Kivu and North Kivu during the
conflict. Even some of the members of the MONUSCO had been accused of
buying sexual slaves in exchange of food
232
From 2005 to 2007, so after the
official end of the conflict, more than 32.000 cases of rape had been reported in
the region of South Kivu, including men and boys.
233

229
Michelle Nichols, Six month old babies are rape victims in war says U.N. envoy (17 April
2013) The Independent <http://www.independent.ie/world-news/africa/six-month-old-babies-
are-rape-victims-in-war-says-un-envoy-29204295.html>accessed on May 2013: see also note
supra 223.

230
Carly Brown, Rape as a Weapon of War in the Democratic Republic of Congo (Winter
2011) at 16.
231
Sarah Meger, Rape of the Congo: Understanding sexual violence in the conflict in the
at 127 citing Marie Claire Omanyondo Ohambe et al, Womens bodies as a Battleground:
Sexual violence against women and girls During the War in the Democratic Republic of Congo
South Kivu 1996/2003 RFDA and RFDP and International Alert Report (2005) at 35.

Translations:
- Rseau de Femmes pour un dveloppement associatif (RFDA)(Womens Network for
the associative development)
- Rseau des Femmes pour la Defence des Droits et de la Paix (RFDP) (Womens
network for the rights and Peace protection).

232
at 126.
233
Ibid.
67

The frequency and the high stage of this violence clearly show the willingness
of the perpetrators to terrorise the civilian population and represent grave
breaches of the rules of International Humanitarian Law (IHL) which forbids
direct attacks on the civilian population during armed conflicts. The durability
and the frequency after the official conflict of the mass atrocities in the DRC
raise the question of the causes of mass rapes in the DRC.
3.2.1 The hypothetical causes of sexual violence in the DRC
While I was first researching what were the facts and the work of the scholars
on the subject I tried to figure out in what the Congolese conflict may differ to
other armed conflicts regarding the occurrence of sexual violence towards
women. Doing so, I was surprised to find some similarities, between the
Rwandan conflict and the Congolese one regarding to the reasoning of the
combatants who perpetrated those acts. Therefore, it appeared necessary to
search what was the social and political background of the conflict in both
countries and more precisely what was the situation of women in the DRC
before the widespread violence happened.
The DRC is a very patriarchal country where men to express their power, are
expected to have a high sex drive and the social and economic power to
protect their wives from other men.
234
Women have the only value to be
mothers and therefore are invisible in Congolese society as right holders. The
rape in the DRC even before the war occurred was rarely judged as a crime and
most of the families settled the cases by marrying the rapist with his victim or
234
at 129.
68

by offering money to the victim's family.
235
The rapist is seen as the husband
and if the woman is married, she is considered as adulterous. Sexual violence
was considered as quite normal in the society. The war just increased this
phenomenon.
Women in the DRC had a very low social status in both traditional and social
domains.
236
This inequality of treatment between men and women in the State
are emphasized by the national law. For instance, Congolese Family Code
states that women must obey their husband as the head of the household and
that women need their husband's permission to open a bank account.
237
The
woman is always under the power of a men and never really independent. This
patriarchal culture also leads the community to expect the men to protect their
wives against attacks. This aspect of the Congolese culture is expressed within
its family law which foresees the duty of husbands towards women as
protectors against sexual assaults. Therefore, an attack against a woman is both
an attack against the woman and against her family and husband who failed to
protect her and would feel emasculated.
238
The men are the family wealth
providers. In exchange of the money they bring to the family, the women are
supposed to accept to perform conjugal obligations. If the husband fails to do
235
at 129 citing Marion Pratt and Leah Werchick Sexual Terrorism: Rape as a Weapon of War in
Eastern Democratic Republic of Congo: An assessment of programmatic responses to sexual
violence in North Kivu, South Kivu, Maniema, and Orientale Provinces USAID/DCHA
Assessment Report (J anuary 2004) at 9.

236
at 130.
237
at 129 citing Human Rights Watch Report (2002).
238
at 130.
69

so, then it is often believed by soldiers that the women wont be faithful and
will leave.
239

Authors had identified three main causes to explain the sexual violence act
occurring in the DRC:
- economic ambition
- hegemony social constructions of masculinity
- and the general inability to enforce discipline among armed groups in
the war.
240

To this list it can also be added, the general climates of violence which favour
the occurrence of new violence, sometimes even between the civilian
populations itself. To construct this list, they had relied on soldiers testimonies
who explained rape as a way to reassert their masculinity. Indeed, the military
institutions influenced the soldiers by implying that masculinity is linked to
violence. When asked, soldiers often refer to their fear not to be able to
provide for their families and to keep their women faithful.
241
Their reaction
to face this fear is violence as a way to reaffirm their manhood and
masculinity.
Some writers explained the rape as an act done to destroy completely the
social, family fabric of society
242
through public humiliation, moral
239
Maria Eriksson Baaz and Maria Stern Why do soldiers rape? Masculinity, violence, and
sexuality in the armed forces in the Congo (DRC), (03/06/2009) 53/2 International Studies
Quaterly 495 at 507.

240
at 128.
241
Ibid.
242
Marion Pratt and Leah Werchick Sexual Terrorism: Rape as a Weapon of War in Eastern
Democratic Republic of Congo: An assessment of programmatic responses to sexual violence
70

destruction. By doing so, they deny the fact that rape is sexually motivated and
explain the rape as an expression of a power only.
243
This explanation of rape
can be related to the distinction often made by the soldiers themselves who
distinguish Evil Rapes from Lust Rapes.
244
While the former is based on the
need to humiliate and hurt the women, the latest is just the fruit of physical
needs that men cannot refrain and had not been able to fulfil because of their
poverty for a too long amount of time.
245
Although men recognize that rape is
always wrong, they also believe that some circumstances enable them to act in
a different way that they usually would
246
. More surprisingly, Congolese
women soldiers often share this view that men have irrepressible sexual needs
that cannot be stopped and that lead them to rape. Besides, male soldiers
explain rape as the direct consequence of frustration, physical needs, poverty
and violence of the battle.
247
If a man is hungry and frustrated he will need
revenge and to do something bad by hurting the women. That is referred as
evil rape by combatants.
248
Evil rape often describes situations in which the
agent acts as a member of a group to weaken the enemy. Therefore the
Congolese population distinguishes two causes to rape: one, being evil and part
of the attack against the group whereas the other, even though objectionable, is
in North Kivu, South Kivu, Maniema, and Orientale Provinces USAID/DCHA Assessment
Report (J anuary 2004) at 8.

243
Ibid.
244
Quaterly 495.
245
Quaterly 495 at 509.
246
Ibid.
247
Quaterly 495 at 509-513.
248
Ibid.

71

considered as less severe and not seen to be designed to harm the woman.
249

The former seem to directly refer to the mind of the rapist, who is seen as evil.
On the other side, the latter is not explained by any psychological reasoning but
is merely the consequence of nature in that theory. In that context, other
researches had been done to know what the motivations of men committing
rape are. One of those consisted to find the psychological origins of rape. In
order to know what the possible reasons of rape are, some psychologists
250
had
classified rapes in several categories:
- punitive rape
- status rape
- ceremonial rape
- exchange rape
- theft rape
- and survival rape.
251

In that context, the psychologists seem to focus their studies on individual
cause of rape and do not search influence of the society on the individuals
which can lead to the massive use of rape as a mean of warfare.
252
Regarding
249
Maria Eriksson Baaz and Maria Stern, Why do soldiers rape? Masculinity, violence, and
sexuality in the armed forces in the Congo (DRC) International Studies Quaterly (2009)
53:495- 518 at 513.
250
This typology had been created by Patricia Rozee, a professor of Psychology at California
State University, Long Beach where she teaches classes in the Psychology of Women, and
Violence against Women.

251
Report (J anuary 2004) at 8.
252
at 129.
72

the special context of the DRC on the place of women within the society, I
would not limit my findings to these listed causes and I find the need to
research for some other explanations to the phenomenon of mass rape that is
taking place since the outbreak of the conflict. Thus, other authors have found
another possible cause of the high-level of rape in the DRC which leads us to
the following point.
Another explanation of the widespread violence occurring in Congo during the
civil war is probably economic. Indeed, militia groups found interest in
keeping the occurrence of aggressions which enables them to loot and
contraband the resources. They often collaborate to plunder. Those who are
known to cause the more violence are also those who practise pillage the
most.
253
Most of this violence is committed towards women to provoke a
collapse in the communities by attacking the core of the community- the
women. This greed for the national resources can also be explained by the lack
of means in the official army (FARDC). Indeed, soldiers wages are often too
low and delayed, and they lack food on the battlefield.
254
That highly increases
the general climate of violence as combatants rely on civilians for survival and
feel frustrated. All of these factors induce another problem: the disloyalty of
the fighters who make their superiors accountable for the lack of resources.
255

The deficiency of support in the army and cohesion lead to disorganization.
253
Carly Brown, Rape as a Weapon of War in the Democratic Republic of Congo (Winter
2011) at 12.
254
at 128.

255
at 132.
73

The de-synchronization inside the army has been assumed to be one of the
main explanations to the occurrence of violence (refer infra).
There, it seems that there are two main reasons for the occurrence of these
crimes in the DRC:
- An individual motivation (the soldier being motivated to fulfil social
expectations of masculinity).
- And a structural perspective (financial objectives brings militias groups
to commit violent acts towards the civilians in order to loot without
problems the resources and the judicial system encourages the impunity
of the offenders).
Both of these reasoning should not be treated separately but have to be
interacted. Indeed, individuals are influenced by the society and the way it
conceives masculinity and feminity, the place of women in the community and
the expectations on men. The system of impunity encourages soldiers to
commit crimes because they know they won't be prosecuted and it would
facilitate to monopolize wealth.
256
But, as in the Rwandan conflict, some
argues that rape was used as a weapon of war to attack directly the civilian
population by planting HIV or by taking away the taste of life or violating
women during rape which often occurred publicly. Counter to the situation of
its neighbour, the DRC has not really known rape as a mean of ethnic
purification during the civil war. Effectively, the anterior Mobutu regime based
on the general emphasis on Zairian national identity led to very low
256
Ibid.
74

politicization of ethnicity.
257
Then, very few militias actually pretend to defend
an ethnic group against another.
258
But since the end of the official conflict, in
Ituri, combatants often use rape as method of warfare against other ethnic
groups seen as their enemies. All the possible causes that had been given to
explain sexual violence in armed conflict go with the special context of war
and its intrinsic violence which leads soldiers to feel authorized to act violently
in the craziness of the war, worsened by the wide use of drugs.
259

While it is hard to find a consensus on the cause of mass rape in the DRC
context, it might be easier to study the consequences of mass rape for the
Congolese society and then regarding the normative needs.
3.2.2 The medical, psychological, socio-economic and judicial consequences of
sexual violence in the DRC
While women were already disproportionally disadvantaged economically and
socially in the DRC, the use of rape as a method of warfare during the conflict
257
Bob W. White, Lincroyable machine dauthenticit Lanimation politique et lusage
public de la culture dans le Zare de Mobutu(The Amazing Authenticity Machine: Political
Animation and the Public Use of Culture in Mobutus Zaire) Anthropologie et Socits, vol.
30, No. 2, (2006) at 43-63.

