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«Dissertation zur Erlangung des Doktorgrades der Juristischen Fakultät der Universität Regensburg vorgelegt von Kathrin Greve Erstberichterstatter: ...»

-- [ Page 106 ] --

and in 1994, he alone controlled the organisation and functioning of the communal police.3323 The de facto-authority of bourgmestres is far bigger than their de iure competence.3324 The Chamber determined that Art. 2 ICTR was applicable to the circumstances of the case, because genocide was perpetrated in Rwanda between April and July 1994, targeting the Tutsi group.3325 The acts of violence committed in Taba commune during the same period of time were part of this attempt at destruction.3326 The Tutsi group was viewed as ethnically distinct by those attempting its destruction.3327 This, according to the Chamber, was sufficient to qualify the Tutsi group as a protected group according to Art. 2 II ICTR.3328 Akayesu had been charged with genocide pursuant to Art. 2 II a, b ICTR.3329 During proceedings, four women - Witness H, JJ, OO and NN - testified to having been raped and, with the exception of Witness OO, to having witnessed sexual violence committed against other girls or women. Three more women, Witnesses J, KK, and PP, testified exclusively to rapes or sexual violence committed on other girls or women. Many of the acts described took place in public, and all were directed against Tutsi women.3330 Only some of the incidents which form the basis of the judgment are mentioned here.

Witness JJ testified that she could not even count the rapes she had been subjected to, saying that she was raped every time she met an attacker, in the forest or in the fields.3331 On two occasions, when she was going to be raped, Witness JJ and a group of women and girls were led past the Accused. The first time, he looked into her eyes, and the second time he said, “Never again ask me what a Tutsi women tastes like”, and, “Tomorrow, they will be killed”.

According to Witness JJ, the majority of women and girls were in fact killed. The Accused’s statements were like encouraging a player, and he had seemed to be watching over the rapes.3332 Witness PP, a Tutsi married to a Hutu, lived very close to the bureau communal and testified to the rape and killings of three women there. Alexia, the wife of a university lecturer3333 and her two nieces Nishimwe and Louise were brought to a pond by Interahamwe led by the Accused, after Akayesu had told them to bring the women there, adding, “Don’t you know where Ibid., paras. 59, 63-66, 67-69, 77.

Ibid., paras. 77, 73.

Ibid., paras. 126, 129.

Ibid., para. 169.

Ibid., para. 171.

Ibid., para. 129.

Prosecutor v. Jean-Paul Akayesu, Amended Indictment, 17 June 1997, ICTR-96-4-I, Counts 1-2., paras.

12A, 12B.

Prosecutor v. Jean-Paul Akayesu, Trial Chamber I, Judgment, 2 September 1998, ICTR-96-4-T, para. 449.

Ibid., para. 421.

Ibid., para. 452.

Ibid., para. 409.

the killings take place, where the others were killed?” The three women were then forced by the Interahamwe to undress and walk, run and perform exercises naked, “in order to reveal the Tutsis’ thighs”. All of this happened in the presence of about 200 people. The women were then raped. An Interahamwe called Pierre threw Alexia, who was pregnant, on the ground, lay on top of her and said, “Now let us see how the vagina of a Tutsi woman feels”.

She gave him her Bible before he raped her and said, “Take this Bible, for it is our memory.

You don’t know what you’re doing.“ She was held down and her legs were spread by several people as Pierre, Bongo, and Habarurena raped her. When her forces were leaving Alexia, she was turned over on her stomach and labour set in prematurely, while she was raped again.

Several Interahamwe then raped Nishimwe, a young girl who bled heavily. Finally, several men raped Louise, and then all three women were turned over onto their stomachs, beaten with sticks, and killed.3334 Witness KK, a Hutu woman married to a Tutsi, testified to the sexual abuse of Chantal, a young girl. Akayesu told the Interahamwe to undress her. She was a gymnast and forced to exercise naked. While Chantal marched naked in front of many people, Akayesu laughed and was happy. He then told the Interahamwe to take her away and to “ensure first of all you sleep with this girl.“3335 The Chamber found that sexual violence could constitute causing serious bodily or mental harm to members of the group, Art. 2 II b ICTR;3336 the damage caused need not be permanent and irreversible.3337 Further, imposing measures intended to prevent births within the group, Art. 2 II d ICTR, could be committed by sexual violence.3338 This also applied to measures with a psychological rather than a physical effect, like the trauma caused by rape Ibid., para. 437.

