2007 - The Rwandan conflict and the prosecution of rape

AUSTRALIAN RED CROSS RESEARCH PAPER:SUMMARYRWANDA AND THE INTERNATIONAL CRIMINAL TRIBUNALFOR RWANDAPlease note that material in theseresearch papers ("Material") isintended to contain matters whích maybe of interest. The Material is not, andis not intended to be, legal advice. TheMaterial may be updated and amendedfrom time to time. lle endeavour to takecare in compiling the Material; howeverthe Material may not reflect the mostrecent developments.Rwanda is a small, central African republic with a history of violence and ethnic tension.The conflict that plagued the nation peaked between April and June 1994, when politicaland ethnic violence between the Hutu majority and the Tutsi minority erupted.Throughout this period between 500,000 to a million Tutsi were killed, up to two millionrefugees fled to neighbouring countries and between 250,000 and 500,000 rapes wereperpetrated against Tutsi women by Hutu militia, soldiers of the Rwandan Armed Forcesand other civilians.Parallel investigations led by the UN High Commissioner for Human Rights, the UNCommission on Human Rights and the Security Council empowered Commission ofExperts revealed a pre-planned and systematically coordinated campaign of genocide.Each investigation advocated for the UN to establish an ad hoc international tribunal oralternatively extend the jurisdiction of the lnternational Tribunal for the FormerYugoslavia. As the result of much debate, the Security Council voted to establish theInternational Tribunal for Rwanda as a subsidiary body of the UN Security Council on 8November 1994.Amongst other things, the International Tribunal for Rwanda's empowering statute allowsthe Tribunal to prosecute persons for "crimes against humanity" and genocide.In 1998 the International Tribunal for Rwanda became the first international war crimestribunal to recognise that rape and sexual violence could constitute oocrimes againsthumanity" and genocide. In order to determine the extent to which acts of sexual violenceconstituted "crimes against humanity''and genocide, the Tribunal was required to definerape and sexual violence, as there was no commonly accepted definition in internationallaw.The Tribunal found rape to be'oan act of aggression and that the central elements of thecrime of rape cannot be captured by a mechanical description of objects and body parts".Despite challenges to this definition, which described only the physical elements of rapeand shifted jurisprudential analyses away from the conceptual definition as articulated bythe Tribunal in 1998, a recent judgment of the Tribunal has found that the mechanical andconceptual definitions are not mutually exclusive and are actually substantially aligned.8833375_l

AUSTRALIAN RED CROSS RESEARCH PAPER:RWANDA AND THE INTERNATIONAL CRIMINAL TRIBUNAL FORRWANDAExplain the background to the conflict in Rwanda and the circumstances leading tothe creation of the International Criminal Tribunal for Rwanda ("ICTR")1.1BackgroundRwanda is a small central African republic with a history of violence and ethnic tension.Its population is composed of primarily three groups: Hutu, Tutsi and Twa. Each share thesame language and culture, but have recognisable differences.lIn1962 a Hutu-led revolution seized Rwandan independence from their Belgian colonialmasters. Following the revolution, Rwandans witnessed the mass exodus of the Tutsiminority to neighbouring countries such as Uganda and Tanzania.1.2Rwandan Patriotic Front attackOn I October 1990 militant refugees, known as the Rwandan Patriotic Front (RPF),attacked northern Rwanda from bases in Uganda. The incumbent one-party regime ofPresident Juvenal Habyarimana (Habyarimana), established after a military coup in1973, decided to exaggerate the RPF threat as a method of garnering dissident Hutusupport.2 Habyarimana portrayed all Tutsi as RPF collaborators and for three and a halfyears used physical as well as verbal abuse to redefine the population of Rwanda in"Rwandans", meaning those who backed the President, and "ibyitso" or "accomplices ofthe enemy''meaning the Tutsi minority and Hutu opposed to him.r1.3End of the monopolytn June 1991, as a result of internal political discord and intense pressure to allow politicalpluralism, the Rwandan Constitution was modified to allow multi-party democracy.Habyarimana delayed the establishment of a power sharing govemment for the next threeyears.a1.4Preparation for exterminationEarly in 1992,two political parties affiliated with Habyarimana formed militia whichwere trained and supplied by the Rwandan army (the "Interahamwe" known as Those whoStand Together or Those who Attack Together and the "Impuzamubambi"). During thenext two years these militia were involved in the killing of more than 2000 civilians,I Karhilo Jaana (1995) "The Establishment of the International Tribunal for Rwanda" Nordic Journal ofInternational Law Y ol 65, 683 -'l 13 at 6842Human Rights Watch (1999) Leave none to tell the story: Genocide in Rwanda, viewed l0 January 2007Ibido Orth Rick (2001) "Rwanda's Hutu Exhemist Genocidal Insurgency: An Eyewitness Perspectiv€' Small l|larsand Insurgencies Vol l2(l),76 - 109 at 838833375_l

