Case Review by Srishti Rajpoot, LLM, South Asian University

Case Review
ON

“The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR”

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Case Review by Srishti Rajpoot, LLM, South Asian University

Citation

The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal

Tribunal for Rwanda (ICTR), 2 September 1998

Relevance of case

It’s the first case in history that an individual is charged with crime of genocide. And the first
time when rape is constituted in the crime of genocide. The Akayesu judgement is likely to
become mere introduction to further development in Gender Justice by the International
Criminal Courts.

Facts

On April 6 1994 a plane crashed carrying 2 president one of Rwanda and one of Burundi and
both were killed at the moment.

Rwanda is divided into 11 parts and a bourgmestre was appointed to maintain law. Jean Paul
Akayesu was bourgmestre of the commune and he is one of the most powerful people of the
commune. It is so much powerful that the de facto authority of him is more than the de jure
authority. Akayesu belong to the Taba community and prior to his appointment as bourgmestre
he served as a teacher and school inspector. He was married and having five children. His basic
duty being bourgmestre is to maintain law and order of the area and make sure justice is served.

Between April and June of 1994, about 2000 Tutsis were killed in Taba. These killings are
common and conducted in public. The following events are under the control and responsibility
of Akayesu. The majority of those displaced in that area were Tutsis, and most of the women
during this mass displacement were routinely taken to separate areas and subjected to sexual
assault. Acts of sexual violence and murder were frequentplace close to the communal
premises. Most cases of sexual violence included threats of death or serious physical harm.
Their constant fear is related to their poor psychological and physical health. Akayesu aids in
the commission of sexual assaults.

A group of men, one of whose names is Fransis, killed a teacher on April 19, 1994, and they
had plans to kill Hutus. Even though one of the offenders tried to have Akayesu arrested, he
was not successful. Akayesu then gave the order to have them killed. And that's when the mass

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Case Review by Srishti Rajpoot, LLM, South Asian University

killing of Tutsis in Taba began. The Taba community's house-to-house search got underway.
Some people have made direct threats to kill their spouse and child if they don't get vital
information. destroyed a large number of homes and issued a directive to execute the
community's intellectuals. which was followed by the deaths of five Taba community
secondary school teachers.

Akayesu was arrested in Zambia in 10 Oct 1995. The incitement was conferment and the arrest
warrant was issued by Judge William H.S. on 16 Feb 1996.

Issues

1. Whether Akayesu liable for crime against humanity took place in Rwanda?
2. Whether an individual be liable for crime of Genocide?
3. Whether Genocide involve the crime of Rape or sexual violence?

Provisions Involved

Statute of Tribunal –

• Article 2(3)(a)- Genocide

• Article 2(3)(c)- Direct and Public Incitement to commit Genocide
• Article 2(3)(e)- Complicity in Genocide
• Article 3(a)- Crime Against humanity (murder)
• Article 3(b)- Crime Against Humanity (extermination)
• Article 3(f)- Crime Against Humanity (Torture)
• Article 3(g)- Crime Against Humanity (Rape)
• Article 3(i)- Other Inhuman acts
• Article 4(a)- Murder and cruel treatment
• Article 4(e)- Outrages upon personal dignity, in particular rape, degrading and
humiliating treatment and indecent assault

Article 6(3) of Statute of Tribunal- If a superior knew or had reason to believe that a subordinate
was going to commit a crime or had already committed one and the superior did not take the
appropriate action to stop the crime or punish the perpetrators, then the superior was held
criminally liable for the actions of the subordinate.

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Case Review by Srishti Rajpoot, LLM, South Asian University

Geneva Convention –

Article 3 Common to all Geneva Convention

Additional protocol –

Article 4(2)(e) as incorporated in Article 4(e) of tribunal Statute.

Argument

The prosecution claimed that in addition to Tutsi killings in Taba, there was genocide in
Rwanda. Nonetheless, the accused is powerless to stop them from happening in such a
circumstance. Furthermore, the accused denied all knowledge of any sexual assault occurring.
He flatly denied the same, at least not in the vicinity of the common area.

The prosecution alleged that the killings and rapes were so widespread that the accused as a
mayor must be having knowledge of same and haven’t done anything to prevent the same.

Reasoning

Initially there were no sexual violence charges in Akayesu case. If a witness ‘J’ has not given
the fact that her 6-year-old daughter was raped the fact can never came in picture due to shame
and stigma of rape.1 Approx 5 witness testify regarding that they have either witnessed or are
raped with extreme acts of sexual violence.

Further there was no evidence against accused for personally raped. However, any
inconsistency can be explained by the difficulty of recollecting precise details several years
after the occurrence if events and trauma.

