Testimonies of sexual violence historically occupy liminal spaces in conflict archives. Before the trials held at the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), that were established in the early 1990s, attention to sexual violence in armed conflict (SVAC) was largely absent or fleeting in academic literature drawing from legal archives.Footnote 1 Given the scarcity of formal evidence of SVAC in official records, scholars routinely note that what is revealed is likely just the “tip of the iceberg” of actual levels of sexual atrocity.
Trial transcripts and judgments are among the sources related to sexual violence that are preserved in the United Nations Mechanism for International Criminal Tribunals (MICT) archives.Footnote 2 These documents provide a record of key international trials that have transformed the way that SVAC testimony is elicited and understood. For lawyers, the jurisprudence of international criminal tribunals (ICTs) constructed a critical normative architecture for accountability for wartime sexual violence. It also amplified and legitimized the political and scholarly attention that had begun to be paid to SVAC. The trials were a powerful force driving the return of researchers to historical conflict archives in search of neglected evidence of sexual violence. However, because sexual atrocities were excluded from the early international criminal indictments, SVAC did not always occupy a central place in ICT trial archives.
Although the widespread sexual violence experienced during the Rwandan genocide helped garner the political will for the Security Council to establish ICTR in 1994,Footnote 3 it was the crimes of genocide and crimes against humanity that dominated the international prosecutor’s agenda. Charges related to sexual crimes did not appear in any of the Tribunal’s indictments until 1997, including in the initial indictment in the trial of Prosecutor v. Jean-Paul Akayesu.Footnote 4 The omission of sexual crimes from ICTR indictments ended mid-way through the Akayesu trial, when the indictment was amended.Footnote 5 The convictions that followed are history and have invited extensive scholarly commentary.Footnote 6 The Akayesu judgment marked the first conviction for the crime of genocide since the entry into force of the 1948 Genocide Convention. It was also a watershed moment in the legal understanding of SVAC, as the Trial Chamber held that rape constituted an act of genocide, as well as a crime against humanity.Footnote 7 The case is seminal in the body of international criminal law jurisprudence that developed international definitions for rape and sexual violence within the context of some of the worst conflicts that transpired at the close of the 20th century. It was also foundational because it has shaped the grammar of how sexual violence is understood in the context of conflict.
The Prosecutor in the Akayesu trial had already closed his case when he requested leave to amend the indictment to include sexual crimes. He argued to the Trial Chamber that “In this case it is clear throughout the testimony that there had been hints that there were acts of sexual violence occurring in the Taba commune.”Footnote 8 The Prosecutor explained that the testimony of his final witness, who was given the protective pseudonym “H” and was both a victim of and witness to rape, led to a further investigation into sexual crimes in Taba. As a result, additional witnesses were identified who “would testify to the exact same factual situation,” time period, and environs.Footnote 9 The request to amend the indictment to include sexual violence charges was granted, and eliciting testimonial evidence of acts of sexual violence then became central to the prosecution strategy. The subsequent testimony of SVAC regarding events in the Taba commune transformed the trial record. It went from providing “hints” of sexual violence to providing testimonial evidence that would support the Trial Chamber’s finding that many Tutsi women “were subjected to the worst public humiliation, mutilated, and raped several times, often in public, in the Bureau Communal premises or in other public places, and often by more than one assailant. These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities.”Footnote 10 In this phase of the trial, victims’ voices transcended the imposed silences around sexual violence of the initial indictment and trial process.
Silences surrounding SVAC in international criminal proceedings resonate with the literature on silences of sexual violence in historical archives.Footnote 11 The real-time and advocacy orientation of much of the early legal and feminist literature on the prosecution of sexual crimes before international criminalcourts and tribunals (ICTs) might account for why it is sometimes overlooked as a rich resource for understanding the complex dynamics that influence the ways that SVAC testimony enters legal archives. The multiple lenses adopted in this article to read the Akayesu trial archive are informed by the scholarship on SVAC testimony and international criminal justice. The literature is unique given the rare access that scholars and activists had to prosecution and court officials, with several having served as expert witnesses in these ongoing trials or as consultants at the ICTs. At the height of the ICTR and ICTY trials, there was significant impact research by scholars, activists, and practitioners that focused on the limitations of the practices of ICTs within the prosecutor’s office and Trial Chambers, as well as on the emerging international jurisprudence around sexual violence. This work addressed the factors that prevented the prosecution of sexual crimes and impeded women’s testimony from being adequately heard, whether in the investigation process or Trial Chamber.Footnote 12 The objectives of this scholarship were interventionist, conveying technical expertise related to trying crimes of sexual violence and providing recommendations for key actors within the international criminal tribunals.Footnote 13 Other work considered the psychological, linguistic, and cultural factors affecting how women’s experience of sexual violence is elicited in Trial Chambers, as well as the role of judges and lawyers.Footnote 14 Scholars have also studied the ways in which international criminal law’s approach to sexual violence distorts understandings of sexual violence in relation to gender, sex, sexuality and ethnicity, hierarchies, and wider narratives.Footnote 15
As illustrated by the articles in this Special Issue, scholars must often look to the margins of archives to uncover SVAC testimony. In the conflict-related archives of the past, sexual violence is rarely central to the mandate of a commission, tribunal, or inquiry, and it is rarely charged in related trials. This is partially explained by the pressing political priorities in transitional periods after conflict, and by the legal and cultural understanding of SVAC in different societies and eras. It is within this context that scholars interpret the delicate testimony surrounding SVAC and its silences. They are left to decode features in the archive, which might suggest a much wider phenomenon of SVAC, much like how the Prosecutor in the Akayesu trial worked with “hints” emerging from sexual violence testimony that arose unexpectedly. The Akayesu trial archive offers a case study of a range of indicators related to SVAC testimony on the record that signaled a link to the commission of widespread and systematic sexual violence in the Taba commune during the genocide. It offers a powerful testament to how the understanding of SVAC is transformed when it becomes dominant in the legal and political agendas of a given inquiry.
