1. At least one witness was killed after having testified before the ICTR in Arusha, Tanzania. The victim was a Hutu woman who had testified against Jean-Paul Akayesu. She was killed on January 5, 1997, along with her husband, four of their own children and three other children who were in the house at the time of the attack. 1
2. In September 1996, the ICTR estimated that 10 individuals who had agreed to testify had been killed before they had the chance. 2
3. Numerous other genocide survivors scheduled to testify before the ICTR were killed in Rwanda before making it to Arusha. On December 23, 1996, Emmanuel Rudasingwa and 10 other persons were killed and one seriously injured in Kazirabondi cellule, Karangara secteur, Taba commune, Gitarama prefecture. 3 Rudasingwa, the principal victim, had given testimony to investigators of the ICTR and was scheduled to testify in Arusha in January 1997. 4
4. There is strong reason to believe his death was connected to his perceived contact with ICTR staff. Tribunal investigators had visited Rudasingwa at his store numerous times in marked United Nations vehicles, making him an easy target. 5 Godelieve Mukasarasi, the widow of Rudasingwa, said, "No one could miss them [ICTR investigators]. Everyone knew Emmanuel was talking because they saw such a huge car outside the door." 6 She also said that her husband had told ICTR investigators that he and his wife felt insecure and had asked the investigators for protection. The ICTR investigators told him to telephone them if he was attacked, even though the nearest telephone was 20 miles from their home. 7 Mukasarasi attributed the attack to Hutus, who had participated in the genocide, and had recently returned from exile in Tanzania and Zaire. 8
5. Others who have testified have suffered harassment and intimidation after returning to Rwanda. One woman, after having testified, was forced to flee her home in fear of her life. In an interview she said, "When I returned from [testifying in] Arusha, everyone knew I had testified. Everyone in my neighborhood had nicknamed me, 'Mrs. Arusha.' Shortly after returning from Arusha, I was chased from the house I had been renting in Kigali. The landlord asked me to leave because he knew I had testified in Arusha. At night, people would come and throw stones at my house. I was very scared." 9
6. 'Mrs. Arusha' sought the assistance of a survivors' association, who in turn helped her contact the Tribunal staff in Kigali. She was relocated but continues to live in fear: "I told the ICTR staff in Kigali about the problems I had upon return from Arusha. I also told them I was chased from the house I had been renting. They gave me $100 (30,000 Rwandan francs) and told me they would find me a job. I used the money to rent another place in a different part of Kigali where a soldier had told me it was safe. I was able to pay for three months' rent with the money they had given me. The job they had found me was a painting job. It would have involved a lot of climbing. The transportation costs to get to the place where I was supposed to work would have eaten up most of my pay. Because of these reasons I never took the job. I have no source of income." 10
7. "After three months had passed, I was unable to continue paying rent for the house I had moved into. I had to leave. Now I am staying in an unfinished house in another part of Kigali. The house is in very poor condition and sometimes water comes in the house ... I told the ICTR staff of the continued security concerns that I have but nothing was done ... Since I have come back from testifying in Arusha, life has been particularly hard. I was chased from the house I had been renting. Because I had to move, I was unable to continue to run the small shop I had. I used to be able to make a living but this is no longer possible. I cannot survive. I feel like the ICTR is just bringing us problems for nothing." 11
8. In June 1996 in the Taba commune, a woman received death threats warning her that she would be killed if she testified in Arusha before the ICTR. Earlier, this woman had given information to the ICTR investigators regarding Jean-Paul Akayesu, former Bourgmestre of Taba. In addition, her family members, also genocide survivors, were intimidated and were no longer willing to testify. 12
9. According to a lawyer working at a non-governmental organization (NGO) in Kenya, a Rwandese refugee requested assistance and help because of continued harassment and threats she was receiving due to her cooperation with the ICTR. She told the lawyer that she had been raped during the genocide and that she was being terrorized by threats to rape her and her daughter. She came to the NGO out of desperation as she had no where else to turn. This NGO did not have the resources to provide the assistance needed. 13
10. The fact that there have been consistent and increasing attacks on genocide survivors in general heightens the danger for those who cooperate with or dare to testify before the ICTR.