Ibid., para. 429.

Ibid., para. 688; see also Prosecutor v. Alfred Musema, Trial Chamber I, Judgment and Sentence, 27 January 2000, ICTR-96-13-TA, para. 156.

Prosecutor v. Jean-Paul Akayesu, Trial Chamber I, Judgment, 2 September 1998, ICTR-96-4-T, 502.

Ibid., para. 507, see also Prosecutor v. Alfred Musema, Trial Chamber I, Judgment and Sentence, 27. Januar 2000, ICTR-96-13-A, para. 158.

leading to the possible refusal to procreate.3339 The Chamber then defined sexual violence3340 and rape3341 in International Humanitarian Law.3342 Akayesu himself was not accused of raping a woman. Accordingly, the Chamber defined the difference between committing genocide as the principal perpetrator and between aiding and abetting:3343 Aiding and abetting does not necessitate the intent to destroy the targeted group.





Rather, it is sufficient to knowingly help the principal perpetrator of one of the acts mentioned in Art. 2 ICTR.3344 Akayesu had the intent to destroy and thus was convicted as a principal perpetrator.3345 The Chamber further found that Akayesu should have known and in fact did know that sexual violence was committed on the bureau communal premises or in close vicinity, and that women were taken away from there to be sexually abused. He did not take measures to prevent this, nor to punish the perpetrators. Rather, he ordered sexual violence, exhorted its commission, or aided and abetted it.3346 The fact that he as a local authority failed to oppose such crimes was found to be a form of tacit encouragement, which was strengthened by his presence during the commission of such acts.3347 Jean-Paul Akayesu was found guilty of killing members of the Tutsi group and of causing serious bodily or mental harm to members of the group, pursuant to Art. 2 II a, b, 6 I ICTR, because of his encouragement of the perpetration of crimes of a sexual nature, fulfilling the criteria of genocide.3348 He was sentenced to life imprisonment.3349 Prosecutor v. Jean-Paul Akayesu, Trial Chamber I, Judgment, 2 September 1998, ICTR-96-4-T, para. 508;

see also Prosecutor v. Alfred Musema, Trial Chamber I, Judgment and Sentence, 27 January 2000, ICTR-96-13T, para. 158.

Prosecutor v. Jean-Paul Akayesu, Trial Chamber I, Judgment, 2 September 1998, ICTR-96-4-T, paras. 598, 688: “Sexual violence: Any act of a sexual nature which is committed under circumstances that are coercive”.

Sexual violence can also be “other inhumane acts“ (Art. 3 i ICTR), “outrages upon personal dignity“ (Art. 4 e ICTR), and “serious bodily or mental harm“ (Art. 2 II b ICTR) and thus may qualify as a crime under all three Articles, see ibid., para. 688.

Ibid., paras. 598, 688: “Rape: A physical invasion of a sexual nature, committed on a person under circumstances that are coercive”.

Ibid., paras. 596, 688.

Ibid., paras. 540-545.

Ibid., para. 545.

Ibid., paras. 728-730, 734.

Ibid., para. 452.

Ibid., paras. 705-706.

Ibid., paras. 696-697.

Prosecutor v. Jean-Paul Akayesu, Trial Chamber I, Sentencing Decision, 2 October 1998, ICTR-96-4-T, p.

7-8.

4. Sexual violence as a Crime against Humanity (Art. 5 ICTY, Art. 3 ICTR): Dragoljub Kunarac, Radomir Kovac, Zoran Vukovic („Foca“)

–  –  –

In the proceedings against Dragoljub Kunarac and others, 3351 the first convictions of principal perpetrators of sexual violence were issued.3352 Besides, rape and sexual assault were accused for the first time as enslavement, pursuant to Art. 5 c ICTY.3353 The case concerns War Crimes and Crimes against Humanity committed by Bosnian Serbs against Muslims from April 1992 to at least February 1993 in the context of the conquest of Foca. Foca commune is situated to the south east of Sarajevo and borders Serbia and Montenegro. According to the 1991 census, its population was made up of about 40,000 persons, 51,6% of whom considered themselves as Muslims, 45,3% as Serbs, and 3,1% as “others”.3354 All counts regard sexual violence against Bosnian women and children3355 of Muslim faith.