This article is a case study of the “hints” in the Akayesu trial testimony and how they raise a range of wider considerations for scholars uncovering and interpreting SVAC in legal archives. It focuses primarily on the testimony on the record, rather than comprehensively engaging with the substantive law or with the criminal responsibility of Akayesu. Part One will provide a brief background to the Akayesu case and the ICTR trial records that are situated within the larger MICT archives. As much of the SVAC victim and witness testimony was delivered in Kinyarwanda, Part Two will consider the euphemisms of sexual violence that appear in the witness testimony and what they suggest about the linguistic and cultural context within which sexual violence was experienced during the Rwandan genocide. Part Three will explore the “hints” embedded in the first part of the trial record when acts of sexual violence were peripheral to the charges against Akayesu. It will identify the indicators within the testimony that suggested that there might be more evidence to establish a wider pattern of pervasive and systematic sexual violence that took place in the Taba commune. Part Four will then provide an overview of the sexual violence testimony that emerged when the prosecution of sexual crimes became the focus of the trial. The article concludes with suggested considerations for scholars researching SVAC testimonial evidence in conflict archives that can be drawn from the ‘hints’ of SVAC in the Akayesu trial.
The Akayesu Trial Archive in Context
While there is no clear consensus on the number of victims of the 100-day 1994 Rwandan genocide, some estimates range from roughly 800,000 to over a 1,000,000 murders and 350,000 rapes, with estimates of 200,000 to 800,000 surviving perpetrators of rape and sexual offences.Footnote 16 Given the scale of the atrocity and the expectation to try the crime of genocide, the Prosecutor prioritized the prosecution of “the crime of all crimes” in the early years of the Tribunal. Demands for justice for victims of sexual violence, however, were always a powerful justification for the creation of these courts.
A legal archive of the Tribunals was to be central to the legacy of the unfolding complex prosecutions.Footnote 17 With the winding down of both ICTY and ICTR, in 2010, the Security Council created the MICT archives, whose functions include the “preservation, including management and access, of records of both Tribunals.”Footnote 18 At the core of the MICT archives are the trial and appeal judgments that are regarded as the “unique truth finders” in the hierarchy of official sources documenting international crimes.Footnote 19 With its rigorous scrutiny of the credibility and reliability of witness testimony, the judicial process short-circuits some of the core challenges of archival research. The contemporary attention paid to international criminal justice has already generated abundant academic scholarship and global policy discourse. As time moves forward, the MICT archives will likely assume an outsized significance for the understanding of the dynamics of atrocity and sexual violence in conflicts.
The MICT archives constitute the most comprehensive documentation of eyewitness testimonies of violations of international humanitarian law since World War II.Footnote 20 The ICTR archive contains over four kilometers of documentary evidence, with over 26,000 pages of witness testimony.Footnote 21 Indictments, motions, orders, decisions, and chamber and appeals judgments constitute the core of the archive. The judicial records of cases before the Tribunal encompass documents from the Chambers, Prosecutor, Defence, Registry, the accused, and third parties, such as states and civil society actors in the capacity of amici curiae. They also contain exhibits that have been admitted into the trial record, including expert reports and transcripts of the proceedings, which in addition to testimony would also include portions of witness statements that have been read into the record. Redacted transcripts and pseudonyms are a recurring feature within these records on account of witness protection. Where available, audiovisual recordings of the proceedings are also archived, which allows most survivors of the genocide who are unable to read the French and English transcripts to view the trials.Footnote 22
The visibility of sexual violence testimony is dependent upon its inclusion in the Trial Judgment, which in turn relies heavily upon the nature of the charges in the indictment. In the Akayesu trial, the Chamber heard forty-two witnesses called by the parties, seven of whom testified about sexual violence in the Taba commune in Rwanda during the genocide. The Trial Chamber noted that the proceedings generated more than 4,000 pages of transcripts and 125 documents entered in evidence.Footnote 23
The MICT archives are devoted to ICTR and ICTY, which were the pilot institutions of international criminal justice. The number of sexual violence charges and convictions by ICTs are heralded as a metric for the achievement and legitimacy of these novel institutions.Footnote 24 This can be credited in large part to the sophisticated efforts of women’s civil society organizations to bring global attention to SVAC in the Former Yugoslavia and Rwanda, and to highlight the failure to deliver adequate justice to sexual violence victims, particularly in the early years of the Tribunals.Footnote 25 Against this context, the emergence of testimony related to sexual violence that occurred during the 1994 Rwandan genocide offers a striking paradox. On the one hand, the very high level of international awareness regarding the staggering scale of sexual violence during the genocide was accompanied by extensive lobbying to establish the ICTs in order to prosecute sexual and other crimes. On the other hand, although the Tribunal presents sexual violence convictions as important milestones for its legacy, the prosecution record at the Tribunal regarding rape and other forms of sexual assault is modest.Footnote 26 Global calls for justice for acts of sexual violence generated the political will for the Security Council to create the ICTs, yet the Prosecutor was afflicted by limited resources and insufficient expertise in methods of SVAC investigations. Hence, the global outcry over sexual atrocities failed to translate into effective investigations and prosecutorial strategies in ICTR’s early years.Footnote 27 Against this backdrop, SVAC testimony is likely to be under-represented within trial records, notwithstanding the prominent designation of sexual violence documentation by the MICT archives.