11. Both the United Nations High Commissioner for Human Rights Field Operation in Rwanda (HRFOR) 14 and African Rights 15 have extensively documented the killing and intimidation of genocide survivors and persons associated with them (such as family members). During January and February 1997, HRFOR reported that 62 genocide survivors and persons associated with them were killed. 16 From January to December 1996, they reported that 227 genocide survivors and persons associated with them were murdered, 56 individuals were injured, and seven went missing. 17 In the majority of these cases ex-FAR, Interahamwe or other insurgents opposed to the Government of Rwanda were responsible for the attacks. 18
12. Of particular concern is the circulation of a list of adult genocide survivors in the Taba commune. In August 1996, at least three genocide survivors received letters with death threats, attributed to the Interahamwe from the Taba commune. 19 One of those letters allegedly contained a list of all adult genocide survivors living in the secteur. 20
13. In numerous instances genocide survivors, some 2,000 in Gitarama and Kibuye prefectures, have relocated for heightened security, moving from isolated areas to more central locations, often near communal offices and/or RPA positions. 21
14. The continuing flow of returning refugees raises concerns of increasing insecurity within the country. In Ruhengeri prefecture, the degenerating human rights situation is of particular concern. Despite a United Nations Security Council-imposed embargo on arms trafficking in the region, there has been an increase in attacks by armed militia groups operating in the prefecture. 22 Resulting military operations carried out by the RPA have killed at least 2,022 persons during May and June in the Ruhengeri prefecture. 23 Included in the violent activities carried out by armed militia were attacks on two communal offices, resulting in the release of all detainees in these two communal detention centers. 24
15. The Rwandese women's community is exceptionally well-organized and is comprised of survivors of genocide, who are often widows and survivors of sexual violence. Moreover, women constitute the majority of those who survived the genocide and are often the only ones who can provide information and testimony. While these groups started out willing to cooperate with the Tribunal in a number of ways, relations between the ICTR and these organizations has been severely compromised by a combination of a lack of respectful outreach and investigation, accessibility, transparency and follow-up. In addition, the lack of measures to ensure continuity despite the high staff turnover has left Rwandese women unsure of whom to contact at the ICTR.
16. Despite a still prominent belief to the contrary within the ICTR, women do want to speak out about what has happened to them, including on sexual violence. A leader of one woman's association said, "Before [the war] women were raped but they lived in silence. During the war rape so widespread it became a problem shared by many women. Because of this it became easier for them to talk about sexual assault." 25 "Before [the genocide] it was taboo to talk about such things [rape and sexual violence] ... now after the war everyone knows what happened," she said. Another activist stated that those who were forced into sexual slavery do not consider their aggressors as people who saved their lives," 26 and "If they do not come forward to press charges it is because it is a question of dignity." 27
17. Investigation by the ICTR of rape and sexual violence has been both inconsistent and unprofessional. Although it is well known that women will generally speak most comfortably, if at all, of sexual violence only to women investigators, the ICTR often sent men to speak to them. For example, one woman who testified in the Akayesu trial about the violence against her family and the killing of her husband was never questioned about sexual violence in Kigali. The issue was first raised by the male prosecutor after her arrival in Arusha. She told him nothing, despite the fact both her and her daughter had been raped during the genocide. She did not feel comfortable talking about her rape experience because he was a man. 28 Human Rights Watch concluded in its report, Shattered Lives: Sexual Violence During the Rwandan Genocide and Its Aftermath, that "... even when Tribunal investigators do try to document rape, they are using interviewing techniques that are poorly designed to gain the confidence of the women, elicit rape testimonies and ensure protection from retaliation." 29
18. Another woman interviewed indicated a further problem with the approach of the ICTR, whether the result was intended or unintended. As a genocide survivor, she was too scared to return to Taba and had taken up residence in Kigali. Nonetheless, when the Bourgmestre of Taba sent for her, she felt that she had no choice but to return to Taba, despite her fears. 30 Apparently, the ICTR had contacted the Bourgmestre about speaking with potential witnesses. Although the Tribunal must work in cooperation with the local government, it is problematic to allow witnesses to be summoned through these officials, as it deprives them of the choice of whether to cooperate or not and potentially subjects them to danger.
