Prosecuting International Crimes in Africa - PULP - University of ...

72 Chapter 3
The Akayesu judgment, in a pioneering elucidation of the law,
underscored that, ‘rape is a form of aggression and […] the central
elements of the crime of rape cannot be captured in a mechanical
description of objects and body parts’. 39 This judgment thus elaborated an
important principle in international law that rape is committed not only
where there is non-consensual penetration of the victim’s vagina or anus
by the perpetrator’s private organ, but also non-consensual insertion of
objects and/or use of bodily orifices not considered to be intrinsically
sexual. This approach is critical in achieving the effective protection of the
sexual integrity of people by punishing multiple forms of its invasion. In
further elaboration of this principle, Akayesu defines rape as ‘[a] physical
invasion of a sexual nature, committed on a person under circumstances
which are coercive. Sexual violence, which includes rape, is considered to
be any act of a sexual nature which is committed on a person under
circumstances which are coercive’. 40
The above pioneering precedent has been endorsed in subsequent
judgments, including those at the ICTY. 41 The ICTR’s approach to the
‘non-consent’ requirement of the crime of rape is also ground-breaking.
Where sexual intercourse occurs with the consent of the victim, there is no
rape. In determining whether there was consent or not, the ICTR
elucidated an approach that rejects a mechanistic construction of the
element. The absence of consent, according to the ICTR, need not take
physical force – i.e. the perpetrator need not use physical force, but a court
must closely examine all surrounding circumstances to determine whether
the victim consented or voluntarily submitted to the sexual act. The ICTR
has underscored that, even if no physical force is used, the presence of
coercive circumstances negates consent. It has held that: 42
Threats, intimidation, extortion and other forms of duress which prey on fear
or desperation may constitute coercion and coercion may be inherent in
certain circumstances, such as armed conflict or the military presence of
Interahamwe 43 among refugee Tutsi women at the Bureau Communal.
The ICTR’s approach above gives the element of ‘non-consent’ its proper
content. The approach transcends mechanistic constructions and
application of the law, advances the law’s purposes, and enhances the
protection of victims. The approach has been endorsed in subsequent
judgments, including those at the ICTY. In Kunarać, the Appeals Chamber
39 Prosecutor v Akayesu para 597.
40 Prosecutor v Akayesu para 598.
41
Prosecutor v Kunarać (Case IT-96-23 & IT-96-23/I-A) Judgment 12 June 2002 para 127.
For subsequent ICTR cases, see Gacumbitsi v Prosecutor (Case ICTR-2001-64-A)
Judgment 7 July 2006 paras 147-157; Prosecutor v Muhimana Case (ICTR-95-1B-T)
Judgment 28 April 2005 paras 550-551.
42 Prosecutor v Akayesu para 688.
43 The Interahamwe (in the Kinyarwanda language, literally means ‘those who fight or
work together’) was a militia or paramilitary group that perpetrated many killings and
other acts of violence during Rwanda’s 1994 genocide.