258
One well known exception is the General Nkundas who is one of the leader of the CNDP
(National Congress for the Defence of People) a rebel military group which claims that it is
defending the ethnic Tutsi community against attacks by the FDLR Democratic Forces for the
Liberation of Rwanda (the Rwandan/ Hutu militia fighters who fled to the DRC after the
genocide).However, regarding the past actions of this group it can be argued that their true
motivation is the eastern Congolese resources.

259
Maria Maria Eriksson Baaz and Maria Stern Why do soldiers rape? Masculinity, violence,
and sexuality in the armed forces in the Congo (DRC), (03/06/2009) 53/2 International
Studies Quaterly 495 at 498 and 512.

75

worsened their situation.
260
In fact, many of them had been forced into
prostitution to survive or suffered from psychological distress after they had
been raped.
261
Besides this, rape survivors are not seen as victims in their
community and are often stigmatized and abandoned by their families for not
being able to fulfil their reproductive role.
262

Additionally, rape survivors are assumed to be infected by HIV and instead of
being helped by their families, are mostly, rejected. Besides, the community
often pressure the husband to refuse his wife back as supposedly sick and
contagious even so he might be willing to do so. As most of the perpetrators
had not been prosecuted for the violence they committed during the conflict,
victims lost confidence in the J ustice and sexual violence keeps happening in
some parts of Congo where militia members believes that they can perpetrate
crimes without consequences.
263
Sexual violence is then closely linked to the
culture of impunity.
264

The lack of confidence in the judicial system is another feature of the general
default of faith from the civilian population towards the public officials.
265

That fact has already been experienced during Mobutu dictatorship when
security forces often harassed civilians, especially by using violence as a threat.
Thus, it has had a negative impact on the newly trained staffs which are not
willing to prosecute crimes for the community. Moreover, the population who
260
at 127.
261
Ibid.
262
Ibid.
263
Ibid 128.
264
Ibid 128- 130.
265
For more details see Human Rights Watch, Rpublique Dmocratique du Congo: faire face
l'impunit (DRC: facing impunity) Human Rights Watch Information Sheet (J anuary 2004).

76

had witnessed the atrocities suffered psychological traumas as they felt the
continuous danger on their lives.
266
They lost their ability to move forward.
Women are not the only ones who claimed to have been traumatized. Indeed, a
lot of men that witnessed their wives being raped without being able to protect
them, felt impotent, emasculated and powerless afterwards.
267
They fear for
their lives and do not denounce the perpetrators by fear of reprisals and
knowing that most of the J udges are corrupted.
268
Traumatisation of the entire
society emerged as a major issue as the trauma is often not properly understood
and then lacks the appropriate response.
269

Finally, there are persistent effects of rape as children born out from it who are
seen by the mothers as a continual reminder of the violence they suffered.
270

After the end of the civil war, rape are still occurring frequently in some areas
as in Ituri and even lead the women to stop working out and sleeping in their
266
Democratic Republic of Congo Journal of Contemporaries Studies Vol. 28 No.2 (April 2010)
119- 135 at 127.
267
J .E. Trenholm, P. Olsson and B.M. Ahlberg, Battles on womens bodies: War, rape and
traumatisation in eastern Democratic Republic of Congo (March 2011) 6 Global Public Health
(No. 2) (March 2011) 139, at 144.

268
Report (J anuary 2004) at 17; see also J .E. Trenholm, P. Olsson and B.M. Ahlberg, Battles on
womens bodies: War, rape and traumatisation in eastern Democratic Republic of Congo
(March 2011) 6 Global Public Health (No. 2) (March 2011) 139, at 144.
269
See Carly Brown, Rape as a Weapon of War in the Democratic Republic of Congo
(Winter 2011) at 18.
270
Report (J anuary 2004) at 12; see also J .E. Trenholm, P. Olsson and B.M. Ahlberg, Battles on
womens bodies: War, rape and traumatisation in eastern Democratic Republic of Congo
(March 2011) 6 Global Public Health (No. 2) (March 2011) 139, at 144.

77

own home in order to protect them from rape.
271
Therefore, sexual violence
had unexpected economic and social consequences as it prevented women to
feed their family and to have a normal social life. Today, the DRC is stuck in a
vicious circle. Sexual violence are widely committed and leads to a culture of
fear within the civilians, facilitating the loot of resources and by then
preventing the Government to gain the means to stop the violence.
3.3 The Legal Framework of the conflict in the DRC
The durability after the official conflict of the mass atrocities in the DRC raises
the question of the applicability of the IHL to the acts which have been
occurring since J une 2003 and more generally, what law is to be applied to
prosecute and punish those later crimes?
This question led to a lot of controversies on the approach to be taken to
prevent further violence. Indeed, when I was searching what was the majority
opinion of the scholars on the subject, I noticed that no consensus could be
found. The divergence on the issue was an echo of another controversy on the
question whether an intervention of the international community would be
required and/or would be preferable to a purely national approach.
Indeed, one can wonder which set of instruments would be the most efficient in
preventing sexual violence in a country where foreign influences played a
major role in the conflict. Finally, is sexual violence, a crime that should be
271
J .E. Trenholm, P. Olsson and B.M. Ahlberg, Battles on womens bodies: War, rape and
traumatisation in eastern Democratic Republic of Congo (March 2011) 6 Global Public Health
(No. 2) (March 2011) 139, at 144.

78

treated the same way than any other form of violence in time of armed
conflict?
Several causes have been found by experts to explain the phenomenon of mass
rape occurring in the DRC. Indeed, one of the main aspects of the Congolese
conflict is the massive use of sexual aggression against the civilian population.
While it is common to witness sexual violence during armed conflicts
worldwide, their causes and scale vary depending on the socio-economical
context. Therefore, after having recalled what sets of law was applicable to the
crimes taking place in the eastern part of Congo, my research will focus on
their application to the Congolese conflict (by both national Courts and
international ones). Thus, this should allow me to conclude what in my view
shall be the most favourable approach to be taken.
Regarding the crimes occurring within the Kivus, three sets of law may be used
to prevent and protect the civilian population against further violence but also
to punish the offenders of such crimes:
- The international Humanitarian Law
- The International Human Rights
- The domestic Congolese criminal law.
Each of these sources will be studied in the lights of the Congolese conflict
thereafter.
3.3.1 In international Humanitarian Law (IHL)
The second Congo war is both interne and international. Indeed, many of the
militia groups had been financed and helped by the neighbours States of the
79

DRC. Moreover, the UN
272
sent its forces in order to facilitate the return of
peace and to rescue civilians.
Additionally, Congolese rebel groups have led attacks against the national
forces since the outbreak of the civil war until now and then should be covered
by the rules of NIAC.
273
The law of NIAC does not foresee any combatant
status, it does not define combatant and does not prescribe specific rights and
obligations for them.
274
Therefore, it has been argued that IHL protects people
because of their activities rather than their status.
275
Then, fighters i.e. a
member of an armed group with a fighting function as rebels groups in Congo
should be treated regarding the rules applicable to NIAC and might be
attacked. Some other authors on the contrary, worked by analogy and defined
who should be considered as fighters in NIAC with the combatants in IAC.
276

In any case, people who take part in the conflict have the obligation to
distinguish themselves from the civilian population and to respect IHL rules
applicable to NIAC.
277
Therefore, it seems that the conflicts taking place in the
Congolese territory should be ruled by IHL.
Indeed, the mass attacks between the national armed forces and these armed
groups has been recognized as armed forces which are ruled by IHL,
especially, the four 1949 Geneva Conventions(GC), their additional Protocols
(AP I and II), the 1907 Hague Convention,
278
the J urisprudence of the
International Tribunals and finally the international customary law... The four
Conventions explicitly forbid the combatants to carry on any direct attacks
272
Referred as MONUSCO supra.
273
Non International armed conflicts (NIAC).
274
ICRC, How does law protect in war (ICRC Manual, Vol.1) at 343 etc.
275
Ibid.
276
International armed conflicts (IAC).
277
See note 275.
278
Now part of the international customary law.
80

against the civilian population, including rape, humiliating and degrading
treatments such as sexual violence. Those are considered as grave breaches of
the IHL. More precisely, the fourth 1949 Geneva Convention stipulates in its
article 27
279
that women shall be especially protected against any attack on
their honour, in particular against rape, enforced prostitution, or any form of
indecent assault. Besides that, the article 76
280
of the Additional Protocol I to
the 1949 Geneva Conventions
281
provides that women shall be the object of
special respect and shall be protected in particular against rape, forced
prostitution and any form of indecent assault and then extends the protection
on all women. As the fourth Geneva Convention reminds in its article 144, the
High contracting parties such as the DRC
282
must undertake to disseminate the
text of the present Convention in their respective countries in time of peace or
war and any civilian, military or police who in time of war assume
responsibilities in regards of the protected persons, should act regarding its
provisions. Then, according to the article 147, any wilful killing, torture or
inhumane treatment () wilfully causing great suffering or serious injury to
body or health constitutes a grave breach of the Convention.
283