19. The importance of contacting women through associations cannot be underscored enough. The UNHCR reported, "Rwandan women won't speak unless they trust the interlocutor, who in turn must state the objective of collecting testimonies." 31 This is also emphasized by Human Rights Watch: "In the Rwandan context, it is essential that women are approached through an interlocutor whom they trust, such as someone from the community or a women's organization with whom they are familiar ... Rwandan women have also indicated that they are more comfortable telling their testimonies to women investigators, and when necessary with women interpreters, in large part because of the stigma attached to rape." 32 The immediacy of this problem must by addressed by ICTR investigators in light of the current distrust and disappointment expressed by women survivors and women's associations with respect to their contact with the Tribunal.
20. Those who do come forward to testify in Arusha are not given adequate support. One woman who testified in Arusha stated, "The same men that raped me also raped my daughter. When you see someone on top of your child and then also on top of you, it is particularly horrible. It is so painful for me when I tell my story. I have a lot of psychological problems. There were no counselors that I could talk with while I was in Arusha." 33
21. In addition, where potentially fruitful contacts have been made by the ICTR, there has been no follow-up. For example, Trocaire, an Irish non-governmental organization, has established the only trauma program designed especially for Rwandese women. ICTR staff approached Trocaire in mid-1996 to see if one of their experienced counselors would be willing to testify as an expert witness in Arusha, to provide the Tribunal with a better understanding of the impact of violence against women in Rwanda. One counselor was scheduled to go to Arusha at the end of 1996 but because the ICTR never contacted the NGO again, no one from Trocaire went to testify. As of August, there had been no follow-up contact by the ICTR with Trocaire. 34
22. Information obtained from one of the women who testified in Arusha indicates that there is inadequate follow-up not only with respect to witness protection, but also to information regarding the process. She stated, "I went to Arusha to help convict Akayesu. Since I have returned things have only become worse for my family and me. I just keep hearing the trial of Akayesu has been postponed. I went to testify against him because of all the crimes he had committed against my family, but even now I have no news of what has happened with the case. I do not know whether he was convicted or not." 35
23. During a visit in August by the SAT to a local women's association meeting, women refused to collaborate with ICTR staff. Due to a shortage of interpreters, the SAT came to the meeting without an interpreter and had to rely on one of the women's association's coordinators to translate. SAT staff asked the women if any of them would be willing to name those who committed genocide and rape. One woman responded, expressing the general feeling of the group, saying they would not cooperate because there is no follow-up by the ICTR. According to women at the meeting, this was not the first time staff of the ICTR had come to speak with them. During one of ICTR's first visits, they left the address of the ICTR in Kigali, telling the women that if any of them wanted to speak with the ICTR they could come to their office. One woman said it would be impossible to go the ICTR office because it is in Remera and transportation costs, coupled with the difficulty of entering the ICTR compound, would hinder her from going. 36
24. The ICTR is largely inaccessible to the women's community, as well as uninviting. It is almost impossible to telephone the Tribunal and the trip is expensive and time-consuming. Security guards often speak only English and can be very disrespectful to visitors coming to the Tribunal. To gain entrance, a visitor must wait at the gate until a staff member from the ICTR comes to escort them into the building. There is one telephone at the gate that can be used to alert the ICTR staff of one's presence at the gate. Oftentimes, individuals are not in their office or a visitor might not know the proper extension of the ICTR staff member they are scheduled to meet with. One Rwandese woman seeking to visit a member of the staff was told that she must wait in the mud. The futility of trying to contact the ICTR by those who wish to provide information is recognized by ICTR staff themselves. One staff member said, "There have never been people who have just shown up at the Tribunal to speak with staff and provide them with information. 37
25. The majority of women's associations are extremely critical of the ICTR's work and most have little to no contact with the ICTR. "They have no contact with Rwandese people", stated a leader of one of the women's associations. 38 Another woman activist said, "We don't know what they're doing ... It is as though the ICTR is not working on behalf of Rwanda. The Tribunal is not interested in working with local groups. They don't want to work with anyone. They don't want to inform us of what they are doing." 39 According to her, many of the women in the association she works with believe that "the ICTR will just keep postponing trials until people forget." 40 Lack of transparency has left women feeling bitter and suspicious. Survivors want to be informed of the work of the ICTR.
