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Prosecuting the Akayesu Case

Pierre-Richard Prosper, Special Counsel and Policy Advisor to the U.S. Ambassador-at-Large for War Crimes

Legally, prosecuting the Akayesu case was also a—I guess a fascinating experience, in that the Genocide Convention had never been applied before. I had no precedent; there was nothing to go to. The Genocide Convention was essentially a two-page document. We had to take that document, interpret it, and apply it to the real facts that we had before us. We looked at some of the writings from the scholars, we talked to the leading experts on this to get their view, but that could just help us just a little bit. We had to make the decision at that time on how we saw genocide and how to apply it to the facts at hand. It caused for a lot of discussions, creative applications of the various elements, and part of that was dealing with the issue of rape and sexual violence. In the past, rape was never considered part of genocide. Most people thought rape was—excuse me. Most people thought genocide was just mass extermination, or maybe there was some form of mutilation that would constitute genocide. But rape was never put in the same category. But we argued that—based on the fact that it could fall under a provision of causing serious bodily or mental harm, we argued that rape should and could fall within that category, as long it was done with the intent to destroy in whole or in part the group. That’s what we had in our case, and fortunately, the chamber accepted it.

Yeah. The argument made to the court—it was a three-panel court—was that rape can constitute part of genocide, but you have to look at the totality of the circumstances. Standing alone, it may be difficult to show that it’s genocide, but when you take everything—again, you take the fact that the intellectuals were killed, that the husbands were killed, that the boys were killed, that any—maybe children were killed, and that the woman were systematically raped multiple times. I mean, we heard stories of women being raped easily twelve to fifteen times in one week by militiamen. So therefore, the argument to the chamber was that, taking the totality of the circumstances, the rape was done with the intent to destroy, because they wanted the women to be humiliated to such an extent that they no longer functioned in normal society, that they were off to the side; they now were irrelevant; they were essentially zombies walking throughout the commune.

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