279
See ICRC, The Fourth Geneva Conventions Part 3 on the Status and Treatment of Protected
persons, Art.27.

280
See the Additional Protocol I to the GC Chapter II on measures in favour of women and
children.
281
The DRC has ratified the first additional Protocol in 1982 and the second additional
Protocol in 2002.
282
The DRC has ratified the 1949 Geneva Convention in 1961.
283
See ICRC, Rule 93. Rape and Other forms of Sexual Violence
<http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter32_rule93> (ICRC, How does
law protect in war ICRC Manual, Vol.1, chap.32) accessed on J une 2013.
81

Therefore, the mass rape and sexual violence which took place in the DRC
during the civil war and since then have to be considered as grave breaches of
the Convention and the State has a duty to prosecute those responsible.
284

That is even truer when we look at the international customary law which
prohibits any rape and sexual violence as war crimes.
285

The DRC has witnessed armed groups committing sexual slavery, forced
prostitution, rape, and rape causing death, wilful killings of civilians that did
not take part in the hostilities during the past two decades. All these acts are
severely sanctioned by the rules of IHL, even when the conflict is interne to a
State.
Indeed, the common article 3 to the four GC prohibits during non-international
armed conflict, any direct attack on civilians who do not take directly part in
the hostilities. In particular, it states that violence to life such as murder as
well as cruel treatment such as torture, mutilation or any form of corporal
punishment is prohibited.
286
Albeit the text does not explicitly refer to rape,
the latter is obviously understood as included in these scenarios as it is a form
of corporal punishment, torture and a cruel treatment or indecent assault.
287

Likewise, the article 4 of the AP II to the 1949 GC precise that outrage upon
personal dignity, in particular humiliating and degrading treatment, rape,
enforced prostitution and any form of indecent assault () and slavery, are
acts which are strictly forbidden under IHL. Therefore, the unlawful attacks led
284
For more details see Articles 148 and 149 of the Fourth Geneva Convention.
285
See Rule 93 of the International Customary law.
286
See common art.3 GC.
287
See ICRC, Rule 93. Rape and Other forms of Sexual Violence
<http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter32_rule93> (ICRC, How does
law protect in war ICRC Manual, Vol.1, chap.32) accessed on J une 2013.

82

by the national militias on the Congolese civilian population, during the fights
against the Congolese Government are concerned by these provisions and
should be prosecuted based on this principle. Until 2002 and the creation of the
International Criminal Court,
288
the main protection for women against sexual
violence was in the GC and its additional Protocols. However, the present
provisions had been criticized as being outdated or not being enough protective
for the victims.
289
Indeed, the IHL qualified rape as attack against the dignity
more than as an attack against the physical integrity which led the people to
think that rape was not a crime as serious as torture or slavery.
290
That has also
resulted to a culture of impunity in which, rape had not been prosecuted
enough.
291
These critics have led the International community to incorporate
inside the Rome Statute the notion of rape and more generally sexual violence
as crimes against humanity and war crimes.
292
Although the crime against
humanity has not been defined by any binding text yet, the international
community agreed to consider that it refers to acts committed in the context of
a generalised and systematic attack against the civilian population, in time of
war or peace in order to persecute a determined group as such.
293

288
International Criminal Court (ICC) is ruled by the Rome Statute.
289
Amy Barrow, UN Security Council Resolutions 1325 and 1820: constructing gender in
armed conflict and International humanitarian law (March 2010) 92 International Review of
the Red Cross (No. 877) 221, at 227; see also Solange Mouthaan, The prosecution of gender-
based crimes at the ICC: challenges and opportunities (2011) 11 International Criminal Law
Review 775, at 783.
290
Ibid.
291
Amy Barrow, UN Security Council Resolutions 1325 and 1820: constructing gender in
armed conflict and
International humanitarian law (March 2010) 92 International Review of the Red Cross (No.
877) 221, 233-234.
292
Human Rights Watch, La Rpublique dmocratique du Congo: la guerre dans la guerre
Violence sexuelle contre les femmes et les filles dans lest du Congo (The DRC: war in war
Sexual violence against women and girls in the eastern Congo) Human Rights Watch Report
(J une 2002) at 56.
293
Human Rights Watch, En qute de justice : Poursuivre les auteurs de violences sexuelles
commises pendant la guerre au Congo (In pursuit of Justice : prosecuting the perpetrators of
83

In order to prosecute a rape as a crime against humanity, the ICC held that it
suffices to prove that the act was inscribed in a context of a series of acts of
violence whose the nature and severity may differ considerably.
294
Therefore,
a single sexual assault can be enough to constitute a crime against Humanity if
the prosecution can prove the link between this act and other violations of the
Human rights of the civilian population in time of armed conflict.
295
Any
person can be held liable for a crime against humanity.
In that context, the ICC has opened its investigation in the situation of the
Democratic Republic of Congo in 2004 after the DRC formally request that the
Prosecutor investigate potential crimes under the Courts jurisdiction.
296
These
crimes include systematic and generalized attacks on civilians as mass rape,
mutilation and sexual slavery committed anywhere in the territory of the DRC
since the entry into force of the Rome Statute, on 1 J uly 2002. On 23 J une
2004, the Prosecutor announced his decision to open the first investigation of
the ICC
297
. Since then, seven arrest warrants have been issued for war crimes
and crimes against humanity (on the Congolese soil) against Thomas Lubanga
sexual violence committed during the Congo War) Human Rights Watch Report Vol. 17, No.
1(A) (March 2005) at 27.
294
Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (the Foca case),
from the appeal Court (12 June 2002), IT -96- 23/1, [419].
295
1(A) (March 2005) at 27.
296
1(A) (March 2005) at 55.
297
Amnesty International, Il est temps que Justice soit rendue: La Rpublique dmocratique
du Congo a besoin dune nouvelle stratgie en matire de J ustice(It is time for Justice to be
done: the DRC needs a new strategy in matter of Justice) Amnesty International Report (2011)
at 16-17.
84

Dyilo, Germain Katanga, Matthieu Ngudjolo Chui, Bosco Ntaganda, Sylvestre
Mudacumura and Callixte Mbarushimana.
298

As already mentioned, the official conflict in the DRC ended in 2002; therefore
it might be argued that the sexual violence committed later could not be
prosecuted under IHL rules for IAC. Thus, other sets of rules have been
proposed to be used to avoid situations of impunity.
3.3.2 In International Human Rights Law
The International Human Rights Law is mainly constituted of Conventions and
Treaties that States are free to ratified or not. But, once ratified, these texts
have to be incorporated within the domestic legal systems to be implemented
properly by the States. Most of these Treaties prohibit inhuman and degrading
treatments, torture or attacks against someones corporal integrity and most
generally protect life. Besides, most of them seek to protect women against
rape or sexual violence. Thus, Congo was party to many drafts before the
outbreak of the conflicts such as the ICCPR and the CAT
299
(since 1996): the
latter prohibiting the use of torture by public officials or any person acting as a
public official.
300
Likewise, the Congolese State ratified in 1990, the
Convention of the Rights of the Child which penalizes torture
301
and sexual
exploitation of children
302
and states the right to freedom for people
303
.
304

298
See The Coalition for the International Criminal Court, Democratic Republic of Congo
<http://www.iccnow.org/?mod=drc>accessed on June 2013.
299
Convention against Torture and other cruel inhuman or degrading treatment (CAT).
300
1(A) (March 2005) at 27-28.
301
See art.37.
302
See art.34.
303
See art.40.
85

In that context, one can wonder whether the definition of torture encompasses
rape. If it is the case then the DRC would have the obligation to prosecute mass
rape occurring on its territory since 1998. In case it would not be able to do so,
the Congolese government is entitled to ask assistance to the ICC.
In 1998 already, several international instances of J ustice held that rape could
be in some circumstances, a form of torture. Indeed, the ICTY
305
and the
ICTR
306
had enumerated the circumstances in which rape could be considered
as a form of torture by stating that rape could be a form of torture if it is used
to intimidate, humiliate, discriminate, punish or destruct a person.
307
Then,
such acts once committed by public officials or with their consent would
represent a violation of the prohibition of torture.
308
Besides, in case of NIAC,
the international J urisdictions also held that torture could be perpetrated by
non-official actors.
309
Therefore, under the CAT, Congolese militia groups are
responsible for any acts of torture, including rape that they members might
have committed even after the official end of the conflict in 2002. In addition
to these provisions, one can add two other legal instruments protecting women
against gender-based violence, namely the ICCPR and the CEDAW.
310
Indeed,
304
1(A) (March 2005) at 27-28.
305
See ICTY. Prosecutor v. Anto Furundzija. IT- 95- 17/1- T (December 10
th
, 1998), [171]
concerning the definition of torture.

306
See Akayesu, note 26 [687].

307
1(A) (March 2005) at 28.
308
Ibid.
309
ICTY Prosecutor v. Zejnil Delalic and others No. IT- 96-21- T (16/11/1998), [473].
310
Convention Eliminating all forms of discrimination against women (CEDAW) that Congo
has ratified in 1986.
86

in the latter, it is considered that violence based on the gender is a form of
discrimination against women as it hinders the women to exercise and enjoy
their rights as men do.
311
The CEDAW provides for a lot of obligations
312
for
the States seeking to end sexual violence against women. For example it
reminds us of the importance of an efficient judiciary system composed of
staff that would have received the appropriate training to receive the victims
and that would offer the adequate medical and psychological assistance.
313

Besides, the ICCPR prohibits arbitrary arrest, detention
314
and slavery
315
and
protects freedom of marriage
316
. The prohibition of slavery has also been
reaffirmed by the article 6 of the CEDAW.
317

At a regional level, some legal protections have also been created. In that
context, the DRC has been party to the African Charter on Human and Peoples'
Rights since 1987.
318
This Charter ensures the elimination of all forms of
discriminations against women and the protection of the woman and the child
against any form of torture, degrading and ill treatments and slaveryThose
had been reaffirmed by the Protocol to the African Charter on Human and

311
1(A) (March 2005) at 28.
312
For more details see article 11 of the Convention.
313
The United Nations Committee on the Elimination of Discrimination against Women,
Violence lgard des femmes (Violence against women) General Recommendation No. 19
(onzime session, 1992), Document ONU CEDAW/C/1992/L.1/Add.15.