26. Lack of follow-up with women's associations, a virtual blackout on the work of the ICTR, an inadequate support system for those who testify, and the investigators' approach in contacting potential witnesses have had a detrimental affect on the work carried out by the ICTR. Although these problems are recognized by OTP staff, little has been done to address these issues.
27. Establishing relationships with women survivors and women's associations is vital to the ICTR's ability to carry out thorough investigations into sexual violence; this cannot be done on an ad hoc basis. Developing these connections requires not only sensitivity to their needs but also consistent follow-through. In addition, the women's organizations are also a potential source of ideas and support for protecting witnesses at all stages. While the ICTR cannot devolve its responsibility onto the NGO community, it must work to develop these relationships in order to better carry out its mandate without risking the lives or well-being of those who cooperate.
1. Associated Press, Rwanda Tribunal Witness Killed, Montreal Gazette, Jan. 18, 1997, available in 1997 WL 4606288; Softline Info., Inc., Hutus Begin New Wave of Terror in Rwanda: Killing of Three Europeans Renews World Concern Over Plight of Rwanda, The Weekly Journal, Feb. 4, 1997, available in 1997 WL 11764321. Back
2. Andrew Purvis, Dead Witnesses Tell No Tales, Rwandan Genocide Survivors are the Latest Targets of Hutu Killer Gangs, Time International, Sept. 23,1996, available in 1996 WL 10668845. Back
3. United Nations High Commissioner for Human Rights Field Operation in Rwanda (U.N. HRFOR), Selected Case Summaries 1996, Section 76. Back
4. Lawyers Committee for Human Rights, Prosecuting Genocide in Rwanda: The ICTR and National Trials, 19, July 1997; Declaration of "A", at Section 6 (on file with MADRE, New York, United States). Back
5. United Nations High Commissioner for Human Rights Field Operation in Rwanda (U.N. HRFOR), Killings and Other Attacks Against Genocide Survivors and Persons Associated With Them From January Through December 1996, 5, HRFOR/STRPT/33/1/24 January 1997/E; Douglass W. Cassel, Jr., Witness Genocide in Rwanda, Chicago Daily Law Bulletin, April 8, 1997, available in 1997 WL; Chris McGreal, Witnesses Afraid to Speak, Survivors of Rwandan Genocide Due to Testify in Court Accuse Tribunal of Failing to Protect Them, The Guardian, Jan. 21, 1997, available in 1997 WL 2362196; Lawyers Committee for Human Rights, Prosecuting Genocide in Rwanda: The ICTR and National Trials, 19-20, July 1997. Back
6. Chris McGreal, Witnesses Afraid to Speak, Survivors of Rwandan Genocide Due to Testify in Court Accuse Tribunal of Failing to Protect Them, The Guardian, Jan. 21, 1997, available in 1997 WL 2362196. Back
7. Id.; Douglass W. Cassel, Jr., Witness Genocide in Rwanda, Chicago Daily Law Bulletin, April 8, 1997, available in 1997 WL. Back
8. Lawyers Committee for Human Rights, Prosecuting Genocide in Rwanda: The ICTR and National Trials, 19-20, July 1997. Back
9. Declaration of "A" at Section 11 (on file with MADRE, New York, United States). Back
11. Id. at Section 12, 14-15. Back
12. United Nations High Commissioner for Human Rights Field Operation in Rwanda (U.N. HRFOR), Killings and Other Attacks Against Genocide Survivors and Persons Associated With Them From January Through December 1996, 5, HRFOR/STRPT/33/1/24 January 1997/E. Back