While international criminal trials are widely considered as “unique truth finders,” it is widely acknowledged that trials can produce distorted historical records.Footnote 28 Although lawyers are inclined to think of legal archives as a collection of forensic documents surrounding legal proceedings, SVAC researchers should consider the MICT archives as being akin to those archives established in the 19th century as part of broader projects of nation building.Footnote 29 While truth finding and justice for sexual violence victims are indeed among the myriad of objectives of the international trials whose records are preserved within the MICT archives, the Tribunals and MICT were also set up to advance the project of international criminal justice. The horror of reports of sexual violence during the genocide galvanized political support for this project through the increasing influence of small but well-organized and vocal feminist and civil society organizations, but the main aims of international justice, as proclaimed in the preamble of the Rome Statute, focus on “the most serious crimes of concern to the international community.”Footnote 30
Given the wide external awareness of sexual violence during the genocide, the Coalition on Women’s Human Rights in Conflict Situations submitted an amicus brief (WCAB) to the Trial Chamber for the indictment to be amended, in which they relied on the limited testimony provided by two witnesses, J and H, and “other documentation,” indicating “the availability of other probative evidence” that had not been yet investigated by the Prosecutor, but which would ascertain that the sexual violence on the record “was part of a campaign of violence constituting genocide, crimes against humanity and war crimes.”Footnote 31 In essence, the Women’s Coalition was asserting that the sexual violence testimony on the trial record was the “tip of the iceberg” in terms of sexual atrocities in the Taba commune, where Akayesu served as mayor. The WCAB was not admitted by the Trial Chamber, but it is widely acknowledged to have played a role in pressuring the Prosecutor to further investigate and charge Akayesu with crimes of sexual violence.Footnote 32
As the nature of the project of a conflict archive varies, it may affect the liminality of the spaces occupied by SVAC testimony. Although the Rwandan government failed in its efforts to have the ICTR Mechanism archives transferred into their custody,Footnote 33 the Genocide Archive of Rwanda is housed in the Kigali Genocide Memorial. While not a legal archive, its electronically accessible materials contain a few ICTR judgments, as well as a limited body of testimonial and documentary sources related to sexual violence during the genocide. The MICT archives are different in content and scope, given their legal and institutional focus. There is a notable contrast in the approaches to sexual violence during the genocide displayed by the international tribunal and local archives. The ICTR Mechanism online archive prominently displays its record regarding sexual violence within the legal archive, highlighting the importance of the Akayesu judgment.Footnote 34 In contrast, the Rwandan Genocide Archive’s online documents leave sexual violence testimony to be uncovered through searches in the limited judgments and reports they have made available. Likewise, in the Kigali Genocide Memorial website, which hosts the Genocide Archive, sexual violence and rape are not included among the seven thematic search categories. Evidence of pervasive sexual violence of the genocide is allocated to a more discrete space, leaving it to the researcher to search and uncover the documentation among the limited ICTR judgments, other documents, and media available.Footnote 35
How SVAC is situated in a trial archive is affected by the way in which atrocities are codified and charged. In International Criminal Law, the codification of crimes against humanity and genocide by the Security Council in the Statutes of the Tribunals fostered the view that the creation of an international court was to provide a mechanism for prosecuting exceptional crimes. Under the ICTR Statute, rape as a Violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II is specifically mentioned under Article 4(e), and designated as a crime against humanity under Article 3(g). The ICTR Statute, however, did not include rape among the designated acts of genocide under Article 2.Footnote 36 Given the significant barriers to effectively investigating SVAC in post-genocide Rwanda, the legal framework and contextual realities of international justice made charging crimes of sexual violence difficult. Even when sexual violence charges were inserted in indictments in the years following the Akayesu judgment, they were criticized by advocates as formulaic, given that the language of the relevant charges was often virtually identical across indictments and trials.Footnote 37 Furthermore, with insufficient resources to conduct adequate investigations, cases frequently went to trial without enough evidence to secure a conviction.