314
ICCPR, see art.8.
315
ICCPR, see art.23.
316
ICCPR, see art.9.
317
Article 6 states "States Parties shall take all appropriate measures, including legislation, to
suppress all forms of traffic in women and exploitation of prostitution of women.

318
See Articles 4 and 5.
87

Peoples Rights on the Rights of Women in Africa,
319
that forbids acts such as
female genital mutilation,
320
torture, ill treatment
321
and reaffirms the right to
dignity...
322
In doing so, the Protocol states that:

States Parties undertake to protect asylum seeking women, refugees,
returnees and internally displaced persons, against all forms of
violence, rape and other forms of sexual exploitation, and to ensure
that such acts are considered war crimes, genocide and/or crimes
against humanity and that their perpetrators are brought to justice
before a competent criminal jurisdiction.
323

All of those provisions shall be applied at all times by the contracting States i.e.
even in situations where it is officially unclear whether the country is facing
sporadic acts of violence only or is crossed by an armed conflict (international
or not). Therefore, the Congolese authorities are bound to respect these rules
when IHL is not applicable.
3.3.3 In Congolese national law
a) The military J ustice
319
Drafted in 1995 and ratified by the DRC in 2003.
320
See art.5.
321
See art.4.
322
See art.3.
323
See Article 11 (3) on the protection of women in time of armed conflict.
88

From 1972 to 2002, during war, criminal acts committed by the armed forces
were ruled by the Military Code of J ustice.
324
This code was applicable to the
national military forces but also to the rebels groups.
325
It is still used it today
despite the fact that since 2002 a new military code and a military criminal
code have been adopted.
326

But, while crimes such as murders have often been prosecuted, it has rarely
been the case for the sexual offences. That goes with the fact that for a long
time the DRC was in breach of the Statute for the ICC and the GC that provide
that States party should implement the international law prohibiting crimes
against Humanity, war crimes, rape and sexual violence.
327

Although the previous military code was criticized for its lack of disposition
sanctioning rape, the new military code does not change that fact but, states
that the Congolese criminal code is applicable to the military forces.
328
This
code foresees sexual offences.
329
Besides, the military criminal law provides
for serious harm in time of armed conflict and arbitrary acts detrimental to the
liberty.
330
This is likely to be used for sexual violence.
331
This law also
324
1(A) (March 2005) at 30.
325
Ibid.
326
Ibid.
327
1(A) (March 2005) at 31.
328
Ibid.

329
Ibid.
330
Military Criminal Code 2002, see articles 103 and 104.
331
1(A) (March 2005) at 31.
89

prohibits crimes against the humanity including sexual violence in the context
of generalized attacks against the civilian population or the State
332
.
333

Today, many NGOs such as Amnesty International, denounce the
incompatibility of the existing national law with the Rome Statute of the ICC
and the Geneva Conventions. Indeed, even if little amelioration have been
made since the 2006 Constitution, the impunity and the shortage of
prosecutions of sexual offences in Congo are striking.
334
Few reforms had been
proposed by the political leaders such as the Action Plan from the Minister of
J ustice in 2007 or the roadmap 2008 on the fight against sexual violence.
335
In
that context, a draft law has been made in order to create a court specialized in
the prosecution of international crimes.
336
But finally, none of the projects had
been examined before the parliamentarians.
337

b) The Congolese criminal Law
Under international humanitarian law, the occupying power has to apply the
national relevant law of the previous government, unless if it is necessary to
enact new law for the protection of the civilian population.
338
Therefore, the
332
See article 169.
333
1(A) (March 2005) at 31.

334
See Amnesty International, Il est temps que Justice soit rendue: la Rpublique
Dmocratique du Congo a besoin dune nouvelle stratgie en matire de J ustice(It is time for
J ustice to be done: the DRC needs a new strategy in matter of Justice Amnesty International
Report AFR 62/006/2011 French (August 2011), at 4.
335
Ibid.
336
Ibid
337
Ibid.

338
The obligation of the occupying power are enumerated in the 1907 Hague Convention (art.
42- 56), the fourth Geneva Convention (art.27-34 and 47-78), the first additional Protocol and
the rules of international customary law.

90

Congolese criminal law is still relevant during the armed conflicts in the DRC,
even in the territories controlled by the rebel groups.
339

In that context, the militia and the government are responsible for the acts
committed on the territories of Congo and should be prosecuted before the
domestic criminal Courts. Indeed, the Congolese criminal law
340
forbids rape
and sexual violence against women and provides for imprisonment sentences
for the offender.
341
The national law states that women must ask their husband
permission to go to Court.
342
This rule can clearly be an obstacle to the right to
J ustice and is a clear breach of the international criminal law principle which
forbids discrimination between men and women
343
(even so the practise has
shown that the national Courts do not check if such permission has been asked
by the wives). That law can be a deterrent for women who wish to go before a
J udge for the violence they endured if they think that their husband might
refuse. Besides, the law is discriminatory towards men as rape is only
considered as a crime committed towards women.
344
Thus, men are denied the

339
sexual violence committed during the Congo War)Human Rights Watch Report Vol. 17, No.
1(A) (March 2005) at 32.
340
The article 170 of the criminal code defines rape as forced penetration act on a woman. It
also foresees extenuating and aggravating circumstances such as perfidie, treat, violence and
the past conduct of the victim or her age.
341
1(A) (March 2005) at 32.
342
1(A) (March 2005) at 33.
343
The CEDAW prohibits any form of discrimination towards women, including
discrimination in the right to go to Court. The DRC is bound by this Convention as it is now
part of its national law since it ratified it.

344
91

right to see their rapists being prosecuted and so, are denied the right to a fair
trial. The national law
345
also provides for aggravating circumstances such as
the use of torture that had led to death.
346
In those circumstances, if death
occurs, the sentence can be the death penalty or life imprisonment for the
accused.
347

The gaps of the national law highlights the traditional conception of the
Congolese society and the unequal treatments that Congolese women endure
everyday who are seen as inferior to men and under their power.
348
Knowing
that such discriminatory rules exist toward women in peaceful time, one can
wonder how much the national courts were willing to sanction rape in that
special context of general violence.
3.4 The Management of the crime by the Congolese Public Authorities
Indeed in the DRC, all the armed forces have been held liable for violence
against women. Today, the Congolese J ustice has still not managed to control
the problem of sexual violence. In fact there is a widespread impunity of the
offenders because of the refusal of the community to consider these crimes as
serious offences against women. This is illustrated through the Congolese Law
that considers this crime as a crime against the honour of the husband and not
against the women.
349

1(A) (March 2005) at 32.
345
Congolese Criminal Code, see article 67.
346
1(A) (March 2005) at 32.
347
Ibid.
348
Ibid.
349
Ibid.
92

In the DRC, the law provides that combatants working for the national military
forces must be judged before the military courts for the offences they are
supposed to have perpetrated while militias members or mutineers are under
the jurisdiction of the civil tribunals. But, the Congolese law is obsolete and the
general climate of impunity prevents the Courts from providing J ustice.
350

Women are again suffering a double standard in treatment by the Congolese
community.
351
Another illustration of the problem can be found in the attitude
of public officials who, instead of being willing to improve the law in favour of
women, tends to see rape as a women's issue that women need to deal on their
own
352
or are corrupted and then, do not wish to prosecute the offenders.
353

The victims are then denied the right to access to a fair trial as the balance
between the parties is not respected when the defendant is protected by his
peers, or the J udge has been bribed.
354

When the victims are not considered seriously by the domestic legal system,
the offenders often integrate high-ranking official positions in the army or the
government because their choice to leave the militia groups and to stop fighting
during the transition.
355
So, they have the money to bribe the J udges and
avoid proceedings. The victims knowing that fact and suffering from the
stigma of having been raped prefer to remain silent. This integration brought
other problems as the current management of the army while most of the
350
Ibid.

351
Ibid.
352
Democratic Republic of Congo (April 2010) 28 Journal of Contemporaries Studies (No.2) 119
at 130.
353
Ibid.
354
Ibid.
355
The transition was the time during which the Peace Accord were signed in J uly 2003 and
the parliamentary and presidential elections in 2006.
93

former militias kept obeying to their former rebel groups and not to the
integrated military official institutions.
356
Then, even the official army had
been held responsible for sexual violence within the country.
The unwillingness to prosecute the perpetrators of sexual violence has resulted
in the loss of confidence by the survivors in the Congolese J ustice system. The
very few trials that dealt cases of rapes in the DRC did not help them to trust
the judicial system.
357
On the contrary, very few victims had been aware that
proceedings against their rapists were being made. One of these trials is known
as the Trial of Gbadolite which represents one of the most striking examples of
the failure of the national Courts.
358
These trials occurred after the mass crimes
against civilians perpetrated by the MLC troops during military operations
against a militia in the territory of Ituri.
359
In 2003, it was decided to institute a
military Tribunal to sanction sexual offenders. But among the 20 cases that had
been seen by the Court, only two were accused of rape and found
guilty.
360
Their sentences did not exceed one year in both cases and even took
into account extenuating circumstances such as intoxication.
361

The investigations were themselves very slight.
362
Indeed, there has been no
investigation on the scene of the crime.
363
Besides, victims were not contacted
356
Maria Maria Eriksson Baaz and Maria Stern Why do soldiers rape? Masculinity, violence,
and sexuality in the armed forces in the Congo (DRC), (03/06/2009) 53/2 International
Studies Quaterly 495 at 501.
357
For more details see Human Rights Watch, Rpublique Dmocratique du Congo: faire face
l'impunit (DRC: facing impunity) Human Rights Watch Information Sheet (J anuary 2004),
at 3.