13. Rhonda Copelon and Mary Marrow interview in New York, United States (August 1997). Back
14. See generally HRFOR, supra note 12. Back
15. See generally African Rights, Rwanda - Killing the Evidence: Murder, Attacks, Arrests and Intimidation of Survivors and Witnesses (1996). Back
16. Memorandum from the United Nations High Commission for Human Rights Field Operation in Rwanda (U.N. HRFOR), Killings of and Other Attacks Against Genocide Survivors and Persons Associated With Them, (April 1997). Back
17. HRFOR, supra note 12 at 1. Back
22. United Nations High Commissioner for Human Rights Field Operation in Rwanda (U.N. HRFOR), Deterioration of the Security and Human Rights Situation in Ruhengeri Prefecture, Including Killings of Civilians During Military Operations, May - June 1997,, Section 30, HRFOR/STRPT/53/1/7 August 1997/E. Back
24. Id. at Section 18-19. Back
25. Interview by author in Kigali, Rwanda (June 26, 1997). Back
28. Declaration of "A", supra note 9 at Section 8. Back
29. Human Rights Watch and Fédération Internationale des Ligues des Droits de l'Homme, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath, 95, September 1996. Back
30. Declaration of "A", supra note 9 at Section 3. Back
31. Marciela Daniel, Community Services Coordinator UNHCR, Report on Assignment to Rwanda, 3, 12 June to 24 July 1995. Back
32. Human Rights Watch and Federation Internationale des Ligues des Droits de l'Homme, supra note 29 at 95. Back
33. Declaration of "A", supra note 9 at Section 9. Back
34. Interviews by author in Kigali, Rwanda (June and July 1997). Back
35. Declaration of "A", supra note 3 at 17. Back
36. Interview by author in Kigali, Rwanda (August 8, 1997). Back
37. Interview by author with ICTR staff in Kigali, Rwanda (June 1997). Back
38. Interview by author in Kigali, Rwanda (June 19, 1997). Back
39. Interview by author in Kigali, Rwanda (July 15, 1997). Back
40. Interview by author in Kigali, Rwanda (June 25, 1997). Back
Reference :
EUROPEAN COURT OF HUMAN RIGHTS
(57/1996/676/866)
JUDGMENT
STRASBOURG
25 September 1997
EXCERPTS ON RAPE AS TORTURE:
...20. On arrival at the gendarmerie headquarters, the applicant alleges that she was separated from her father and her sister-in-law. At some stage, she was taken upstairs to a room which she later referred to as the "torture room". There she was stripped of her clothes, put into a car tyre and spun round and round. She was beaten and sprayed with cold water from high pressure jets. At a later stage, she was taken clothed but blindfolded to an interrogation room. With the door of the room locked, an individual in military clothing forcibly removed her clothes, laid her on her back and raped her. By the time he had finished she was in severe pain and covered in blood. She was ordered to get dressed and subsequently taken to another room. According to the applicant, she was later brought back to the room where she had been raped. She was beaten for about an hour by several persons who warned her not to report on what they had done to her.
...
a - The Applicant
74. The applicant contended that the rape and ill-treatment to which she had been subjected gave rise to separate violations of Article 3 of the Convention, both of which should be characterised as torture. Article 3 provides: "No one shall be subjected to torture or to inhuman or degrading > treatment or punishment."