How SVAC testimony is elicited and entered into the record is affected by rules of procedure and evidence. For ICTs, these evolved over time, but during the period of the Akayesu trial, there was an adversarial model for the presentation of evidence. The extent to which the judgment will capture the experience of victims and witnesses depends on a variety of factors, including the scope of examinations by lawyers and the role exercised by the judge. As is evident in the Akayesu case, prior to the amendment of the indictment to include sexual crimes, when hearing witness testimony, judges intervened to ask the witnesses probing follow-up questions. While a trial record is often limited by the strategy and competence of counsel in the Trial Chamber, an interventionist judge can play a corrective role in extracting testimony that is omitted from the record or preventing inappropriate questioning by counsel.Footnote 38 Rule 69 of ICTR Rules of Procedure and Evidence (RPE) provides a discretionary role for the judge to intervene in witness examination, in particular to protect vulnerable witnesses.Footnote 39 Advocates have argued that this role has not been sufficiently exercised in the course of witness examinations for victims of sexual violence.Footnote 40 The narration of women’s stories will inevitably be distorted by the legal process, and the evidentiary rules offer a tool for researchers to understand the scope of the testimonial evidence entered into the record. Although ICTR adopted an adversarial trial process, the rules for hearsay were more liberal than one would find in most common law jurisdictions. This meant that witnesses could testify about things that they heard from others regarding acts of SVAC in the Taba commune. Once entered into the record, the judges would then determine the evidentiary weight that would be given to specific hearsay testimony in their deliberations.Footnote 41
The timing of trials within the wider institutional lifecycle of ICTR can also impact the scope of SVAC testimonial evidence on the record within ICTR trial archives, especially when acts of sexual violence are not in the indictment. In his review of the Akayesu trial within the MICT archives, Redwood observes that, as it was one of the early trials at ICTR, there was “a greater latitude afforded to witnesses and victims to “tell their story” to the Chamber: a dynamic that he notes was accompanied by the “appearance by the Office of the Prosecutor to pursue its extra-judicial goals with greater rigour as it tried to construct an account of the violence that captured the full extent and horror of the genocide.”Footnote 42
The focus of witness examinations in trial records is shaped by the content and evidentiary standards for crimes. The narrow scope of this article does not allow for a discussion of complex substantive criteria of international crimes and their relationship to testimony. Nonetheless, a snapshot view of the crime of genocide offers a basic example of how the admission and assessment of testimonial evidence is tailored to the definition of the offense. To convict an accused of genocide, the court must establish that the accused acted with the intent “to destroy, in whole or in part, a national, ethnic, racial, or religious group.”Footnote 43 It follows that the testimony of sexual violence in the Akayesu judgment was of Tutsi victims in the Taba commune. A focus on rape as a crime of genocide in ICTR trials will thus exclude the documentation of crimes of sexual violence against Hutus, notwithstanding credible documentation of such atrocities.Footnote 44 Hence, research on SVAC that engages with ICTR judgments alone will have a selective understanding of sexual violence during the Rwandan genocide that is circumscribed by ethnicity. Buss observes how this intersection of gender and ethnicity in the work of the Tribunals raises the question of whether “ethnicity may be emerging as a meta-narrative within which sexual violence against women materializes in constrained and limited ways.” She concludes that the “Tribunal decisions consider rape and gendered harm only within the tightly scripted dominant narratives of the conflict; rapes as extensions of nationalism; rape as one modality of ethnic harm.”Footnote 45 In spite of the documentation of the commission of atrocities by Tutsis, no Tutsi was ever indicted by ICTR. This selective justice can in part be explained by the channeling of the dominant narrative of the conflict through the crime of ethnic genocide against the Tutsis, and the political constraints on the Prosecutor emanating from the Tutsi-led post-genocide Rwandan regime.Footnote 46 It serves as a cautionary reminder that in spite of the significance of ICT jurisprudence, unless read in conjunction with wider sources, international criminal law archives have the capacity to distort our comprehensive understanding of the experience of sexual violence in periods of armed conflict.
“Hints” of Sexual Violence: Language and the Akayesu Trial Record
Given that ICTR was an international tribunal where the predominant language of witness testimony related to sexual violence was Kinyarwanda, which neither judge nor counsel spoke, the record itself presents considerable barriers to understanding testimony. In acknowledging the difficulties of communication and interpretation, the Trial Chamber noted “the cultural sensitivities involved in public discussion of intimate matters,” and recalled “the painful reluctance and inability of witnesses to disclose graphic anatomical details of sexual violence they endured.”Footnote 47 As Koomen’s work illustrates, the complexities around sexual violence testimony are affected by how women’s stories are mediated and translated in the International Trial Chamber.Footnote 48 Notwithstanding the use of the term rape in the courtroom, euphemisms commonly characterize victims’ testimony of sexual violence. The Trial Chamber identified four terms that are used “interchangeably” by witnesses to denote rape, explaining the respective interpretations:
The word gusambanya means “to bring (a person) to commit adultery or fornication.” The word kurungora means “to have sexual intercourse with a woman.” This term is used regardless of whether the woman is married or not, and regardless of whether she gives consent or not. The word kuryamana means “to share a bed” or “to have sexual intercourse,” depending on the context. It seems similar to the colloquial usage in English and in French of the term “to sleep with.” The term gufata kungufu means “to take (anything) by force” and also “to rape.”Footnote 49
These euphemisms are woven into the findings of fact by the Trial Chamber. For instance, Witness OO testified about the selection of women and girls by the Interahamwe, who were the Hutu militia that the Trial Chamber held were among the main perpetrators of the genocide. She recounts how when she and “two other girls were apprehended by Interahamwe in flight from the bureau communal, the Interahamwe went to the Accused and told him that they were taking the girls away to sleep with them.”Footnote 50 The trial transcript illustrates even more legally problematic dimensions of elliptical testimony when Witness OO is asked by the bench the exact words of the Interahamwe when they told Akayesu “we are taking these girls away and we are going to sleep with them.” She replies, “That they were going to make love to us. They were taking us to make love to us.”Footnote 51 At times, Fletcher further observes the interpretation of sexual violence testimony must “fill in the blanks” in the trial record. She provides the example of the testimony of Witness JJ (transcribed in the French translation), where the witness stated: “Il a terminé la première fois et il a terminé une deuxième fois.” (“He finished the first time and he finished a second time.”)Footnote 52
Implied meanings within the wider context of armed conflict must also be deciphered, as with the skeletal direction uttered by the Accused to the Interahamwe to “take them” in relationship to women and girls.Footnote 53 The Trial Judgment reproduces testimony that described Akayesu’s direction to the Interahamwe to undress a woman identified as Chantal “and march her around.” The judgment notes that “He was laughing and happy to be watching and afterwards told the Interahamwe to take her away and said ‘you should first of all make sure that you sleep with this girl’.” The Chamber considers this statement as evidence that the Accused ordered and instigated sexual violence, although insufficient evidence was presented to establish beyond a reasonable doubt that Chantal was in fact raped.Footnote 54
The Akayesu trial archive highlights the extent to which the process of interpretation of sexual violence testimony, both in liminal and central spaces of an archive, sits at the intersection of language, conflict, and culture. The interpretation of euphemisms of sexual violence requires a linguistic sophistication that engages the societal context within which acts of sexual violence were perpetrated. The work of Fletcher highlights how the linguistic barriers suggest a deeper conceptual gulf about the nature of sexual violations. Fletcher argues that the confusion of the Rwandan and Burundian word for “rape,” “ Kurongora,” with the word “marriage,” “insinuates that this crime was considered as normal, like a ‘form of marriage’,” hence associating acts of sexual violence as part of the “spoils of war.”Footnote 55 When looking at the trial archives though a sociological prism, the narrow experience of sexual violence in the Taba commune during the genocide both informs and connects with a wider feminist discourse on SVAC.
