Sexual violence from the perspective of jurisprudence of the international criminal tribunals as the turning point
During the trial of Jean-Paul Akayesu, for the first time in its history, the International Criminal Tribunal for Rwanda or the ICTR attempted to define rape. This paper outlines the tribunal's concept of rape with reference to the genocide in Rawanda.
In the course of this procedure the ICTR aimed to move away from the restrictive concept of rape that exists in most national legislations. Indeed, during the genocide, rape could include the introduction of objects (sticks, machetes or other), which is why the Trial Chamber ( in September 1998) will adopt a broader approach to the act of rape. They established that rape was a crime of Genocide and sentenced Akayesu(a leader during the time of the genocide) to life imprisonment. The tribunal found that the crimes against the Tutsi women were accompanied with the intent to kill. The goal being to destroy the Tutsi tribe while inflicting acute suffering on them in the process.
The Furundzija is particularly important in the process of criminalization of sexual violence, because the judges broadened the definition of rape. Another important development is that the identity of the victim was made unimportant to the act i.e. the victim could be a man or a woman. This is a big step forward as some laws still define rape by referring exclusively to women. The judgement in the Akayesu trial defined sexual violence as "any sexual act committed against a person under circumstances which are coercive. " It is stated that "the act of sexual violence, far from being limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact. " i.e. the act of undressing a young girl and forcing her to do gymnastics in public constitutes an act of sexual violence.
The issue of consent:
The subject of coercion exists in all judgments that are related to sexual assault. In this regard, the ICTR is careful to cite the Akayesu judgment that "coercion should not necessarily be manifested by a show of physical force. Threats, intimidation, blackmail and other forms of duress which prey on fear or desperation may be constituted as coercion. These may be inherent to certain circumstances, such as in situations of armed conflicts (or military presence)"
The court will take into account the fact that victims were generally locked and this made it was impossible to escape. The court went further to state that even when the victims were free to leave the apartments, their psychological state was such that they would never have taken that risk.
The victim’s submission may result be a result of various factors other than that of physical force. These factors could include the circumstances, the victim's age, psychological state, and continued ill-treatment. These factors vitiate consent and entail the responsibility of the author.
Rape, a separate crime.
The drafters of the Statute of the ICTY could hardly ignore the issue of sexual violence as it has caused considerable concern within the international community.
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