75. She was seventeen years old at the time of her detention. She was kept blindfolded and isolated from her father and sister-in-law throughout the period of detention. During that time she was debased by being raped and has suffered long-term psychological damage as a result of that particular act of torture. Furthermore, she was stripped naked, questioned by strangers, beaten, slapped, threatened and abused. She was forced into a tyre, spun around and hosed with ice-cold water from high-pressure jets. Having regard to her sex, age and vulnerability she requested the Court to find that the deliberately inflicted and calculated physical suffering and sexual humiliation of which she was the victim was of such severity as to >amount to an additional act of torture.
76. Finally, she contended that the failure of the authorities to carry out an effective investigation into her complaint of torture was in itself a violation of Article 3 of the Convention.
...
b- The Government
77. The Government maintained that the allegations had not been proved (see paragraph 65 above).
c - The Commission
78. The Commission concluded that the deliberate ill-treatment inflicted on her by being beaten, being placed in a tyre and hosed with pressurised water, combined with the humiliation of being stripped naked, fell clearly within the scope of the prohibition of Article 3. The Commission also found that rape committed by an official or person in authority on a detainee must be regarded as treatment or punishment of an especially severe kind. Such an offence struck at the heart of the victim's physical and moral integrity and had to be characterised as a particularly cruel form of ill-treatment involving acute physical and psychological suffering.
79. The Commission found that the applicant had been the victim of torture at the hands of officials in violation of Article 3.
2. The Court's assessment
80. The Court recalls that it has accepted the facts as established by the Commission, namely that the applicant was detained by the security forces and while in custody was raped and subjected to various forms of ill-treatment (see paragraph 73 above).
81. As it has observed on many occasions, Article 3 of the Convention enshrines one of the fundamental values of democratic societies and as such it prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Article 3 admits of no exceptions to this fundamental value and no derogation from it is permissible under Article 15 even having regard to the imperatives of a public emergency threatening the life of the nation or to any suspicion, however well-founded, that a person may be involved in terrorist or other criminal activities (see, for example, the Aksoy judgment cited above, p ..., § 62).
82. In order to determine whether any particular form of ill-treatment should be qualified as torture, regard must be had to the distinction drawn in Article 3 between this notion and that of inhuman treatment or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of "torture" to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see the Ireland v. the United Kingdom judgment cited above, p. 66, § 167).
83. While being held in detention the applicant was raped by a person whose identity has still to be determined. Rape of a detainee by an official of the State must be considered to be an especially grave and abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and weakened resistance of his victim. Furthermore, rape leaves deep psychological scars on the victim which do not respond to the passage of time as quickly as other forms of physical and mental violence. The applicant also experienced the acute physical pain of forced penetration, which must have left her feeling debased and violated both physically and emotionally.
84. The applicant was also subjected to a series of particularly terrifying and humiliating experiences while in custody at the hands of the security forces at Derik gendarmerie headquarters having regard to her sex and youth and the circumstances under which she was held. She was detained over a period of three days during which she must have been bewildered and disoriented by being kept blindfolded, and in a constant state of physical pain and mental anguish brought on by the beatings administered to her during questioning and by the apprehension of what would happen to her next. She was also paraded naked in humiliating circumstances thus adding to her overall sense of vulnerability and on one occasion she was pummelled with high pressure water while being spun around in a tyre.
85. The applicant and her family must have been taken from their village and brought to Derik gendarmerie headquarters for a purpose, which can only be explained on account of the security situation in the region (see paragraph 14 above) and the need of the security forces to elicit information. The suffering inflicted on the applicant during the period of her detention must also be seen as calculated to serve the same or related purposes.
86. Against this background the Court is satisfied that the accumulation of acts of physical and mental violence inflicted on the applicant and the especially cruel act of rape to which she was subjected amounted to torture in breach of Article 3 of the Convention. Indeed the Court would have reached this conclusion on either of these grounds taken separately.
87. In conclusion, there has been a violation of Article 3 of the Convention.
88. As to the applicant's contention that the failure of the authorities to carry out an effective investigation into her treatment while in custody constituted a separate violation of Article 3 (see paragraph 76 above), the Court considers that it would be appropriate to examine this complaint in the context of her complaints under Articles 6 and 13 of the Convention.