“Hints” of Sexual Violence—Indicators of SVAC in the Margins of the Akayesu Trial Record
Having discussed some considerations that need to be taken into account regarding both the MICT archives, and the Kinyarwanda language surrounding sexual violence that impacts how sexual violence testimony emerges in the Akayesu trial record, Part Three will consider the features from the first part of the trial record that suggested that the testimony from Witnesses J and H was the “tip of the iceberg” of SVAC in the Taba commune during the Rwandan genocide. It will focus on the period of the trial prior to the amendment of the indictment to include acts of sexual violence, which will be referred to as “stage one.”
Context and standard of pretrial investigations
References flagging the security situation on the ground in post-genocide Rwanda and deficiencies in the pretrial investigation of sexual violence offer an important context within which to assess the nature of the SVAC testimonial evidence in the stage one trial record. Defense counsel noted that neither of the pretrial statements of witnesses J and H taken by investigators for the prosecution made any mention of sexual violence.Footnote 56 Judge Aspegren addressed this omission to Witness H, related to her witnessing of other rapes. He asked, “the time when you were not touched but when you were present, when you witnessed other women and young girls being raped. Did you provide the names of these ten men (who were perpetrators to the investigators) ?” When Witness H replied she had not, Judge Aspegren then followed, “They didn’t ask you?” to which she replied, “They did not ask me that.”Footnote 57 The Prosecutor would later argue before the Trial Chamber that collecting testimony related to sexual violence was very difficult given the situation in Rwanda, which had been categorized as “Phase 4” under UN policy, requiring armed escorts for investigators in the field. The Prosecutor explained to the Trial Chamber that “attempting to conduct investigations when there are such sensitive issues as witness protection, attempting to conduct investigations with armed escorts is not practical. The investigators stick out like a sore thumb, and it draws attention to the witnesses.”Footnote 58 The use of pseudonyms for all of the SVAC trial witnesses, as for most of the witnesses in the Trial, indicates the risks of testifying before ICTR and the attendant need for witness protection. This would be a clear deterrent for potential witnesses to come forward.
Focus of witness examinations
The transcript of witness examinations can indicate whether the witness was given a meaningful opportunity to present SVAC testimony. The questions posed to the witness are as important as the answers. In stage one of the trial, the rape testimony of Witness H offers an example of how the Prosecutor did not seek to elicit or engage with testimony related to sexual violence. After Witness H speaks of one of the men who attacked their house, she adds “and he told me he had come to me and he took me into a sorghum field and he raped me. After some time, I saw my father approach to fetch me, and he said also that he had found other members of my family who were still alive. He told me also that he had heard it said that there were people who had taken refuge in the bureau communal and who had not been killed. So, we went to the bureau communal.” The Prosecutor intervenes with a question: “Stop here for a second. Who all went to the bureau communal?” When Witness H answers, the next question enquires as to whether they went on foot or by vehicle.Footnote 59 The defense counsel did not cross-examine the witnesses on any aspect of her sexual violence testimony.Footnote 60 Stage one of the Akayesu trial highlights the implications for strategic questioning of witnesses when acts of sexual violence are not being prosecuted.