For genocide there are specific intent shown on part of the accused to destroy in part or in
whole the particular group.

1
B Van Schaack,‘Obstacles on the Road to Gender Justice: The International Criminal Tribunal for Rawanda as
object lesson’, (American University Journal of Gender, Social Policy and Law, 2009), 17: 361-408

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Case Review by Srishti Rajpoot, LLM, South Asian University

Judgement

After being found guilty of rape as a form of genocide, the accused was given three life
sentences and eighty years in prison. The case revealed that systematic rape occurred, and that
sexual violence was a key component in the effort to destroy the Tutsi ethnic group. The court
is convinced that military leaders encouraged their man to rape Tutsi women and that no
attempt was made to stop this from happening, even though there was no proof of explicit
orders to rape.

However, the court find Akayesu not guilty for complicity in war for crime of genocide.

The judgment was further appealed by Akayesu however his life imprisonment was maintained
and appeal was rejected.

Critical Analysis

The Akayesu judgement is one of the landmark judgements as it not only serves the question
of whether an individual can be liable for genocide and whether rape constitute genocide but it
also serves as potential source for future cases. There is certain landmark establish by this
judgement-

• In the following case the charges of rape were not specifically proved against the
accused. There can be number of reasons associated with same whether it is the trauma
in which victim are or whether it is the large time gap due to which the memory is not
able to trace the following facts clearly. Or reasons can be the fear they still face due to
the accused power. Still in this judgement the court took a landmark step to found the
accused guilty of rape without any specific testimony. As it’s a clear fact that rape is
always a part of wartime violence and the accused was denying the same which is
certainly ambiguous and matter of doubt. The judgement by holding accused
accountable for rape without reasonable doubt will defiantly serve as landmark for
further legislation at international level whether it is difficult for courts to find exact
evidence to held accused liable for rape.
• The judgement held that genocide can be committed by a single man. In the following
case Akayesu was in such a power position that have instigated the killing of two
president and further whosoever tried to make him arrest have been killed. Also, the
planned ethnic cleansing that took place in the Rwanda have a instigated authority of

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Case Review by Srishti Rajpoot, LLM, South Asian University

the accused. In such a scenario the court rightly hold that the genocide that took place
in Rwanda was on the orders of Akayesu and hence held him accountable for crime of
genocide. This will further help the international courts to locate the liability of
genocide in wartime violence where single person is holding power.
• The court further held that rape constitute genocide which it is the only court holding
the same till today. Genocide in general means the killing of people of particular area
or particular tribe as happened in this case. The Tutsis people that were subject to mass
killing in the particular case and one of the weapons which is used for such genocide is
rape. No doubt that rape in the legal as well as in social and psychological jurisprudence
regraded as a crime greater than even murder as it left the scares till lifetime and does
not only affect the person but the family and community at large. Hence rape is
definitely constituted as genocide which is rightly held by the court.

Despite being number of landmark steps taken out in this judgement there are certain issues
that came up at the international sphere. There are certain loopholes which can be amended so
that justice can be served to larger extent. These are as follows-

I. Even after inclusion of rape as genocide it was not further included in any statute per
se. For example, the international criminal court (ICC) itself does not include rape as
genocide. Even after knowing this very fact that there can be hardly any wartime
violence that remains without the crime of rape. The gender in this case or even in
Genocide convention is not regarded as a potential group which is capable of being
destroyed. This in turn made it difficult for further courts to observe this case as
precedence.
II. Rape was not particularly proved against the Akayesu as the atmosphere of the court is
not appropriate for protection of witness or we can say that the witness may not feel
that they are safe enough after giving the testimony. Approx 2000 people killed and
more than that suffered violence of different nature and of sexual violence as well still
only 5 women are able to give testimony. This clearly shows the loophole on part of
court to address the issue. The witness who even provide their testimony are mostly
illiterate hence not able to read their written statement.

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Case Review by Srishti Rajpoot, LLM, South Asian University

III. Each time a case is decided over rape. The society rethink that what rape actually is?2
However the international law society have lacked with this aspect to include this
another dimension of rape found in this case to include this in international sphere and
to make the future prosecution easy.

Akayesu case serves a landmark not only for international legal community. It also shows that
the victim even if are unspeakable the law is there to protect there right by tracing the truth in
the facts and realities that took place. The one sentence random testimony of a witness
regarding the rape of her minor daughter serves this case a landmark turn and even those who
are not able to fight for there rights the court address their rights by giving justice to them. It is
indeed a starting of a new era of criminal legislation for wartime rape with Akayesu case.

2
C.A. MacKinnon, ‘Defining Rape Intentionally: A comment to Akayesu’, (Columbia Journal of Transitional
Law, 2005) 44: 940-58

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