Exploring the implications of the Akayesu judgment for gender jurisprudence

By Sanskruti Yagnik

People hold candles while holding a night vigil during a commemoration ceremony marking the 25th anniversary of the Rwandan genocide, at the Amahoro stadium in Kigali, Rwanda, April 7, 2019. Credit: Reuters/Baz Ratner

"From time immemorial rape has been regarded as spoils of war. . .now it will be considered a war crime. We want to send out a strong signal that rape is no longer a trophy of war.”

On September 2, 1998 the International Criminal Tribunal for Rwanda (ICTR) handed down a landmark trial judgment in the Akayesu case breaking new ground with respect to gender based crimes. It found that acts of sexual violence can constitute an element of genocide, becoming the first international tribunal to link the crime of rape explicitly to genocide. Subsequently, this resulted in the mindful drafting of the Rome Statute of the ICC, the ICC’s Elements of Crimes, and the ICC’S Rules of Procedure and Evidence.

Originally, the indictment against Jean Paul Akayesu did not include the charges relating to sexual violence. However, Judge Navanethem Pillay (the tribunal’s only woman judge), recognized the indicators of sexual violence which resulted in judicial questioning leading the prosecutor to amend the indictment to include rape charges. The judgement provided gender–specific jurisprudence by identifying and affirming that rape and sexual violence can constitute infliction of “serious bodily and mental harm” on members of the group for the crime of genocide, and that sexual violence can form an integral part of the process of destruction of a group. The ICTR defined sexual violence and rape as, “any act of a sexual nature which is committed on a person under circumstances which are coercive.”

The Tribunal found that "sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes, and prohibition of marriages" could be construed as measures intended to prevent births within a group. It found:

[i]n patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group.

The judgement positively impacted the Rome statute and ICC’s Elements of Crime. The drafters of the Rome Statute included an article stating: “States Parties shall also take into account the need to include judges with legal expertise on specific issues, including . . . violence against women or children.” The Akayesu case also had a positive impact on the list of sexual violence crimes included in the Rome Statute. The conclusions of the Judgement prompted the delegates negotiating the ICC’s Elements of Crimes document in 1999-2000 to include a specific reference linking sexual violence and torture to the crime of genocide. They added a footnote to the elements of “[g]enocide by causing serious bodily or mental harm,” stating that “[t]his conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment.”

However, the legal avenues opened by the Akayesu were not seized by the prosecutors across the world; the ICTR and The International Criminal Tribunal for the former Yugoslavia (ICTY) prosecutors charged rape occurring during genocide as crimes against humanity and/or war crimes, rather than genocide, for a long time. 22 years later, the understanding, analysis and reporting of genocide revolves around an apprehension of genocide as a crime of mass killings.

Feminist jurists and practitioners continue to work around advocating for a gendered analysis of international crimes. Three female lawyers and investigators led the development of vidence of crimes committed in Foca at the ICTY reflecting the organized way of rape used a part of ethnic cleansing. Subsequently, the Kunarac Judgment found sexual enslavement and rape as crimes against humanity. A gender strategy for investigations and prosecutions was developed at the International Criminal Court, under the auspices of the first female chief prosecutor, Fatou Bensouda.

The recognition of the seriousness of rape as a crime in international law has grown dramatically in the last ten years, largely through the prosecution and subsequent jurisprudence of the ICTR and the ICTY. With the prosecution of rape as crimes against humanity, genocide, and war crimes, many have noted that it should be prosecuted on an international level as a crime, in and of itself, as part of jus cogens within international law. The international community must look deep into the jurisprudence of the crimes against sexual violence as the Tribunals have great potential to serve as a deterrent and prosecutor of some of the world's worst crimes, including rape.

The crime of genocide continues in various contexts. In June 2016, the UN Commission of Inquiry on Syria concluded that ISIS was committing the crime of genocide against the Yazidis. The UN Fact-Finding Mission on Myanmar in August 2018 held that there was sufficient information to support an inference of genocidal intent regarding the actions of Myanmar’s security forces against the Rohingya Muslims. In March 2021, an independent think tank published a report on China’s on-going treatment of the Uyghurs, an ethnic minority. The report gives first hand testimony of rape victims and their treatment within the internment camp. Moreover, the report also sheds light on how women are subjected to sexual violence through coercive birth prevention procedures, including forced sterilization, IUD placements, abortions, and unknown injections or medication stopping menstrual cycles.

The application of the Akayesu Judgment has never been more necessary than today with gendered crimes of genocide excluded from prosecutions, living survivors of genocide are denied justice and erases the experiences of women and girls from history.