Judicial corrective interventions
An interventionist role assumed by the Judges in relation to SVAC testimony suggests that it was of sufficient interest for the bench to exercise its discretionary powers under RPE Rule 69 to question witnesses. When Witness H referred to rapes being committed at the bureau communal, Van Schaack points out that three members of the bench engaged with follow-up questioning in response to the “virtual silence” from counsel.Footnote 61 Although the Prosecutor did not ask Witness H any questions regarding her rape, Judges Aspegren and Pillay both probed the witnesses for more details, although their questioning remained primarily focused on discerning a link between the sexual violence and the accountability of Akayesu.Footnote 62
Stakeholder advocacy regarding sexual violence
There are a number of references in the record to the role of civil society actors calling for justice for crimes of sexual violence. Most significant in the archive is the WCAB, which is credited with a pivotal role in pressuring the Prosecutor to request leave to amend the indictment, a perspective not formally shared by the Prosecutor and Trial Chamber.Footnote 63 When Jean-Paul Akayesu was confronted on the stand at ICTR with testimony that he had witnessed acts of rape in his bureau communal during the Rwandan genocide, he blamed the accusations on the pressure by women’s groups, stating: “There have been some amicus curiae. There have been activities. Akayesu must be accused of rape. People, women are agitated in Rwanda. They are awakened. They are worked up to agree that they have been raped. So there is a change in the indictment.”Footnote 64
This advocacy permitted contestation of the understanding of the scale and nature of sexual violence in the Taba commune that had been presented in stage one of the trial. It also published qualitative evidence of the voices of SVAC victims and their experiences with investigations poorly tailored to address sexual violence. The documentation in reports such as Shattered Lives provided an enhanced scrutiny of the limitations of the process that preceded the calling of witnesses and entry of testimony onto the record.Footnote 65
External documentary evidence of widespread sexual violence
Paradoxically, although evidence of sexual violence may have occupied a liminal space within the trial archive during stage one of the trial, this was far from the case outside the courtroom. Although not in relationship to the Taba commune, evidence of widespread sexual violence during the genocide was entered into the trial record and used by the WCAB in their argument that there was “unquestionably sufficient evidence” to warrant an amended indictment.Footnote 66 This evidence included the Final Report of the Commission of Experts Established Pursuant to the Security Council Resolution 935 (1994) and three NGO human rights reports regarding the wider context of sexual violence during the genocide.Footnote 67
Public and recurring nature of sexual violence
The testimony of Witnesses H and J revealed a range of characteristics of the sexual violence during the genocide. They testified about public acts they had witnessed directly or heard about of sexual violence around the official bureau communal of Taba where Akayesu’s office as mayor was based, and in the cultural center in the same complex.Footnote 68 Stage one of the trial record documented that acts of sexual violence were not isolated events. Witness H, for example, testified that she personally knew of three women who were raped, and the names of ten men who were perpetrators.Footnote 69
Witness testimony of pervasive physical insecurity and impunity for acts in official and private spaces
An overwhelming and pervasive sense of physical insecurity is communicated in the testimony of Witnesses J and H. They both communicate an intense fear for survival in situations where there was nowhere to turn to for protection from violence. Official and private spaces where such protection might reasonably be expected are described as having been taken over by attackers and the Interahamwe. With her home attacked, Witness J hides and sleeps in a banana grove. Later, although six months pregnant, she recounts how she hid in a tree for a week “where I felt I was going to die of hunger…”Footnote 70 When asked why she sought refuge in the bureau communal, Witness H explains that “It’s because it is the only place where we could go.” When at the bureau communal, she tells the Trial Chamber that there “were many rapes and beatings taking place,” elaborating that “… the Interahamwe continued to surround us so that we could not run away. And in fact, some people almost died of hunger. Up until the time when they were--when they were killed, it was not even very difficult for them to kill them, because some of these people were almost dead already.”Footnote 71 Witness H also testifies that women and girls were taken to the mosque in front of the bureau communal to be raped.Footnote 72
Acts of sexual violence within a maelstrom of ethnically targeted violence
The sexual violence testimony on the record from stage one of the trial is integrated into the wider tableau of atrocity and murder in the Taba commune and the bureau communal. Relying upon testimony combined with the external reports of more generalized sexual violence, WCAB argues that within the Taba commune, “rape and other sexual violence occurred on a routine and notorious basis.”Footnote 73 The WCAB situates acts of sexual atrocity testified to by Witnesses J and H within the wider orchestrated violence in Taba. Unlike with sexual violence testimony, the Prosecutor presented an abundant amount of testimonial evidence with respect to other forms of violence in stage one of the trial. For example, the WCAB highlights for the Trial Chamber the link between testimony on the record that describes Akayesu’s order for the purchase and distribution of whistles for the hunt for Tutsis and the sexual assault of Witness H. In her testimony, Witness H described attackers blowing such whistles when she was chased into a sorghum field and was raped.Footnote 74 The testimony of Witnesses H and J also traces a pattern of sexual atrocities where rape was part of a sequence of atrocities leading to the death of the victim. In another instance, the rape of her six-year-old daughter, as described by Witness J, was collateral to a primary objective of attacking her father.Footnote 75
Sexual Violence Testimony at the Center of the Akayesu Trial Record
Many of the features of the testimony of Witnesses J and H highlighted in Part Three will be familiar to scholars trying to discern the wider context of buried and fragmented survivor testimony in SVAC legal archives. They acquired significance in Akayesu, as the Trial Chamber acknowledged that the slivers of sexual violence testimony given by J and H might be just a small part of a pattern of widespread sexual atrocity. Once the Akayesu indictment was amended in stage two of the trial, the picture of sexual violence expands, with more witnesses testifying, and sharpens, with more focused examinations. The amended indictment pushed SVAC from a marginal space in the trial record to the center of a trial for conflict justice. While refraining from a legal analysis of the Akayesu judgment, about which there is an extensive literature, Part Four considers the SVAC testimony elicited in stage two of the trial. This confirmed that the hints of SVAC on the trial record were just the “tip of the iceberg” and would ultimately lead to the historic conviction of Akayesu. As such, the distinctive features of the testimony of Witnesses J and H in Akayesu turned out to be indicators of systemic SVAC. When similar features appear around the traces of SVAC testimonial evidence in legal archives, the possibility that it signals a wider pattern of sexual violence warrants close consideration.
