For ages, millions of women in wartime and armed conflicts have endured the burden of being the targets of specific forms of gender-based violence, including rape, sex slavery, genital mutilation, and more.

Rape in particular is (or at least was) not an exception but rather a ‘trophy of war’, almost a rule for militiamen and soldiers towards female civilians, despite being a war crime in International Law since 1919. It is arguably the most common war crime, but the least talked about and prosecuted.

Even in the 1994 Genocide against the Tutsi, an estimated 250,000 to 500,000 women and girls were raped. While some of them died, 70 per cent of genocidal rape survivors were infected with HIV, some of them intentionally, and more than 20,000 children were born as a result.

Researchers argued that "almost all surviving Tutsi women were raped.”

Four years after the Genocide, 75 years after rape was declared a war crime, the first conviction of the crimes was made by the International Criminal Tribunal for Rwanda (ICTR) against Jean-Paul Akayesu, former mayor of Taba.

He was not only the first person to be prosecuted and convicted for rape counts, but he was also the first Genocide convict in the history of International Law.

The historical 1998 ICTR’s verdict was the first time an international tribunal defined rape as a crime under international law. It was also the first time an international court recognised rape as a means of committing genocide.

Surprisingly, Akayesu’s initial indictment did not include gender-based violence, despite witness statements that explicitly accused him of encouraging rape. However, following pressure from non-governmental organisations, the indictment was amended.

During his trial, a witness testified that Tutsi women seeking refuge at the Taba communal office- where Akayesu was mayor, were systematically raped and regularly subjected to multiple acts of sexual violence by armed local militia. "Each time you met assailants, they raped you,” she said.

Another witness testified that Akayesu told the Interahamwe militia who were raping female victims that "never ask me again what a Tutsi woman tastes like”.

But his trial would set precedence for all other Genocide prosecutions by the ICTR, significantly contributing to the development of international criminal and humanitarian law through landmark decisions where rape and other forms of sexual violence were defined and recognised as acts of genocide, crimes against humanity, and war crimes.

The Tribunal ended up charging more than half of the accused for rape and other crimes of sexual violence. 52 out of the total 93 accused indicted were charged.

Particularly, in Akayesu’s trial, the Trial Chamber defined the elements of rape as; a physical invasion of a sexual nature, committed on a person under circumstances that are coercive, and that sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact.

It concluded that coercive circumstances did not need to be evidenced by a show of physical force. "Threats, intimidation, extortion and other forms of duress which prey on fear or desperation could be coercion.”

It was recognised that during the 1994 Genocide against the Tutsi, thousands of women and girls were individually raped, gang-raped, raped with objects such as sharpened sticks or gun barrels, held in sexual slavery either collectively or through forced marriage, and sexually mutilated.

In its judgement, the Chamber held that sexual violence was an "integral” part of the process of destruction of the Tutsi ethnic group. "The rape of Tutsi women was systematic and was perpetrated against all Tutsi women and solely against them”, it concluded.

As a result, in 2014, the ICTR Office of the Prosecutor (OTP) released the ‘Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Situations of Armed Conflict’. It emphasised the need for a clear and comprehensive global strategy to ensure that sexual violence is fully and effectively investigated and prosecuted and that the welfare and security of victims and witnesses are safeguarded.

Modes of liability and relevant cases

From trying Rwanda’s notorious Genocide masterminds, the OTP determined that other forms of sexual violence which may serve as a basis for offence for genocide, crimes against humanity, and war crimes include, but are not limited to, non-penetrative sexual assault, sexual humiliation, and forced prostitution.

They are offences that do not necessarily meet the elements of rape, and their modes of liability under International Law can be through committing, ordering, instigating, planning, aiding and abetting, and through superior responsibility.

Committing

The OTP defined "Committing” as that which covers, primarily, the physical perpetration of a crime (with criminal intent) or a culpable omission. Physical perpetration can include, for example, the physical commission of the crime, as well as other acts that constitute direct participation in the actus reus of the crime.

In the case Prosecutor v. Muhimana, the Trial Chamber found Mikaeli Muhimana guilty of rape as genocide and rape as a crime against humanity based upon his commission of the rape of Tutsi women. The Appeals Chamber upheld the convictions.

In the case, Prosecutor v. Nyiramasuhuko et al., Arsène Shalom Ntahobali was found guilty of committing rape as a crime against humanity and a war crime, where the evidence established beyond a reasonable doubt that Ntahobali personally raped Tutsi women.

Ordering

The OTP in its Best Practices Manual explained that a person in a position of authority may incur responsibility for "ordering” another person to commit an offence if the order has a direct and substantial effect on the commission of the illegal act.

It added that responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, and if that crime is effectively committed subsequently by the person who received the order.

Relevant cases on the ‘Ordering’ mode of liability include the case Prosecutor v. Niyitegeka, where the Chamber convicted Eliézer Niyitegeka of other inhumane acts as a crime against humanity.