358
Human Rights Watch, En qute de justice: Poursuivre les auteurs de violences sexuelles
commises pendant la guerre au Congo (In pursuit of J ustice: prosecuting the perpetrators of
1(A) (March 2005) at 33-34.
359
Ibid.
360
Ibid.
361
Ibid.
362
Ibid.
94

to testify in Court.
364
Only the colleagues of the accused were allowed to speak
before the Court, obviously mostly in favour of the accused.
365
The Prosecutor,
deprived of the basis resources to lead his investigations could not charge the
accused and the commanders for the sexual offences they committed.
366
The
only leader, who had been sentenced to jail before the Court, had been
sentenced on the ground that he allowed the insubordination of his forces and
not for the actual crimes committed by his soldiers when they were under his
command.
367

This questions the basic right to a fair trial for the victims.
In that context, it can be noted the recent effort of the Congolese Government
(pressured by the International Community and NGOs) to end the culture of
impunity. Effectively, it has started to rebuild the judiciary system, especially
by resetting the Tribunal in the district of Ituri where the first condemnations
for rape had been pronounced.
368
In 2004, thanks to the financial assistance of
the European Commission, the Tribunal de Grande Instance dIturi had been
reopened and had seen over 100 cases.
369
It had jurisdiction over cases
concerning unrecognised armed forces.
370
In that context, J udges had been able
to condemn several military leaders.
371
Unfortunately the number of cases
involving commanders that has come before the Court has remained low. More
startling, some of militia leaders have been offered amnesty and have been
363
Ibid.
364
Ibid.
365
Ibid.
366
Ibid.
367
Ibid.
368
Human Rights Watch, En qute de justice: Poursuivre les auteurs de violences sexuelles
commises pendant la guerre au Congo (In pursuit of J ustice: prosecuting the perpetrators of
1(A) (March 2005) 34.
369
Ibid.
370
Ibid.
371
Ibid.
95

integrated into the national forces. When prosecutions took place it mainly
concerned basic fighters who had been sentenced to small sentences as well.
372

Minors were also involved in the commitment of the crimes.
373
Very few
information had been given concerning their follow-up after their appearance
before the Court.
Besides even if the Congolese Civil System of J ustice tried to provide relief to
the victims, it has only prosecuted very few cases of rape.
374
The absence of
civil or criminal prosecutions against those responsible of sexual offences abets
to the silence of the victims and finally makes its own work more laborious as
it lacks of witnesses and thus of evidences . Besides, even the rare successful
proceedings before the civil J urisdictions had been highly criticised by Human
Rights organisations which argued that the procedural requirements to a fair
trial had not been respected (as a proper legal representation of the accused)
and that the victims are not supported by any psychological help during and
after the proceedings even though such proceedings are known to be very
traumatising.
375
Finally, even when some proceeding leads to the punishment
of the accused, the latter does not always end up in jail as he sometimes
manage to escape from prison during the troubles caused by the conflicts.
376

Therefore, many of the victims preferred to request help from the civil society
372
Ibid.
373
Ibid.
374
Ibid.
375
Ibid 38-39.
376
Amnesty International Il est temps que Justice soit rendue: La Rpublique dmocratique du
Congo a besoin dune nouvelle stratgie en matire de J ustice(It is time for Justice to be done:
the DRC needs a new strategy in matter of J ustice) Amnesty International Report (2011), at
58.
96

and more precisely, local organisations
377
that provide them with legal advice
and financial supports.
378

Thus, these organizations helped to create mobile Courts in the Eastern part of
the DRC. The mobile court programme has a strong focus on crimes involving
sexual violence.
379
It encompasses both civilian and military courts and has
been widely welcomed by local communities in South Kivu as well as by
international experts on justice.
380

Indeed, as the J udicial System in the DRC has been proven to be
underdeveloped, non-governmental organizations had to step in.
381
Therefore,
funding from organisations such as the American Bar Association (ABA), the
United Nations Development Programme (UNDP), and Lawyers without
Borders (ASF) have been canalized into local bar associations to allow them to
run the trials.
382
Transport and accommodation for the members of the legal
team have also been provided in order to reach remote areas.
383
They are also
giving in-depth training in legal ethics and fair trial rights to lawyers,
Congolese J udges and inspectors.
384
Survivors are encouraged as well to
complain to the police and are supported in the subsequent legal process.
385

377
Since 2010, mobile Courts have been operated in eastern DRC. They are backed by
international and local organizations which seek to provide a sense of J ustice to the civilian
population victim of mass sexual violence.
378
Amnesty International Il est temps que Justice soit rendue: La Rpublique dmocratique du
Congo a besoin dune nouvelle stratgie en matire de J ustice(It is time for Justice to be done:
the DRC needs a new strategy in matter of J ustice) Amnesty International Report (2011), at
49.
379
Passy Mubalama and Simon J ennings, Roving Courts in Eastern Congo Institute for Peace
and War Reporting ACR Issue 339 (13 feb.3013) <http://iwpr.net/report-news/roving-courts-
eastern-congo>accessed on J une 2013.
380
Ibid.
381
Ibid.
382
Ibid.
383
Ibid.
384
Ibid.
385
Ibid.
97

Unfortunately, their resources are very limited and so their help remains
insufficient.
386
This is even truer when it concerns sexual violence. Indeed, all
the legal experts recognize that sexual violence is inherently complex to prove
before a Court. It always needs medical evidence, experts and trained lawyers
and J udges.
387
Those are rarely present in Congolese domestic Courts, if not
present at all.
Once again it seems that the official means to carry out J ustice are inefficient in
a country plagued by corruption and mass violence. Community-based J ustice
or local approach by civil organizations might be the clue to end with the
culture of impunity and bring a feeling of J ustice to the victims. Yet it cannot
be sufficient on its own.
Unfortunately, the recent violence raise concerns about the recent efforts to
prosecute sexual violence and might slow or interrupt the prosecutions as the
Government has little or no authority in large parts of the east. NGOS and local
Courts are not enough to prevent such violence happening. Therefore, some
have argued that help should be sought from the International system
especially through the ICCs procedures. Whereof, the Congolese legislation
had been modified in order to include the Rome Statute provisions.
3.5 The consequences of the ratification of the Rome Statute for the Congolese
legislation and judiciary system
While the domestic legal system remains unsatisfactory, some may argue that
international law might fill the existing gasps in the protection of women
against sexual violence. In that regards, the Congolese legal system is a monist
386
Ibid.
387
Ibid.
98

system.
388
Therefore, the Constitution recognises the superiority of
international law over the domestic legal order.
389
International treaties and
conventions ratified or approved by the State become the domestic law after
their publication in the national Gazette and there is no need for any additional
legislation to give effect to the treaty at national level. The DRC ratified the
Rome Statute on 11 April 2002. Thus, the protection that this text entails
should be given effect within the national context. However, in practise if the
Parliament does not produce laws to implement the Rome Statute into its legal
system, the international principles remain unusable under the principle in
criminal law of nullum crimen sine lege (No crime without a previous penal
law). Furthermore it might lead to contradictions between the national
legislation and the international one.
Indeed, in case of contradiction between the domestic legislation and the
international one, notwithstanding the theoretical superiority of the latter, the
national provisions should be amended in order to make possible the correct
enforcement of the international norms.
390

The DRC draft bill provided to integrate the norms of the Statute of the
International Criminal Court within the criminal legislation.
391
Interestingly, it
also made the Appeal Court (of Common law) the only jurisdiction competent
to know infractions such as acts of Genocide, war crimes and crimes against
Humanity. Therefore, according to this draft, the military Courts, that used to
have jurisdiction over sexual violence, would not be able to hear those cases
388
Lee Stone and Max du Plessis, The implementation of the Rome Statute of the
International Criminal Court in African Countries (Chap.8.2.3) Institute for Security Studies
<http://www.issafrica.org/cdromestatute/pages/document.pdf>accessed on June 2013.
389
Ibid.
390
Ibid.
391
Ibid.
99

anymore, even in case involving members of the armed forces. Thereby, as part
of a general plan to adapt the organization of the criminal procedure it was
supposed to modify the code of Military J ustice. It also intended to organise
cooperation with the ICC.
392
This ratification implies the need for
harmonization of certain legislations with the requirements of the Statute of the
International Criminal Court, particularly in order to align national law
guarantees with those of the ICC each time as they prove to be a lower or
insufficient protection according to the international values.
393
In order to do
so, it prohibited amnesties, pardons and immunities for ICC crimes and gave
universal J urisdiction to the national Courts in regards to these crimes.
394

The implementation of the Rome Statute is of considerable importance in the
DCR as the country is currently investigated by the ICC. Besides, the situation
in the DRC is highly problematic for prosecutions to take place as the country
has been strangled by an ongoing crisis with Uganda and Rwanda for decades
now. The population, especially women and children are easy targets and fear
reprisal. The general context of violence in Congo makes the work of the
J udicial System difficult if not impossible. Therefore, some may argue that the
chaotic circumstances should allow the international community to deal itself
with the prosecution of people held responsible of sexual violence outside of
the Congolese boundaries where trained legal teams are present to represent
both sides fairly.
392
See supra [the principle of complementarity].
393
Lee Stone and Max du Plessis, The implementation of the Rome Statute of the
International Criminal Court in African Countries (Chap.8.2.3) Institute for Security Studies
<http://www.issafrica.org/cdromestatute/pages/document.pdf>accessed on June 2013.

394
Ibid.
100

One of the arenas is the ICC. Indeed, having signed the Rome Statute, the DRC
can be held responsible for war crimes, crimes against Humanity, crime of
genocide taking place within its territory, before the International
J urisdiction.
The drafters of the Rome Statute had been deeply influenced by the work of the
ad hoc Tribunals concerning sexual violence. Therefore, they broaden the
definition of war crimes and crimes against Humanity to incorporate sexual
violence. Later on, the members of the Courts reiterated statements about their
willingness to prevent sexual crimes. Additionally, the first prosecutions led by
the Trial Chamber concerned crimes occurred on the Congolese territories. One
could have expected that it would lead to the development of the case law on
sexual offences. Unfortunately the ICCs work did not follow this path.
Indeed, regarding the ICC proceedings, some have argued that the Court could
not prosecute the accused for sexual violence as it was currently been done by
the Congolese authorities. Yet, those comments are also objectionable when we
see the defect of the national prosecutions in that area. However, it seems that
the Prosecutor is taken this view in light of his recent decisions.
3.6 The ICC proceedings for the DRC
Under the article 53 of the Rome Statute, the Prosecutor for the ICC is entitled
to prosecute individuals responsible of war crimes
395
, crime against
Humanity
396
and Genocide
397
when, under the concept of complementarity,
domestic legal systems are unwilling or genuinely unable to carry out an
395
See Article 8 of the Rome Statute.