Sexual violence prioritized in investigations
For stage two of the trial, the Prosecutor’s investigations focused directly on acquiring evidence of sexual violence, producing four witnesses testifying about their own rapes, three of whom also testified that they had seen other women and girls raped in the commune of Taba.Footnote 76 The testimony expanded as the prosecutor strategically elicited and molded testimony to demonstrate to the judges that the sexual violence occurred as an act of genocide and crimes against humanity. Hence, the contextualization of the experience of sexual violence is linked to the exacting criteria of both genocide and crimes against humanity, with a focus on eliciting testimony speaking to the targeting of victims by reason of their ethnicity. The task of establishing Akayesu’s individual criminal responsibility provided a narrow prism through which testimony relating to SVAC that occurred outside the bureau communal and its environs was not weighed by the Trial Chamber in its judgment.Footnote 77
Sexual violence the focus of witness examinations
With the added testimonies of Witnesses JJ, OO, and NN, the Trial Chamber was better placed to assess evidence regarding generalized assertions of wide-scale sexual violence in and around the bureau communal in Taba. The Trial Judgment concluded that the “testimony of Prosecution witnesses regarding sexual violence, provided ‘sufficient credible evidence to establish beyond a reasonable doubt’ that during the events of 1994, Tutsi girls and women were subjected to sexual violence, beaten and killed on or near the bureau communal premises, as well as elsewhere in the commune of Taba.” The Trial Chamber was also equipped to speak to the scale of the sexual violence in Taba, finding that, “[H]undreds of Tutsi, mostly women and children, sought refuge at the bureau communal during this period and many rapes took place on or near the premises of the bureau communal.”Footnote 78
With sexual violence charges central to the prosecution strategy, the record reflects a shift from the failure to meaningfully engage with the sexual violence testimony of Witnesses J and H in stage one of the trial. The trial record reflects the extent to which witnesses were encouraged to “tell their story” to the Chamber, and communicate the agency of victims within the horror of the genocide. For instance, the powerful testimony of Witness PP recounted how she witnessed Alexia holding a bible that she handed to one of her rapists, telling him, “Take this Bible because it’s our memory, because you do not know what you’re doing.”Footnote 79
Sexual violence committed with impunity in official and private spaces
The testimony that emerged in stage two of the trial further attests to the transformation of the official space of the bureau communal from one of perceived safety to a place where rapes were committed and where victims were selected and then taken to be raped in forests, fields, and roadsides. The testimony reaffirms that the sexual attacks were not discrete acts. The Trial Chamber found that “Witness JJ was also raped repeatedly on two separate occasions in the cultural center on the premises of the bureau communal, once in a group of fifteen girls and women and once in a group of ten girls and women. Witness KK saw women and girls being selected and taken by the Interahamwe to the cultural center to be raped. Witness H saw women being raped outside the compound of the bureau communal, and Witness NN saw two Interahamwes take a woman and rape her between the bureau communal and the Cultural Center. Witness OO was taken from the bureau communal and raped in a nearby field.”Footnote 80
Sexual violence committed in public
Testimony regarding the public nature of the sexual atrocities was expanded, capturing a stronger sense of the theater and humiliation of sexual violence. For instance, witness testimonies describe the forced undressing of a woman after she was made to sit in the mud outside of the bureau communal.Footnote 81 The record includes descriptions of forcing a woman and her two nieces to perform naked exercises in public near the bureau communal.Footnote 82 Testimony recalls Akayesu ordering “the Interahamwe to undress a student and force her to do gymnastics naked in the public courtyard of the bureau communal, in front of a crowd.”Footnote 83
The public, performative nature of this violence is highlighted by the testimony of Witnesses KK and PP, who recalled the undressing and public humiliation of girls and women in and around the bureau communal that the Trial Chamber noted took place “in front of large numbers of people and that all of it was directed against Tutsi women.”Footnote 84
For the Trial Chamber, this testimony also spoke to the lived reality of coercion in conflict, finding that “coercive circumstances need not be evidenced by a show of physical force.”Footnote 85 As sexual violence became central to the examinations and judicial deliberations, the experiences of victims featured more prominently, with the humiliation of a victim interpreted as a component of the crimes charged. In dismissing the need to show physical force to establish that sexual violence was nonconsensual, the Tribunal recognized that “[T]hreats, 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 among refugee Tutsi women at the bureau communal.”Footnote 86
Sexual violence committed within a maelstrom of ethnically targeted violence
With the benefit of additional testimony focused on the events in the bureau communal, the Trial Chamber had the evidence to link the widespread sexual violence in Rwanda with the rapes and assaults committed in the Taba commune, and specifically in and around the bureau communal, in the nearby fields, on the road or outside of houses.Footnote 87 As forensic details of sexual violence was elicited from new witnesses, the range and detail of acts of violence became more tangible, informing how rape in conflict was understood by the Trial Chamber. Again, this was particularly the case in the recurring testimony of acts of extreme sexual violence preceding deaths, informed by testimony such as that of Witness KK who told how the Interahamwe thrust a piece of wood into the sexual organs of a woman as she lay dying.Footnote 88 With the expanded evidence of the Akayesu trial, measured against the criteria of the international crime of genocide, the Trial Chamber found that many of the Tutsi women “were subjected to the worst public humiliation, mutilated, and raped several times, often in public, in the Bureau Communal premises or in other public places, and often by more than one assailant. These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities.”Footnote 89
Because the charges in the indictment attached criminal responsibility to acts of sexual violence, the related trial examination shifted to include a more comprehensive focus on the intent of the perpetrators. As had been traced in stage one of the trial, rape and other forms of atrocity were part of a series of violations that often led to a victim’s death. The Trial Judgment recounts the added testimony of Witness PP, who saw three women being raped at Kinihira, the killing site near the bureau communal, and of Witness NN, who found her younger sister dying after she had been raped at the bureau communal.Footnote 90 The Trial Chamber concluded that “[O]n the basis of the substantial testimonies brought before it, the Chamber finds that in most cases, the rapes of Tutsi women in Taba were accompanied with the intent to kill those women.”Footnote 91