The case has been called “rape camp case“, 3356 because the victims were detained in public buildings under miserable conditions and regularly taken away to be raped by Bosnian Serbs, who were all either soldiers or policemen, and brought back after some hours or days. 3357 Prosecutor v. Dragoljub Kunarac and Others, Trial Chamber II, Judgment, 22 February 2001, IT-96-23-T & IT-96-23/1-T, Testimony of Witness FWS-87, Transcript of 3 April 2000.

Prosecutor v. Dragoljub Kunarac and Others, Trial Chamber II, Judgment, 22 February 2001, IT-96-23 & IT-96-23/1, Counts 1-2, 9, 18-19, para. 883; Counts 22-23, para. 886; Counts 33-34, para. 888.

Dixon, Rape as a Crime, p. 699.

Prosecutor v. Dragoljub Kunarac and Others, Trial Chamber II, Judgment, 22 February 2001, IT-96-23-T & IT-96-23/1-T, para. 515, see also Dixon, Rape as a Crime, p. 699; Wäspi, Arbeit des ICTY und ICTR, p. 2454.

Prosecutor v. Dragoljub Kunarac and Radomir Kovac, Amended Indictment, 8 November 1999, IT-96-23PT, para. 1.1 Pursuant to Art. 1 of the Convention on the Rights of the Child of 20 November 1989, “child“ designs all persons who are not yet eighteen. The youngest of the victims was twelve years old, see Prosecutor v. Dragoljub Kunarac and Others, Trial Chamber II, Judgment, 22 February 2001, IT-96-23 & IT-96-23/1, para. 874. However, the more usual term “girl“ will be used.

Judgment of Trial Chamber II in the Kunarac, Kovac and Vukovic Case, Press Release, 22 February 2001, JL/P.I.P./566-e, p. 2. There had already been reports regarding sexual violence committed in Foca, see Final report, annex IX: Rape and Sexual Assault, UN Doc. S/1994/674/Add.2 (Vol. V), 31 May 1995, paras. 102-112;

Gutman, Witness to Genocide, p. 157-167; Stiglmayer, Vergewaltigungen, p. 133-148.

Prosecutor v. Dragoljub Kunarac and Others, Trial Chamber II, Judgment, 22 Februar 2001, IT-96-23 & ITpara. 35.

Some of the women disappeared.3358 Those who put up resistance were beaten in front of other internees.3359 Common to all camps was insufficient food, nearly inexistent hygienic installations, cramped space with few mattresses and the pervading climate of extreme fear.3360 This went so far that when FWS-50 was to be taken away and hid, her mother looked for her and handed her over to the soldiers, because she was afraid of what would happen to the other internees if her daughter did not go with the soldiers.3361 Some women were put at the disposition of perpetrators in private homes, whose household chores they were also forced to perform and who gave them to friends to be raped.3362 The number of the rapes contained in the Indictment cannot be calculated, but even so, their sheer amount is shocking. One of the witnesses estimated that she had been raped about 150 times in the first 40 days or so she was interned.3363 Some of the women were subjected to rape and sexual assault from the beginning of July 1992 until April 1993, and were handed on and sold several times, which made it difficult to contact their families even after the war had ended. One witness, who was 17 at the time, did not see her mother for two years, 3364 and Witness A.B. is still missing. 3365 The judgment mentions every time when women were in a room with soldiers, yet were not raped,3366 demonstrating the pervasiveness and systematic nature of sexual violence.

The impact of the judgement, which stresses the systematic perpetration of rape, enslavement, and humiliation of countless women and girls cannot be overestimated. In view of the slow pace at which war crimes are addressed in Republika Srpska, it is also of special meaning to the victims subjected to similar crimes,3367 being a sign that their suffering has not been forgotten and that the perpetrators, and not the victims, are guilty of the crimes.

Ibid., para. 81.

Ibid., para. 35.

Ibid., paras. 30-32.

Ibid., paras. 239, 812.

Ibid., paras. 41-43.

Ibid., para. 37. The statements of another woman that she had been raped more than a hundred time in the first two months of her captivity was deemed “entirely credible” by a gynaecologist who had examined her, see Gutman, Witness to Genocide, p. 164.

Prosecutor v. Dragoljub Kunarac and Others, Trial Chamber II, Judgment, 22 February 2001, IT-96-23 & IT-96-23/1, para. 273.

See Drakuli!, They Would Never Hurt a Fly, p. 52.

Prosecutor v. Dragoljub Kunarac and Others, Trial Chamber II, Judgment, 22 February 2001, IT-96-23 & IT-96-23/1, para. 257.



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