396

397
101

investigation or prosecution of an accused individual. The Statute of the
International Criminal Court was adopted in Rome on 17 J uly 1998 by a
majority of the states attending the Rome Conference. The Rome Statute
subsequently entered into force in J uly 2002.
As mentioned earlier the DRC has signed and ratified the Rome Statute.
Therefore, the Court may decide to prosecute crimes perpetrated on its
territory. Therefore, after investigations, the Prosecutor decided that his first
prosecutions would be directed against Thomas Lubanga Dyilo for the alleged
crimes committed on the Congolese territory since 2002.
398
This first
prosecution had been followed since by several warrants against alleged
criminals also suspected to have committed war crimes and crimes against
Humanity. While Lubangas prosecution focused on the conscription and
enlisting of children under the age of fifteen years and thus did not encompass
rape: it might be assumed that the Prosecutors strategy might evolve during
the future proceedings. Indeed, since then the international pressure to include
it has grown significantly.
Nonetheless, none of the individuals mentioned earlier have been sanctioned
before the ICC for sexual violence while it had been argued by NGOs that most
of them were responsible for sexual violence committed by rebels or
combatants under their command during the hostilities. Worst it seems that the
Court rejected the pyramidal strategy adopted before the ICTR to sanction
398
The ICC has jurisdiction to judge crimes occurred after 2002 only (date when the Rome
Statute came into effect according to its article 11 with respect to States that become party to
the Statute after 1 July 2002).
102

Mister Nobodies and which had been proved very efficient for the
prosecution of gender crimes.
399

Moreover, surprisingly while it was first requested by the former President
Laurent-Dsir Kabila that the ICC prosecute those offenders, the Congolese
government has since then, be quite reluctant to cooperate with the ICC
prosecution team and arrest them.
Besides, even though it might be argued that this choice made by the
Prosecution office aimed to ensure the prosecution and punishment of a
Congolese armed forces leaders before the International Criminal Court for war
crime and therefore to avoid a situation of impunity, some media and NGOs
argued that it might strengthen the feeling that the prosecution of sexual
violence and rape is not worth it and left behind by the International
J urisdiction.
400
This is even more striking when it is argued that they will
probably never be judged before the Congolese Courts for these acts.
However, it can be noted the recent efforts made by the ICC to prosecute
sexual violence in the region with the prosecution of J ean-Pierre Bemba, a
former Congolese official for the crimes committed in the Central African
Republic between 25 October 2002 and 15 March 2003. He bore criminal
responsibility for war crimes and crimes against Humanity (both charges
including rape). Nonetheless, no final judgment had been done yet.
399
For more details see William A. Schabas, The UN CriminalTribunals The former
Yugoslavia Rwanda and Sierra Leone (Cambridge University Press August 2006) 605; see
also Stephen Eliot Smith, Inventing the Law of Gravity: the ICC initial Lubanga decision and
its Regressive Consequences(2008) 8 International Criminal Law Review 331, at 344.
400
Solange Mouthaan, The prosecution of gender-based crimes at the ICC: challenges and
opportunities (2011) 11 International Criminal Law Review 775, at 776.
103

To conclude, in regards to the international proceedings it seems that it is
representative of the all controversies concerning the interference of
international actors in the DRC matters.
3.7 The controversial interference of international actors in the conflict
As it has already been pointed out earlier, external actors had played a role in
the civil war of the DRC. Not only have the neighbours who wished to
monopolize Congolese sources of wealth but also the western countries.
NGOs
401
accused private western companies and some governments to have
financed the terrorist groups while at the same time they were sending
inappropriate humanitarian aid. Sometimes, western governments used the
topic of the attacks on women in media in order to distract people from the
main important fact: their manipulation and support of the war. Some
Congolese leaders blame the international aid agencies for suffering corruption
the international aid agencies or providing unsuitable help. Worst, they accused
the ONGs of instrumentalizing the suffering of the victims to raise funds.
Those controversies concerning foreign interference in Congolese affairs have
had another consequence for the DRC: the country seems reluctant to reform
its national criminal Law, especially regarding the incorporation of the Rome
Statute for the ICC. Indeed, yet the DRC has not incorporated the law
underpinning the ICC the Rome Statute into its domestic code.
402
Even
though it has been argued that local Courts such as the mobile Courts have
401
Human Rights Watch, The curse of gold Democratic Republic of Congo Human rights
Report (2005) 2- and 7-8.
402
Passy Mubalama and Simon Jennings, Roving Courts in Eastern Congo Institute for
Peace and War Reporting ACR Issue 339 (13 feb.3013) <http://iwpr.net/report-news/roving-
courts-eastern-congo>accessed on June 2013.

104

been able to sue offenders for international crimes, their rulings are limited.
403

The central government is still reluctant to embark on reforms.
404
Besides, the
decisions to prosecute or not a criminal depends a lot on political pressure.
405

The money offered by the NGOs is often accused to lead to a J ustice for
sale
406
where the balance of J ustice is not always respected if never.
407

From the reading above it seems that the foreign interference in the Congolese
affairs has been highly controversial. International funds, once sent to the
DRC, are sometimes ill-used.
3.8 Conclusion:
Since 1998, the DRC has been victim to regular acts of violence, especially
towards women. Even so the Arusha Agreements were supposed to improve
the situation and end the conflict in reality, militias keep controlling the eastern
Congolese territories and raping massively.
As in Rwanda before, rape is used as a weapon of war to destroy the unity of a
group. Women are not perceived as individual victims as such but are attacked
because of their belonging to a group. Additionally the general climate of
violence in Congo is directly linked to the greed of national and international
actors and is facilitated by the disorganization of Congolese armed forces. In
that gender-based violence in Congo differ from the ones having taken place in
Rwanda.
403
Ibid.
404
Ibid.
405
Ibid.
406
Femke Van Velzen, a filmmaker in The Netherlands Justice for Sale (2012).
407
Passy Mubalama and Simon J ennings, Roving Courts in Eastern Congo Institute for Peace
and War Reporting ACR Issue 339 (13 feb.3013) <http://iwpr.net/report-news/roving-courts-
eastern-congo>accessed on J une 2013.
105

After having summarized the characteristics of sexual violence occurring in
both States in times of armed conflicts, this study shall compare both situations
in order to conclude on the best solutions to be applied to the problem.

Chapter 4: a comparative study of Rwandan and Congolese issues
4.1 Introduction
In the prior chapters, I have focused my work on producing an overview of the
situation regarding women and sexual violence in both countries since the
outbreak of the conflicts. I have first explained the scope and nature of gender-
based violence they have endured during the past two decades and then
summarized what has been the situation of the law and of the judicial system in
general.
Having summarized the situation in both countries, it seems relevant to
confront them. Thus, I will first, compare the way rape is perceived in Rwanda
and in the DRC. Doing so, I will see how the causation of the phenomenon had
been explained in both States, the influence one has played on the other and
106

finally I shall compare the solutions proposed in both cases. Then we could
conclude on what lessons could be learnt from those experiences in the future
process of legislative drafting.
4.2 The perception of sexual violence in Rwanda and the DRC
In most of the wars having taken place worldwide, rape was a common feature.
Indeed, while mostly discouraged or sanctioned by international customary law
of war, sexual violence had been widely practised and perceived as normal in
the context of general violence that surrenders armed conflicts.
408
Besides, it
has also been explained as the result of the frustration of soldiers far away from
home and their wives. This idea is also present in the conflicts studied here.
Indeed, the Congolese population often differentiate two kind of rape: the evil
rape and one less severe not designed to harm the woman.
409
The latter is the
consequence of nature and responds to the natural needs of men. But, in
addition to those, there is the evil kind that refers directly to the mind of the
rapist who is seen as wicked and has been used in the great lakes area.
Then, one of the main common points in both conflicts is the way rape was
used as a weapon of war against the community. Rape was not seen as an
attack against one individual, the woman, but rather against her community or
in the Rwandan case, her ethnic group. Women were not perceived as victims
on their own but just as a mean to an end to weaken the enemy. It was in both
cases widely practised, in a general manner by group of combatants (either
from the official army or by militias). When the commanders were not closing
their eyes in front of that violence, they encouraged it. They fomented the idea
408
See note 245, at 498.
409
See note 245.
107

that masculinity was based on a high sexual drive and violence against
vulnerable women was a way to express it.
410
The army institution facilitates
the hatred of women and so encourages rape. In both countries, women are the
wife, the mother or the daughter. They are the centrepiece of the communitys
cohesion. If you attack the woman, you attack her group. While they were
driven to rape women, soldiers were told that they were attacking their
husbands, fathers in other words the men supposed to protect their clans.
While in both cases, women were attacked to weaken their clans, in Rwanda,
the strife led to Genocide. Indeed, in the Rwandan territories, the Hutu used
sexual violence to eradicate the enemy, namely the Tutsi, perceived as another
ethnical group. Therefore, as mentioned earlier, Hutu used rape to spread
disease such as HIV/AIDS to destroy the Tutsi.
411
They raped Tutsi women in
order for them to give birth to Hutu children. In fact, the ethnic group
membership is based on the father. Consequently, if the father is a Hutu, his
son will be too, even though his mother is a Tutsi.
This aspect of the Rwandan Genocide is not present in the DRC. Indeed, the
attacks led towards women are directed towards a different goal. This
difference shows us the link between the causes of the conflicts and the causes
of the sexual violence that have occurred since 1994 in the region.
4.3 The causes and consequences of sexual violence in the region since 1994
410
Ibid 497.
411
(Herizons Magazine 2011), citing Sandra Ka Hon Chu and Anne-Marie de Brouwer, The Men
Who Killed Me: Rwandan Survivors of Sexual Violence (2009)
<http://www.herizons.ca/node/334 >accessed on June 2013.