mostly Tutsi. s These and other crimes w-ent unpunished, thus fostering a sense thatpolitical and ethnic violence was normal.6During l993,Habyarimana loyalists prepared for an attack on the minority. Recruitmentand training-of the Interhamwe expanded, whilst a'ocivilian self - defence force" tvasestablished.T Soldiers and political leaders distributed firearms to militia, and othersarmed most young men with weapons such as machetes. In response to these preparations,the RPF increased their number of supporters and troops.s1.5Arusha AccordsFollowing months of negotiations on 4 August lgg3,Habyarimana and the RPF signedthe Arusha Accords.e This agreement was to establish the rule of law, repatriate andresettle refugees and arrange power sharing under UN supervision. However theimplementation of the agreement proceeded slowly and violence continued to intensiry,resulting in further casualties and displacement.1.6The GenocideUnder intense intemational pressure, Habyarimana agreed to attend a one day summit inDar es Salaam to discuss a regional approach to the Rwandan crisis. His aircraft was shotdown upon its return to Kigali airport on 6 April 1994. Within hours of the crash, a smallgroup of Hayarimana's close associates began to execute the planned extermination.l0Government troops, the presidential guard and armed militias started attacking and killingHutu government officials and leaders of the political opposition, thus creating a vacuumin which they could take control.rr Soldiers and militia äiso began systematicàilyslaughtering Tutsi. Encouraged by radio propaganda, public authorities and tangibleincentives many ordinary citizens were mobilised to take part in the massacre.t2-In May and June, when the interim government was weakened by military losses and bythe first signs of international disapproval, Hutu began refusing to participate in thegenocide.r3 On 18 July the RPF däared victory. Tie next day it established a newgovernment of national unity.Between April and June 500 000 to a million Tutsi had been killed.'o Up to two millionrefugees, mostly Hutu, are estimated to have fled to neighbouring countries in fear ofTutsiretaliation.rs The capital city was destroyed with no utilities or góvernment infrastructure.From a total of 700 judges and lawyers, only 40 remained.165Human Rights Watch, supra6rbidTIbidI tbidetalk by Phillippe Gaillard, ICRC head of delegation in Rwanda from 1993 to 1994, Rwanda 1994: ,,La vraievie est absente", 18 October 1994, International Museum of the Red Cross and Red Crescent, Genevalo Human Rights Watch, suprar¡Ibid'2lbid r3lbidla Karhilo, supra 687rslbid16lbid8833375 I

1.7 Role of the UNIn October 1993 the peacekeeping force UN Assistance Mission for Rwanda (UNAMIR)was deployed pursuant to the Arusha Accords. The mandate of UNAMIR was to assistthe parîies in implementing the transitional arrangements as agreed. 17 After 10 Belgianpeacekeepers were killed, the Security Council voted on 21 April 1994 to scale down theoperation.ls However within a week, the UN Secretary General reported that massacrescontinued on a large scale and called for 'forceful action to restore law and order'.re OnI7 May the Security Council approved the upgrading of UNAMIRs force level to 5,500and gave the force an expanded mandate.Throughout the following months the Security Council authorised an arrns embargo onRwanda20 and approved the mandate, under Chapter VII of the UN Charter, for a Frenchledmultinational-force to embark on a humanitarian mission ('Operation Turquoise').21Through the ground work of UNAMIR and Operation Turquoise the scale and speed ofthe conflict became more widely known. The Security Council mandated the SecretaryGeneral to report on the violations of human rights and humanitarian law committed inRwanda.22 On 8 June in its authorisation of the continued deployment of UNAMIR theSecurity Council rated with the gravest concern reports indicating that acts of genocidehad occurred in Rwanda and recalled that genocide constituted a crime punishable underinternational law.23The UN High Commissioner for Human Rights and the UN Commission on HumanRights took up their own parallel investigations. The LJN High Commissioner for Humannightr appointed a Speciál Rapporteur on Rwanda2a whose reports revealed a pre-plannedand systematically