Niyitegeka ordered Interahamwe to undress the body of a woman who had just been shot dead, and to fetch and sharpen a piece of wood, which he then instructed them to insert into her genitalia. The Interahamwe carried out Niyitegeka’s instructions. The body of the woman, with the piece of wood protruding from it, was left on the roadside for three days.

In the case Prosecutor v. Nyiramasuhuko et al., the Trial Chamber convicted Arsène Shalom Ntahobali of rape as a crime against humanity, where the evidence established that he ordered Interahamwe to rape Tutsi women taking refuge at a préfecture office.

Also, in the case Prosecutor v. Akayesu, the Chamber found Jean-Paul Akayesu guilty of rape as a crime against humanity, where Akayesu ordered, instigated, and aided and abetted acts of sexual violence, including rapes and the forced undressing and public marching of a woman.

Instigating

The OTP also said that "Instigating” implies prompting another person to commit an offence. "It is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.”

In the case Prosecutor v. Semanza, the Trial Chamber found Laurent Semanza guilty of instigating rape and torture as crimes against humanity, where he encouraged a crowd to rape a woman because of her ethnicity.

In the case Prosecutor v. Gacumbitsi, the Trial Chamber found Sylvestre Gacumbitsi guilty of instigating genocide where he publicly instigated the rape of Tutsi women and girls, and that the rape of ‘Witness TAQ’ and seven other Tutsi women and girls by attackers who heeded the instigation was a direct consequence thereof.

Planning

The OTP also explained that "Planning” requires that one or more persons design the criminal conduct constituting a statutory crime that is later perpetrated. It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.

Aiding and abetting

The OTP described that "aiding and abetting” entails carrying out acts or omissions specifically directed to assist, encourage, or lend moral support to the perpetration of a certain specific crime, which has a substantial effect on the perpetration of the crime.

"The assistance need not serve as a condition precedent for the commission of the crime and may occur before, during, or after the principal crime has been perpetrated. The requisite mental element is the knowledge that the acts performed to assist the commission of the specific crime of the principal perpetrator.

"Specific intent crimes, such as genocide, also require that the aider and abettor must know of the principal perpetrator’s specific intent,” the manual reads.

In the case Prosecutor v. Muhimana, the Chamber found Mikaeli Muhimana guilty of rape as a crime against humanity, through his presence, encouragement, and actions. The Trial Chamber, therefore, found Muhimana aided and abetted the rape of Tutsi women. The Appeals Chamber upheld the convictions.

In the case, Prosecutor v. Nyiramasuhuko et al., the Trial Chamber convicted defendant Arsene Shalom Ntahobali of rape as a crime against humanity and as a war crime, where the evidence established that in addition to ordering, he aided and abetted Interahamwe to rape Tutsi women taking refuge at a préfecture office.

In the case Prosecutor v. Akayesu, the Trial Chamber found Jean-Paul Akayesu guilty of rape as a crime against humanity where he had reason to know that sexual violence was occurring, and aided and abetted acts of sexual violence by allowing them to take place on or near the premises of his commune office. And by facilitating the commission of sexual violence through his words of encouragement in other acts of sexual violence which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence.

Superior responsibility

"For an accused to incur criminal responsibility under Article 6 (3) of the ICTR Statute, in addition to establishing beyond reasonable doubt that his or her subordinate is criminally responsible for the underlying crime, the following elements must be established beyond a reasonable doubt: (1) the existence of a superior-subordinate relationship; (2) that the superior knew or had reason to know that his or her subordinate was about to commit a crime or had done so; and (3) that the superior failed to take necessary and reasonable measures to prevent or punish the commission of the crime by his or her subordinate,” the manual reads.

In the case, Prosecutor v. Bagosora et al., Théoneste Bagosora was held responsible as a superior for the rapes committed by soldiers and militiamen at roadblocks, Saint Josephite Centre, and Gikondo Parish, the sexual assault of the Prime Minister Agatha Uwilingiyimana, the rapes and stripping of female refugees and for rapes at a parish, and on these bases convicted him of rape and other inhumane acts as crimes against humanity, as well as outrages upon personal dignity.

In the case, Prosecutor v. Nyiramasuhuko et al., the Trial Chamber found that Pauline Nyiramasuhuko and Arsene Shalom Ntahobali bore superior responsibility for the rapes committed by their Interahamwe subordinates of Tutsi women taking refuge at a prefecture office.

In the case, Prosecutor v. Ndindiliyimana et al., the Chamber found Augustin Bizimungu responsible as a superior for rapes committed by his soldier-subordinates, and thus found him guilty of rape as a crime against humanity and as a war crime.

Men are also victims of sexual violence

The historical trials led to the 2008 UN Security Council Resolution 1820, which recognises sexual violence as a weapon and tactic of war; notes that rape and other forms of sexual violence can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide.

It also adds that although women and girls are predominantly affected by sexual violence, men and boys too are victims of such violence.

Sexual violence against men is also a silent vice in many communities all over the world, and this makes it almost impossible for victims to seek justice or any other help.