108

After the Rwandan Genocide, several Hutu Rwandan genocidaires fled to the
DRC and created militias. Although, they pretended to defend Hutus interests
against the Tutsis, their real motive was to take over the Congolese mines
resources located at the border with Rwanda.
Then it is understandable that sexual violence was organised as a way to
provoke the chaos in the region. It was part of a broader campaign of violence
to control the area at the expense of the official government forces. Sexual
violence was a way to disorganise and undermine the group (ethnic or not) to
get the power in the region. Women were used as a tool not as protected
individuals in both situations. Gender roles attribution is the direct cause of that
phenomenon. The commonness of sexual violence in time of armed conflict is
the mirror of the social attitudes towards women in peacetime and can be seen
as its just resumption.
412
What differentiates these acts from those in time of
peace is the intensity, quantity and the visibility of that violence.
413
The use
of sexual violence as a weapon of war is effective only because of the pre-
existing concepts of honour, shame and sexuality in the Congolese societies
that are directly linked to womens bodies.
414
Masculinity is constructed
around the idea of violence and against woman. There is a need to create
cohesion in the community by other means that the hatred of a group because
of its gender.
415

412
Democratic Republic of Congo (April 2010) 28 Journal of Contemporaries Studies (No.2)
119, at 121.

413
Ibid.
414
Ibid.
415
Ibid.

109

This violence against women is the expression of a deeper problem in the
society: what is the role of the woman in the community?
Today, stereotypes on gender assigned roles continue and reinforce
discrimination based on gender and thus, gender-based violence. For instance
in Rwanda, women have to deal with poverty which is directly caused by
gender based forms of exclusion. Indeed, although 93 per cent of Rwandan
farmers are women and therefore play a greater role in agriculture, they
continue to experience difficulty owning land and other farming assets,
regardless of legal changes that technically permit womens ownership.
416

Besides, violence was rendered possible thanks to the general context of
violence and the disorganization of the armed groups. The main reasons of the
indiscipline in the army are explained by the criteria of recruitment, the lack of
appropriate training and the impunity. Indeed, even today the Congolese
national forces are struggling with authority issues. Since the Arusha
Agreements former militias members have been incorporated into the official
army forces in order to achieve peace. Nonetheless, a lot of them still obey
their militias and do not respect the orders given by their superiors. It can be
mentioned particularly, Colonel Innocent Zimurinda and General Bosco
Ntaganda that are either listed in the UN black list for Human rights abuses or
under international warrant of arrest by the ICC but who, in 2011, have been
incorporated at high ranking positions in the army.
417
Military disorganization
416
417
See lAssociation Africaine de Dfense des Droits de lHomme (ASADHO) (African
Association on the Human Rights Protection), La Protection des personnes et leurs biens
soumise dure preuve: les victimes accusent les forces de scurit! (Protection of persons and
property subject to the test: the victims accuse the security forces!) Rapport circonstanciel sur
110

facilitates rape. Besides, there is a financial motivation to rape as the man is
supposed to provide for his wife and children in exchange of the right to get
into sexual relationship. Yet, the Congolese army has not been able to pay
properly its soldiers who see looting and rapes as the only solutions. As they
cannot provide for their families, they believe that their wives would refuse
them and therefore some of them fall back on violence.
418

The military forces have also been held liable of arbitrary detentions and
restrictions of public liberty on the Congolese soil. Thus, it led the civilian
population to distrust the authorities. Women especially keep silent when they
had faced violence.
The general chaos of the society and the disorganization of the armed forces
hinder the implementation of the legislation supposed to protect women against
that violence and to organize the prosecution of those responsible. Then, even
if legislations exist to prevent sexual violence, the country is trapped in a
vicious circle. Sexual violence is used as a method of warfare to weaken the
group and dismantle the official armed forces organization and power over its
people. Then the latter are unable to prevent further violence to occur.
In both countries propositions had been made to prevent further violence
against women and to punish the offenders.
4.4 The international and national reactions to the mass sexual violence in the
region
linscurit en RDC (Circumstantial Report on insecurity in the DRC) No.001/2011 (May
2011) 4.
418
Democratic Republic of Congo (April 2010) 28 Journal of Contemporaries Studies (No.2)
119, at 123.

111

In the aftermath of a war, most of the infrastructures of the State are destroyed
and unable to fulfil their role. Still, there is a need for J ustice to prevent further
atrocities and rebuild a society based on trust. Therefore, international help is
often required in addition to national means of transitional J ustice.
In this case, two sets of actions had been taken in regards to gender-based
violence. First, an Ad hoc Tribunal for Rwanda has been created. It would
have jurisdiction over violence that took place in 1994 but let aside sexual
slavery, rapes occurred in the refugee camps (from 1995 to 1998). But, while
rape requires highly proficient expertise as it involves sensitive issues, the
international Tribunal legal team was not trained to deal with situations that
include mass rape and failed to bring professional expertise and a sense of
relief to the victims.
Second, in regards to the DRC conflict, no ad hoc Tribunal was created.
Instead this prior experience was expected to influence the work of the ICC to
avoid its past drawbacks. Unfortunately, both international judicial systems
have been highly criticized. Indeed, the ICC prosecution team strategy was to
prosecute commanders of the official army or leaders of rebels armed groups
for crimes that did not include sexual violence; such as the forced enlistment of
children in the armed forces, torture therefore it has been said that rape was a
second- class crime.
419
None of the Congolese officers having been prosecuted
before the ICC has been indicted of rape. This notion that gender based
violence are less serious crimes is also reflected within the GC provisions and
more specifically in its common article 3 that does not refer to rape at all.
419
Laurie Green, First-class crimes, second-class J ustice: cumulative charges for gender-based
crimes at the International criminal Court (2011) 11 International Criminal Law Review 529-
541.
112

Besides, rape is not seen as a grave breach of the GC but only as a violation of
the Treaties. Though, the Rome Statute,
420
influenced by the ad Hoc Tribunals
case law, had incorporated the notion of rape as crime against Humanity, war
crime, grave breaches of Geneva Convention and crime of Genocide (if other
elements are present). Therefore, it was hoped that it would improve the
situation of women against gender based violence. But, in practise, those
provisions had not yet been implemented to the Congolese situation.
While the international Courts have known little improvement concerning the
prevention and punishment of those crimes, the national systems have not done
so much better. In the Congolese context, reforms announced by the
government had not been implemented yet. Worst, militias have invaded Goma
few months ago and keep perpetrating mass acts of violence towards civilians.
In circumstances when mass violence is committed by the masses and the
official judicial infrastructures have been heavily destroyed or/and corrupted,
one can wonder whether some less official means could be used to provide a
sense of J ustice. Here we think about the Rwandan Gacaca courts.
After the Rwandan Genocide, domestic Courts have been unable to deal with
all the prosecutions. Therefore, controversial arenas of J ustice had been created
such as the Gacaca. Since 2008, those Courts are dealing also with sexual
offences for which the J udges have been trained on how to interact with
survivors of sexual offences. While some safeguards (trauma counsellors, trials
made in closed sessions) had been created to protect women from being
intimidated or stigmatised, they have been rarely implemented. Human rights
420
See art.7, crime against the Humanity; art. 72, war crimes and art.82b-Xxii, Grave
breaches to the Geneva Conventions.
113

organizations and media having reported that from 1995 to 2008 around 167
witnesses had been murdered; then victims were scared to go before the
Gacaca courts to testify.
421

They also felt that these courts were not independent courts that could provide
J ustice and punish their perpetrators. Also, it has been argued that judging
genocidaires before Gacaca Courts, generally reserved for small disputes,
would undermine the seriousness of the crimes. Indeed, the Courts are
community-based forum and therefore, their members might be linked to some
victims or Genocidaires.
422

Finally, J udges and witnesses in the Gacaca had been targeted by security
threats. Therefore, in the Congolese circumstances, where security forces are
widely corrupted, one can wonder whether such a safety issue would not
happen too. One main issue remains then to reorganize Congolese security
forces.
Besides, some criticism could be raised in regards to due process requirements.
Indeed, while mass rape has occurred, one can wonder whether J udges (who
might be related to the accused) would respect the principle of confidentiality.
Indeed, as it has been noted in the Rwandan Gacaca disputes, witnesses and
victims did not believe that it would be the case and were reluctant to go before
those J urisdictions. Additionally, commentators also argued that the absence of
counsels was against the principle of fair trial and that the confidentiality of the
421
422
2011), at 15.
114

cases was not always a good thing. In fact, Gacaca proceedings involving
sexual violence were not made in public. Yet, people knowing it would be in
huis clos (in camera) guessed that it was involving sexual offences. Besides,
the proceedings are out of control and there is a higher risk of corruption when
the trial is not made public. In Rwanda, some women were offered bribe in
exchange of dropping the case.
423

Moreover, those Courts were not considered by the victims as performing real
punitive and restorative J ustice. Therefore, even so, the idea of community
based J ustice might be interesting in a post war context where most of the
judicial infrastructures had been destroyed, it should be carefully studied and
implemented in respect with fair trial requirements and it might not be the best
arena to judge sexual offences. Victims usually do not wish their case to be
known by their community or family. In the DRC, women are not really
perceived as victims but are ashamed of what they endure. Thus, it might be
more relevant to work on the perception of gender role by the Congolese
population before bringing sexual offences cases before community- based
courts.
4.5 Conclusion
To conclude, it seems that national courts systems have both issues of impunity
and corruption. While the Gacaca failed to prosecute crimes committed by the
RPF, the Congolese Courts rarely prosecute members of the army; worst
former members of the militias (known to have committed crimes) are
incorporated in the national armed forces at high ranking positions. Witnesses,
423
2011) 114 citing a Human Rights Watch interview with Avega Head of Advocacy, J ustice, and
Information Sabine Uwase, Kigali (August 8, 2009).
115

J udges and victims are bribed or threatened. Here, we see that due process in
the region should be perceived as an economic right more than a political one.
Money is an important factor to ensure than independent and fair J ustice is
made for the victims. Even so the national efforts were well intended; there is
still the urgent issue of respect of the fair trial requirements. This is even more
relevant in regards to sexual offences as victims need to trust the institutions to
speak about what happened to them. Silence remains critical regarding sexual
violence.