coordinated campaign of genocide and advocated for the UN toestablish an ad hoc international tribunal or alternatively, extend the jurisdiction of thelnternational Tribunal for the Former Yugoslavia.2s These reports were instrumental inestablishing the need for intemational action to bring the perpetrators to justice.1.8The Commission of ExpertsOn 1 July 1994 the Security Council empowered the Secretary General to establish animpartial Commission of Experts. In late July the Secretary General appointed threeAfrican jurists on the Commission.26 The Commission's terms of reference included anexamination of the question of the appropriate venue for proceedings against perpetratorsof human rights violations.t7 tJN, Security Council Resolution 872,UN Doc. S/Res/872, adapted unanimously 5 October 199318UN, ^SecarityCouncil Resolution 9/2, UN Doc. S/Res/912, adopted unanimously 21 April 1994. The SecurityCouncil authorised the reduction of the force to 270, but the withdrawal halted at 450 troopste UN, Letter of the Secretary General to the Security Council, uN Doc. S/1994/518, 29 Apnl199420 SlRes/918, paragraphs 13-172t LIN, Security Council Resolution 929, UN Doc. S/Res/929, 27 June 199422tIN Doc. S/Res/918, 17 May 1994, para l8t3 LIN, Security Council Resolution 925,UN Doc. S/Res/925, 8 June 1994to LrNI, Report of the Commßsion on Human Rights on its Third Special Session, UN Doc. E/C N. 415-311,30May 1994, pp.4-825tÑ, Report on the situation of human rights in Rwanda submitted by Mr R. Degrri Segui, Special Rapporteurof the Commission on Human Rights, UN Doc. E/CN 4/1995 /7,28 June 199426Mr Atsu-Koffi Amega of Togo as Chairman, Mrs Mabi Dieng of Guinea and Professor Salifou Fomba of Malias members. lJN, Letter Dated 29 Juty 1994 from the Secretary General Addressed to the President of theSecurity Council, UN Doc. Sl 19941906, 29 luly 19948833375 I

In accordance with it's mandate,2T theRwanda Commission received and reviewedmaterial from govemments, human rights organisations and aid agencies and conductedtwo visits to the region. It produced a preliminary report containing findings of violationsof human rights, humanitarian law, crimes against humanity and specific euidence of thecrime of genocide.2s The Commission u.gu.d strongly in fâvour óf extending thejurisdiction of the International Criminal Tribunal for Yugoslavia to include theinternational crimes committed in Rwanda.1.9JurisdictionDuring the autumn of ß94 there was much debate over whether prosecution of thoseimplicated in the Rwandan genocide should take place before an international tribunal orbefore Rwandan courts.2e Although keen to have the trials held in Rwanda, the Rwandangovemment pursued the setting up of an international tribunal, largely due to the enormityof the task and the near complete destruction of the local judiciary. In September thegovernment requested the Security Council set up an international tribunal for Rwanda.3oAs a member of the Security Council, it then participated in the drafting of an enablingresolution and Statute for the new Tribunal.The Security Council voted to establish an international tribunal for Rwanda as asubsidiary body of the UN Security Council on 8 November 1994. Acting under ChapterVII of the UN Charter, the Security Council established the tribunal for the oosole purposeof prosecuting persons responsible for genocide and other such violations of internatiónalhumanitarian law committed in the territory of Rwanda and Rwandan citizens responsiblefor genocide and other such violations committed in the territory of neighbouring States,between I January 1994 and 3l December 1994.3r The Statute of the tribunal wasadopted as an appendix to the resolution.The Security Council Resolution was adopted with 13 votes in favour and one abstention(China). In spite of having initially called for the Tribunal to be set up, Rwanda votedagainst the adoption of Resolution 955. The new govemment argued that amongst otherthings the temporal jurisdiction of the Tribunal was too limited and would not cõver thelengtþ period during which preparations were made for the genocide; and, that itscomposition, with only two trial chambers, would prevent it from functioning properly inview of the large number of prosecutions to be brought.32 Nevertheless, on tñã aáyfollowing the adoption of the resolution Vice-President Paul Kagame announced hisgovernment's intention to cooperate with the new Tribunal.l]q*,Sscyity Council Resolution 935,UN Doc. S/Res/935, adopted unanimously I July 1994'" UN, Preliminary Report of the Commission of Experts established pursuant to Security Council Resolution935 (1994), UN Doc. S/1994/tt25,4 Oct t9942eKarhilo, supra 69430Lnl, Letter dated 28 September 1994from the Permanent Representative of Rwanda Addressed to thePresident of the Security Council, UN Doc Sll9g4/ll15, 28 Sept. 1994:l tlN, Security Council Resolution 955, UN Doc. S/Res/9SS, B Nov 199432Aptel, Cecile (lgg7) "The International Criminal Tribunal for Rwanda" The International Review of the RedCross Vol 321,675 - 6838833375 I