As Akayesu himself was never accused of directly committing sexual crimes, the record evolved to address his individual responsibility for international crimes. The methodology of the violence within a sequence of crimes was elicited to establish a link between Akayesu, the perpetrators, and the sexual acts charged. For instance, testimony was cited by the Trial Chamber regarding rapes committed “near mass graves where the women were taken to be killed,” with directions overheard to peasants and other men that the captured Tutsi women could be “taken away” and that they would be collected later to be executed.Footnote 92 Of central importance to the findings of the Trial Chamber was witness testimony that described how after rape by multiple perpetrators, Akayesu was quoted as saying “tomorrow they will be killed.” The Trial Chamber further noted that the promised killings did then transpire. The testimony related to the intent to murder Tutsi women following crimes of rape provided the necessary evidentiary link for the Trial Chamber that “the acts of rape and sexual violence, as other acts of serious bodily and mental harm committed against the Tutsi, reflected the determination to make Tutsi women suffer and to mutilate them even before killing them, the intent being to destroy the Tutsi group while inflicting acute suffering on its members in the process.”Footnote 93
While much testimony after the amended indictment expanded or affirmed the skeletal evidence of sexual violence provided by Witnesses J and H in the first part of the trial, the most significant transformation of the record resulted from the intensified focus on the ethnicity of victims. As discussed above, the strategic objective of examinations targeting genocide and crimes against humanity directed an approach to witnesses and survivor testimony that could establish the systematic nature of the sexual violence and its link to the ethnicity of the victims. When acts of sexual violence were charged under the framework of genocide and crimes against humanity, the Trial Chamber was compelled to consider the wider societal context within which the sexual atrocities occurred. Testimony depicting the propaganda that mobilized perpetrators to commit the sexual crimes became a framing device for sexual violence against Tutsi women. The examinations sought to elicit testimony that would illustrate what the Trial Chamber held to be the “sexualized representation of ethnicity.”Footnote 94 To hold that rape was an act of genocide, the Trial Chamber relied upon testimony that established that the rapes of “Tutsi women was systematic and was perpetrated against all Tutsi women and solely against them.”Footnote 95 For as the Trial Chamber held, “Sexual violence was a step in the process of destruction of the Tutsi group - destruction of the spirit, of the will to live, and of life itself.”Footnote 96
To secure a conviction, the legal imperative to establish a link between ethnicity and sexual crimes filtered the testimony on the record, providing details elaborating how ethnicity was sexualized. The Trial Judgment offers examples of a testimony that recalls how before being raped and killed a victim and her two nieces “were forced by the Interahamwe to undress and ordered to run and do exercises “in order to display the thighs of Tutsi women.” The Trial Chamber further describes how when the Interahamwe raped the victim Alexia, the perpetrator was quoted as saying, “as he threw her on the ground and got on top of her, ‘let us now see what the vagina of a Tutsi woman tastes like’.”Footnote 97 The link between the commission of the rapes, ethnicity, and Akayesu’s role was captured by one witness who testified overhearing the major address the Interahamwe, who were committing the rapes, telling them: “don’t ever ask again what a Tutsi woman tastes like.”Footnote 98
Conclusion
Notwithstanding the enormous diversity of legal conflict archives, this case study of the “hints” in the Akayesu trial archive suggests a range of considerations for scholars uncovering and interpreting SVAC in other legal archives. While some are common to all archival research, others are more specifically tailored to SVAC testimony.
Attention should be paid to the nature of the wider political and legal objectives of the archive, including how it may have evolved or transformed over the life cycle of the relevant commission, inquiry, or tribunal. With respect to specific proceedings within a larger archive, engaging with how the legal mandate and strategic priorities might impact the collection of SVAC testimonial evidence may be warranted, along with an appreciation of the security and other conditions affecting the field investigations of SVAC atrocities. Testimonial analysis will benefit from a contextualization of the euphemisms related to SVAC and how they intersect with wider societal attitudes towards SVAC and its victims. Scrutiny of fragmented SVAC testimony should assess its strategic importance within an indictment or mandate of a proceeding. This will facilitate, in turn, an analysis of the extent to which SVAC testimony is central or peripheral to the fact-finding process and how this might contextualize gaps in testimony on the record.
Transcripts should be reviewed to assess question framing and follow-ups related to SVAC testimony, noting any interventions by the judge or other stakeholders. When reviewing substantive evidence of sexual violence that may seem to recount individual incidents, it is crucial to be attentive to the following indicators of potentially more widespread sexual atrocities: recurring acts of SVAC; atrocities committed across official, public, and private spaces; the absence of areas of effective refuge; acts of public sexual violence, including those that have a coerced, performative dimension; occurrence of SVAC in the context of pervasive physical insecurity and fear for survival within a climate of impunity for the perpetrators of atrocities; commission of SVAC as part of a sequence of crimes leading up to, and including, the death of the victim; targeting of SVAC victims based on their ethnicity or identity; experience of SVAC within a maelstrom of ethnically or identity-based violence; and the existence of supplementary sources documenting SVAC that are external to the trial record.
The voices of the witnesses and victims of sexual violence in 1994 in the Taba commune produced a historic conviction for rape as a constituent act of genocide. The Trial Chamber’s finding that “sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole” led to a revolution in how SVAC is understood. While the hints of sexual violence embedded in the Akayesu trial record triggered this revolution, they also provide pragmatic direction for detecting the possibility that SVAC testimony, sequestered in liminal spaces of conflict archives, may be the tip of an iceberg of evidence revealing the existence of widespread sexual atrocity.
Acknowledgements
The author would like to express thanks to NYUAD Institute for hosting the seminar Conflict Archives and Sexual Violence from which this work emerges along with deepest appreciation to Erik Møse and Werner Sollors for their invaluable insights. The usual disclaimer applies.
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