Chapter 5: Conclusion
Legislations at all level exist to prosecute gender-based violence. While some
might argue that IHL is old fashioned in its terms and might not cite rape as a
grave breach of the GC, the case law, especially the Akayesu
424
case, shows
that texts can be interpreted in a way to include sexual violence as a war crime,
crime against Humanity or act of Genocide. For instance, the ICC Statute itself
sees sexual violence as a grave breach of the GC and foresees its prosecution.
National laws also prohibit sexual violence generally.
But the corruption of the Courts and a discriminatory socio-cultural perception
of sexual offences have negative consequences for the judicial system.
424
See Akayesu, note 56.
116

Nonetheless, the real problem is not the lack of legislation but its
implementation. Therefore, I would agree with the academic views that laws
should be redirected to modify education programs in a way that change the
expectations concerning gender roles. The first matter to prevent sexual
violence should be to change peoples way of mind regarding sexuality. Sexual
offences should be considered in the text and in practise as being as serious as
others such as torture, murder, crime against Humanity The way drafters in
general classify sexual offences as a sub-category of other crimes reflects the
way this act is perceived by the population. It undermines its effects.
Your gender should not define your role in the society. Masculinity should not
be perceived as a way to express violence towards women. Women role in the
society should be revalorised and not limited to the idea that they are mens
property.
425
In order to improve the legislation in that sense, women should
have a political role. In Rwanda, the majority of the population is composed of
women. They occupy 56 % of the seats at the Parliament (the highest
proportion in the world) and account for 55 % of the workforce.
426

Nevertheless, sexual offences have been a high feature of the Genocide and
sexual violence is still an issue that urgently requires attention. Here, it can be
noted that there is a dichotomy between the way women are perceived in the
community and the role of women in the political sphere. Thus, education on
the perception of genders role in the community is the issue. A top-to-bottom
approach to gender-based violation is not enough. Law are enforced when they
425
Laurie Green, First-class crimes, second-class J ustice: cumulative charges for gender-based
crimes at the International criminal Court (2011) 11 International Criminal Law Review 529.
426
117

are perceived as legitimate by the population. Therefore a bottom-to-top
approach should also be thought.
The CEDAW
427
provides for a lot of obligations for the States seeking to end
sexual violence against women. It states the importance of changing moral
attitudes by which women are regarded as subordinate to men or having
stereotyped roles. Therefore, it is not enough for women to be present in the
Parliament, but they should also have a role to play in the civil society that
does not perpetuate those patriarchal idea. Women should be recognised as
individual whose dignity must be respected as such.
Besides, reconciliation remains an issue in Rwanda nowadays. People still
perceive themselves as belonging to different ethnies. Educational programs
that promote equality ideas and the cohesion of the society should be
encouraged. If people stop perceiving themselves as separate enemies groups,
violence would be less likely to occur again. Rwandan population felt
pressured by the Government to achieve reconciliation. Therefore, it did not
work really well. That shows the relevance of a bottom-to-top approach to the
issue. NGOs and civil group work in general may be more efficient here.
Moreover, reorganizing the army is the second issue to be dealt with. The
official armed forces should be able to provide its soldiers proper wages and be
organized in a way that enables loyalty towards the hierarchy. The national law
should provide for recruitment guidelines (the prohibition of Amnesty, the
formation of soldiers, vetting in the army, police forces and the J udicial System
e.g.). Prior militias members should not be allowed to integrate the army or
the police forces but rather should take part in programs aimed to reintegrate
427
See art.11 especially.
118

them into the civilian society (when they are not held responsible of crimes)
such as services of general interests, to facilitate their come back to work
International funding here might be a solution to create an independent army
that later would be able to efficiently deal with militias and control the mine
resources. An independent committee (funded by an international organization
for example)
428
shall be created to control the good use of those funding to
prosecute offenders and reorganise armed forces. Once organized and with
resources, it should be easier to arrest those responsible of sexual violence and
that would end the impunity and create trustful infrastructures for the
population. Also, J udges would be less susceptible of being bribed. J ustice
would not be selective.
429
Indeed, in Rwanda, the RPF had been accused of
around 25 000 to 45 000 rape between April to August 1994 in Rwanda. But
none has been judged before the Gacaca. Additionally, while the Gacaca law
gave jurisdiction over war crimes, in practice political pressure led the Courts
to prosecute only crimes against humanity and Genocide.
430
Impunity stays an
issue in both countries.
Besides, when the fair attribution of wealth will be reached, people will be
more willing to go to Court. Indeed, most of the women do not go to Court also
because their first problem remains to insure their livelihood.
431
J ustice comes
later. However good, enabling survivors to speak without fear or shame about
their experiences is imperative. It reminds the society to remain vigilant against
428
See supra in this paper, [The management of the crime by the Congolese public Authorities]
concerning the financial assistance of the European Commission.
429
For more details see Human Rights Watch, Rwanda, J ustice Compromised: The Legacy of
Rwandas Community-Based Gacaca Courts, Human Rights Watch Report No. 1-56432-757-4
(May 2011), 119.
430
Ibid.
431
For more details see Amnesty International Il est temps que Justice soit rendue: La
Rpublique dmocratique du Congo a besoin dune nouvelle stratgie en matire de J ustice(It
is time for J ustice to be done: the DRC needs a new strategy in matter of Justice) Amnesty
International Report (2011), at 52.
119

sexual violence. The international community can contribute to this process by
helping civil organizations to raise awareness and provide legal advice to the
victims but also to lobby the Government to prosecute gender-based crimes. It
would be even better perceived by the population if it comes from civil groups
instead of foreigners. This is even truer in this region where foreign influence
had been so objectionable.
The influence of NGOs has already showed some success and led to several
initiatives to bring J ustice to the survivors of sexual violence in the DRC
especially. Here, we think about the Congolese mobile courts having
jurisdiction over sexual offences. Internationally funded those courts provided
lawyers to the victims and accused of sexual violence. This kind of initiatives
should be encouraged even so they have known some drawbacks.
Mediatisation of sexual crimes might also bring some results as it has been
seen for the ad hoc Tribunal for the former ex- Yugoslavia. It is in all
Governments best interest to keep a good image in front of the international
community and also before its population. This mediatisation can be pushed
by the civil society and organizations.
To conclude the African Great Lake region has been crossed by mass gender
based violence since the early 90s. Several solutions at all levels had been
proposed but none of them seems to have been completely successful. Yet, the
study of this phenomenon of mass rape has showed the complexity of the
conflicts in the area and the interdependence of the economy with the
legislative and judicial processes.
Indeed the main issue concerning sexual offences is not the lack of texts that
punishes it but their implementation. The lack of will to prosecute sexual
120

offences is mostly explained by the perception of gender-roles in the
community.
Therefore, the next step to improve the situation in regards to these issues,
especially in the region of the Great Lakes, is the promulgation of laws that
provide for educational measures but also fight corruption. In a State where the
J udicial and police infrastructures work independently and efficiently to
prosecute those crimes, the seriousness of the latter wont be questioned
anymore and the perception of gender-based role would be influenced as well.
It is then a double way influence that will lead to the required change. Besides,
foreign influence has played an objectionable role in the conflicts in the region.
Thus, I would concur with NGOS that do not refuse external interferences but
warn on the kind of intervention that western actors should play.
121

122

Abbreviations

ABA American Bar Association
AP Additional Protocol to the GC
ASF Lawyers without Borders
CEDAW Convention Eliminating all forms of discrimination against women
DRC Democratic Republic of Congo
ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms
ECtHR European Court of Human Rights
FARDC Forces armes de la Rpublique dmocratique du Congo (Armed forces for the
DRC)
FDLR Democratic Forces for the Liberation of Rwanda
GC Geneva Conventions
IAC International Armed Conflict
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICL International Criminal Law
ICRC International Committee of the Red Cross
ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the former Yugoslavia

IESS Information and Evidence Support Section
IHL International Humanitarian Law

MONUC Mission de l'Organisation des Nations unies en Rpublique Dmocratique du
Congo (United Nations organization in mission in the DRC)

MONUSCO Mission de l'ONU pour la stabilisation en Rpublique Dmocratique du Congo
(United Nations Organization Stabilization Mission in the Democratic Republic of Congo)
NIAC Non international Armed Conflict
OHCHR Office of the High Commissioner for Human Rights
123

RFDA Rseau de Femmes pour un dveloppement associatif (Womens Network for the
associative development)

RFDP Rseau des Femmes pour la Defence des Droits et de la Paix (Womens network for
the rights and Peace protection)

UNDP United Nations Development Programme
UNODC United Nations Office on Drugs and Crimes
WVSS Witnesses and Victims Support Section

124

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Table of Legislation

Congolese Legislation
Congolese criminal code, Titre 1 s.5 art.67, Titre 4 s.2 art.169 -170.
Military Criminal Code 2002, ch.3 s.1 art. 103-104.
Rwandan Legislation
Organic Law No.16/2004 (19/6/2004) hereinafter 2004 Gacaca Law
Organic Law of March 1, 2007 Establishing the Organization, Competence and Functioning
of Gacaca Courts Charged with Prosecuting and Trying the Perpetrators of the Crime of
Genocide and other Crimes Against Humanity, Committed between October 1, 1990 and
December 31, 1994, see art. 11 (hereinafter 2007 Gacaca Law).

International Legislation
African Charter on Human and Peoples' Rights, Part.1, chap.1 art. 4-5
Additional Protocols to the 1949 Geneva Conventions
AP I, Part. IV, Chap. III art.76
1949 Geneva Conventions, Common art.3
Fourth GC Part III Section I art.27 and Part IV Section I, art. 144
CEDAW (Convention on the Elimination of all forms of discrimination against Women) art
6+11
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (10.12.1984).
Convention on the Elimination of All Forms of Discrimination against Women (1979) and its
Optional Protocol of 1999
Convention on the Prevention and Punishment of the Crime of Genocide
Convention of the Rights of the Child
European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR)
ICCPR Part III art. 8-9 and 23.
Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in
Africa art 3,4, 5 and11.
132

United Nations Convention on the Rights of the Child of 1989
UN Security Council Resolution 1820 (2008)
UN Security Council Resolution Resolution 2076 (December 2012)
Rome Statute adopted 17 J uly 1998 entered into force 2002 (Chap.7), art 6 art.7; art. 72, and
art.82b-Xxii and Part V art.53

133

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