The ICTR Akayesu Case (1998) was groundbreaking in the Trial Chamber's analysisof the crimes of genocide and sexual violence. Specilically the Chamber found thatrape constituted an international crime. The Tribunal has since prosecuted for rapeand sexual violence crimes in key cases including the Muhímøna Case (2005), and isresponsible for developing important case law in this area.Focussing on the Akøyesu Case andthe Muhímana Case, discuss how the Tribunalhas defined international crimes of rape and sexual violence.2.1Rape and sexual violence during the conflictThroughout the Rwandan genocide rape and sexual violence, including mutilation andsexual slavery were perpetrated against Tutsi women by Hutu militia, soldiers of theRwandan Armed ForceJand other civilians.33 Military and political leaders at all levelsinstigated, directed, encouraged and engaged in this violence to further their systemiccampaign to destroy, in whole or in part, the Tutsi community. The rapes and sexualviolence perpetrated were used as political and military tools to terrorise the minoritygroup.34 The Special Rapporteur on the situation of human rights in Rwanda stated that"[a]ccording to^consistent and reliable testimony...rape was the rule and its absence wasthe exception."j)2.2LawArticle 3(g), 3(i) of the Statute of the International Tribunal for Rwanda gives the powerto the Tribunal to prosecute persons for "rape" and "other inhumane acts" whencommitted as part of a widespread or systematic attack against any civilian population onnational, political, ethnic, racial or religious ground. Artícle 4(e) allows prosecution for"outrages against human dignity, in particular humiliating and degrading treatment, rape,enforced prostitution and any form ofindecent assault". These offences are broadlyrefened to as "crimes against humaniry".Article 6 (1) of the Statute deems that those who "planned, instigated, ordered, committedor otherwise aided or abetted in the planning, preparation or execution of a crime referredto in Articles 2 to 4 of the statute, shall be individually responsible for the crime". Article6(3) provides that "acts committed by a subordinate will not relieve his or her superior ofcriminal responsibility if he or she had reason to know that the subordinate was about tocommit such an act or has done so and the superior failed to take the necessary andreasonable measures to prevent such acts or punish the perpetrators".2.3Akøyesas6 - FactsJean Paul Akayesu served as "bourgmsstre" of the Taba commune from April 1993 untilJune 1994. As bourgmestre, Akayesu had exclusive control over the commune and the33Although the exact number of women raped will never be known, it is estimated that between 250,000 and500,000 *pes occut"d.See Special Rapporteur of the Commission on Human Rights Report on the Situation ofHuman Rights in Rwandø Un Doc. Ê,1CN.411996168 (Jan 29,1996)3a Press Release, Human Rights Watch (1993) Human Rights l{atch Applauds Rwanda Rape Verdict: Setsinternational Precedentþr Punishing Sexual Violence as a W'ar Crime,2 September, viewed 7 February 2007,available at http://www.hrw.ordpress9S/sept/rrape902.htm35Special Rapporteur of the Commission on Human Rights Report on the Situation of Human Rights in RwandaUn Doc. ElCN.4ll996l68 (Jan 29,1996') at paragraph l636 The Prosecutor v Jean-Paul Akayesu Case No ICTR-1996-4-T, Judgment TC),2 September 1998 (ICTRReports, 1998, pp 44 - 404) ('Akayesu")8833375 I

communal police. He was responsible for the territorial administration of the commune,along with maintaining laws and public order.From April to June 1994 at least 2000 Tutsis were killed in the Taba commune whileAkayesu was in power. The killings were so open and widespread that it was alleged thatAkayesu must have known about them and had the authority and responsibility to preventthe killings, but failed to do so. Many civilians (mostly Tutsi) sought refuge at the BureauCommunal during this period. While seeking refuge it was alleged that female civilianswere regularly taken by armed local militia or the communal police and subjected to rapeand sexual violence. The prosecution claimed that Akayesu knew of the sexual violence,beatings and murder and facilitated them by allowing them to occur on or near the BureauCommunal premises.2.4Akayesu - Decision of the TribunalThe Tribunal found that Akayesu aided and abetted multiple acts of sexual violence byallowing them to take place on or near the premises of the Bureau Communal. Hefacilitated the commission of these acts through his words of encouragement, which sent aclear signal of official tolerance for sexual violence, without which the acts would nothave taken place.37 He was found to be individually criminally responsible for the rapesand sexual violence and to have committed acts of genocide.3sThe deJìnítíon of røpeIn order to determine the extent to which acts of sexual violence constituted "crimesagainst humanity", the Tribunal needed to define'orape" as there was no commonlyaccepted definition in international law.The Tribunal recognised that rape has been historically defined in national jurisdictions as"non-consensual sexual intercourse". The Tribunal viewed this description toomechanical, insofar that variations on the form of rape may also include acts whichinvolve the insertion^of objects and /or the use of bodily orifices not considered to beintrinsically sexual.3eThe Tribunal defïned rape as "an act of aggression and that the central elements of thecrime of rape cannot be captured by a mechanical description of objects and body parts".a0It found rape to be "a physical invasion of a sexual nature, committed on a person undercircumstances which are coercive".4lThe Convention against Torture and Other Cruel, Inhuman and Degrading Treatment orPunishment does not stipulate specific acts which constitute torture. This allowed theTribunal to find that in certain circumstances rape may constitute a form of torture for thepurposes of criminal liability. The Tribunal found rape to be akin to torture in that it is"used for such purposes as intimidation, degradation, humiliation, discrimination,punishment, control or destruction of a person".a2 The Tribunal held that "[]ike torture,rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted3t I¿ [eg¡]3sldUsql3er¿ [oao]oor¿ [sgz]4' Id [o¡z]o2td¡ssl18833375_l6

y or at the instigation of or with the consent or acquiescence of a public ofÏicial or otherpêrsott acting in ãn official capacity."a3The definítíon of sexual øssaaltSexual violence (which includes rape) was defìned as "any act of a sexual nature which iscommitted on a person under circumstances which are coercive". The Tribunal found thatthe act must be committed:(i)(ii)as part of a wide spread or systematic attack;on a civilian population; and(iiÐ on certain catalogued discriminatory grounds, namely: national, ethnic,political, racial or religious grounds.aaThe Tribunal held that sexual violence was not limited to physical invasion of the bodyand may include acts which do not involve penetration or even physical contact,-such asthe ordering of a girl to undress and do gymnastics naked in a public courtyard.as TheTribunal described three ways by which acts of sexual violence could be prosecuted underthe Statute - sexual violence falls within the scope of "other inhumane acts" set forth inArticle 3(i), "outrages upon human dignity" set forth in Article 4(e) and "serious bodily ormental hann" set forth in erticte 2(2)(b) of the Statute.46The meøníng of coercíonThe Tribunal found coercion to be a key requirement for the offences of rape and sexualviolence. It held that coercion need not be evidenced by a show ofphysical force."Threats, intimidation, exertion and other forms of duress which prey on fear ordesperation may constitute coercion".aT The Tribunal went on to say that "coercion may.^be inherent in certain circumstances, such as armed conflict or the military presence..."48Røpe ønd sexual víolence constítute genocídeThe Tribunal found that sexual violence was an integral part of the genocide in Rwanda.In doing so, the ICTR became the first international war crimes tribunal to recognise thatrape and sexual violence could,constitute genocide in the same way as any other act as long as they werecommitted with the specifi.c intent to destroy, in the whole or in part, a particulargroup, targeted as such. [RJape and sexual violence certainly constitute inflictionof serious bodily and mental harm on the victims [and isJ one of the worst[toJ tnfltct harrn on the victim as he or she suffers both bodily and mental harm."43l¿ [sgz]44t¿ [sgg]45l¿ [oas]o6t¿ [oss]n rd [oes]o8r¿ [ogg]4era ¡zlt18833375_l

The Tribunal found that:the acts of rape and sexual violence ...were committed solely agaínst Tutsíwomen, many of whom were subjected to the worst public humiliqtion, mutilatedand raped by more than one assailant. These rapes resulted in physícal andpsychological destruction of the Tutsi women, theirfamilies and theircommunitíes. sexual violence was an integral part of the process of thedestruction, specifically targeting Tutsi women and specifically contributing totheir destruction and to the destructíon of the Tutsi group as a whole."SoThe acts of rape satisfied the systematic requirement which is the foundation of the crimeof genocide. Rape was perpetrated against all Tutsi women and solely against them.slTutsi women were presented as sexual objects and Akayesu was a participant in this. Thesexual violence committed against the Tutsi woman was a step in the destruction of theTutsi group. It was a "destruction of the spirit, of the will to live and of life itself'.522.5Challenging AkayesuThe definítíon of rapeThe concepn¡al definition of rape pronounced inAkayesu was first challenged inKunarac".In Kunarac the International Criminal Tribunal for Yugoslavia ("ICTY") TrialChamber II referred to the Akayesu definition of.rape and tacitly accepted it, but then wenton to articulate the elements of rape as follows:54The actus reus of the crime of rape in international løw is constituted by thesexual penetration, however slight :(a) of the vagina or anus of the victim by the penis of the perpetrator or any otherobject used by the perpetrator; or(b) of the mouth of the víctim by the penis of the perpetrator; where such sexualpenetration occurs without the consent of the victim, Consentþr this purposemust be consent given voluntarily, as a result of the victim'sfree will, assessed ínthe context of the surrounding circumstances.The mens rea is the intention to effect this sexual penetration, ønd the btowledgethat it occurs without the consent of the victim.The ICTY Appeals Chamber later affirmed this'odefinition".55 Although not binding onthe ICTR trial or appeals chambers, this narrower Kunarac definition held persuasiveauthority with regards to the definition of rape and was adopted in subsequentjurisprudence of the ICTR Trial Chambers. In Semanzas6, Kajetíjelió7 and Kamuhandass50r¿ [z:l]stn?zzlttrcUlzls3Prosecutor v Dragoliub Kunarac et al CaseNo IT-96-23-T and96-23/1, Judgment (TC),22February 2001('Kunarac")54Id ¡4601, [437], approvedin Prosecutorv Dragoljub Kunarac et al, CaseNo IT-96-23-T and96-23/1,Judgement (AC), 12 June2002 at [l28] ("Kunarac Appeal")" Kunarac appeal at[127 -128]'o The Prosecutor v Laurent semanza case No., IcrR-1997-20-T, Judgment (TC), 15 May 2003s7 The Prosecutor v Juvenal Kajelijeti, Case Nó. ICTR-1998-444-T, JudgmeÀt un¿ S.nt"nce (TC), I December20038833375 I

the ICTR Trial Chamber described only the physical elements of rape and shiftedjurisprudential analyses away from the conceptual definition of rape an enunciated inAkaeysu.seHowever, in the recent judgment, Muhimana60, Trial Chamber III re-expanded thedefinition of rape under international criminal law. The Chamber considered thatKunarac was "ãctually substantially aligned"6l to the Akayseu definition and stated that:the Akayseu definition and the Kunarac elements are not incompatible orsubstantially dffirent in application.llhereas Aknyesu reþted broadly to a"physical invasion of a sexual nature", Kunarac went on to articulate theparameters of what would constitute a physical invasion of a sexual natureamounting to rapeo"The Trial Chamber found the accused guilty of rape as both an act of genocide and acrime against humanity.The relationship between consent and coercionIn Kunarac the Appeals Chamber recognised, as articulated,in Akayesu, that coercionprovides clear evidence of non-consent. The Appeals Chamber explained that whilst theTrial Chamber focused on the absence of consent as the essential element of rape, it didnot "disavow the Tribunal's earlier jurisprudence , but instead sought to explain theevidence between force and consent"63. The Appeals Chamber opined that whilst force orthe threat of force provides clear evidence of rape, it is not a constituent element. Thereare other factors which would render the act of sexual penetration non-consensual.ln Muhimanø the Trial Chamber reinforced Aknyesu by stating that'ocoercion is anelement that may obviate the relevance of consent as an evidentiary factor in the crime ofrape".64 It further articulated that "most cases charged under international criminallaw...will be almost universally coercive, thus vitiating true consent."65ConclusionMuhimana is cunently on appeal in the ICTR. Whilst the Trial chamber has realignedjurisprudential analyses with the groundbreaking conceptual definition as articulated inAkayesu, it remains to be seen whether subsequent Chambers in both the ICTY and theICTR adopt the reasoning of the Trial Chamber in Muhímana.s8 The Prosecutor v Jean de Dieu Kamuhanda, Case No. ICTR-1999-544-T, Judgment and Sentence (TC),22January2004se See Prosecutor v Zejnil Delalíc et al, Case No IT-96-21-A', Judgement (TC), 16 November 1998 at Í478 - 479160 The Prosecutorv Mikaeli Muhimana, Case No ICTR-95-lB-T, 28 April2005 ("Muhimana")6trd ¡s+01ó2ra ¡sso163Kunarac appeal, supra [129 - 130]e Muhimana, supra [546]ó5r¿ [s+o]8833375_l