MacKinnon’s observation is supported by Prosecutor v. Kajelijeli. In 1998, Juvénal Kajelijeli, former mayor in the Commune of Mukingo, was arrested at the request of the Chief Prosecutor of the ICTR for his role in the Rwandan genocide. Kajelijeli allegedly ordered, organized, supervised, and personally carried out attacks against Tutsi civilians in 1994. On December 1, 2003, the Second Trial Chamber of the ICTR declared that Kajelijeli was: not guilty of “conspiracy to commit genocide,” guilty of “genocide,” guilty of “direct and public incitement to commit genocide,” guilty of “extermination as a crime against humanity,” not guilty of “rape as a crime against humanity,” and not guilty of “inhumane acts as a crime against humanity.”4 Despite credible evidence that soldiers under Kajelijeli’s effective control had committed rape and sexual assault, and several witness testimonies that provided strong circumstantial evidence showing that Kajelijeli had authorized such acts, the ICTR found the evidence insufficient to prove that Kajelijeli had ordered the rape or sexual assault.5 In her dissent, Judge Arlette Ramaroson concluded that despite the majority’s holding:

there is substantial, specific and corroborative evidence to sustain the allegation that Kajelijeli committed the crime with which he is charged and that, consequently, he is responsible for the rapes perpetrated on women.6

Additionally, in Prosecutor v. Muvunyi, Lieutenant Colonel Tharcisse Muvunyi, former Commander of Rwandan military school École des sous-officiers, was found guilty of direct and public incitement to commit genocide but acquitted of rape charges.7 According to the prosecution, “several women and girls were raped and were subject to sexual violence in these very same places or were forcibly taken or compelled to go to other places where they were raped or subjected to sexual violence on the part of the Interahamwe militia and soldiers from the Ngoma camp” and, in the majority of the rape incidents, “it was Muvunyi who gave the order directly to the soldiers and militia to carry out the attacks. At all events, due to his position of authority and the generalised nature of the massacres, Muvunyi knew, or had reasons to know that these attacks were taking place, but took no steps to prevent them, to put a stop to them or to punish the perpetrators.” However, Muvunyi was ultimately acquitted of the rape charges but found guilty of incitement to commit genocide.8

B. Instigation of sexual and gender based crimes (Prosecutor v. Gacumbitsi) vs. instigation of persecution (Prosecutor v. Brđanin)

The ad hoc tribunals appear to treat evidence in sexual violence cases involving instigation differently from other types of cases. According to the ICTY Appeals Chamber, in cases involving instigation:

it is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused, [rather] it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.9

In Prosecutor v. Brđanin, the ICTY Trial Chamber held that the defendant was guilty of instigating the crime against humanity of persecution. This decision was based on Brđanin’s Autonomous Region of Krajina (ARK) staff deciding to request municipal authorities to disarm, dismiss from employment, and resettle non-Serbs. Even though there was no evidence presented to demonstrate that the ARK staff was acting in direct response to Brđanin’s statements, or that they were even aware of his statements; rather, it was sufficient that Brđanin made inflammatory statements, and that he was in a position of power, which suggested a causal link between the ARK’s decisions and the deportation and forcible transfer of non-Serbs. Based on this, the Trial Chamber ultimately concluded that Brđanin’s “statements could only be understood by the physical perpetrators as a direct invitation and prompting to [deport and forcibly transfer non-Serbs].”10

This is markedly different from the standards evidenced in Prosecutor v. Gacumbitsi, a case involving sexual violence. The defendant, Gacumbitsi, was charged with instigating rape and sexual degradation of Tutsi women. Gacumbitsi had been driving around telling Hutu men to rape Tutsis in explicit detail, using a megaphone. The ICTR Appeals Chambers did not find the connection between Gacumbitsi’s actions and those of the physical perpetrators sufficient to establish instigation. According to the court, although the acts “appear to have been committed after the Appellant instigated rape, there is no evidence that the Appellant’s instigation substantially contributed to them.” Thus, it rejected as “speculative” the Prosecution’s argument that “even if some perpetrators of [these] rapes did not directly hear the [Appellant]‘s instigation, they were told by others about it, or were inspired by the actions of others who had heard it.” This case stands in stark contrast to the Brđanin case, suggesting that the causal link required to establish instigation for sexual and gender based crimes may need to be stronger than that of other crimes.11

III. Prosecutor v. Katanga: possible higher evidentiary standard at the ICC

On March 7, 2014, the ICC found Congolese rebel leader Germain Katanga guilty as an accessory to “one count of crime against humanity (murder) and four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging)” committed in 2003 during an attack on the village of Bogoro in the Democratic Republic of the Congo (DRC). Katanga was acquitted, however, of the crimes of rape, sexual slavery and using child soldiers.12

In a statement released the day of Katanga’s judgment, Brigid Inder, Executive Director of the Women’s Initiatives for Gender Justice, expressed disappointment over the ruling and, specifically, that:

[T]he judges appeared to expect a different level of proof regarding Mr. Katanga’s contribution to [the crimes of sexual violence] than they required to convict him on the basis of his contribution to the crimes of directing an attack against a civilian population, pillaging, murder, and destruction of property, which were committed at the same time as women in the village were being raped. … Mr Katanga’s acquittal on charges of rape and sexual slavery is a devastating result for the victims/survivors of the Bogoro attack, as well as other victims of these crimes committed by the FRPI within the ethnically-driven conflict in Ituri.13

Inder went on to note that:

[I]t is possible that a higher standard of evidence was expected in relation to sexual violence, including requiring a more deliberate intention to commit these crimes in the Bogoro attack, which they did not require in convicting Mr Katanga for the crimes of directing an attack against a civilian population, pillaging, murder and destruction of property. This judgment on face value appears to be inherently inconsistent. Mr Katanga was convicted on the basis of his contribution to the Bogoro attack. The majority of the judges concluded that Mr Katanga’s contribution reinforced the militia’s capacity to proceed with the attack and allowed the attack to be implemented. The Trial Chamber therefore found he contributed to all of the crimes associated with the attack as charged by the Prosecution, except for the acts of sexual violence.14

The outcome in the Katanga case appears to align with those of the ICTY and ICTR; similar to the ad hoc tribunals, the ICC may be applying a higher evidentiary standard for sexual and gender based crimes, even when the sexual violence for which the defendant is charged occurs during the same attack as the other charges.

IV. Conclusion

An examination of Prosecutor v. Kajelijeli, Prosecutor v. Muvunyi, Prosecutor v. Gacumbitsi and Prosecutor v. Brđanin and Prosecutor v. Katanga suggests that the international courts are applying a higher evidentiary standard for cases involving sexual and gender based crimes than for other crimes. While the solutions proposed in the OTP’s Draft Policy Paper on Sexual and Gender Based Crimes may help alleviate some of the problems that are unique to sexual and gender based crimes, to fully address the problem, it may also be necessary to evaluate the evidentiary standards imposed by the Court.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Kasiva Mulli, TJ Monitor: ICC Judgment Against Katanga Shows that the Battle for Accountability of Sexual Crimes in Conflict is Not Yet Won, Justice and Reconciliation Project (May 2, 2014), available online. ↩

2. 2.

   Office of the Prosecutor, International Criminal Court, Draft Policy on Sexual and Gender Based Crimes (2014) available online, archived. ↩

3. 3.

   Catharine A. MacKinnon, The ICTR’s Legacy on Sexual Violence, 14 New Eng. J. Int’l & Comp. L. 211, 215 (Dec. 2, 2008), available online, archived. ↩

4. 4.

   Juvénal Kajelijeli, TRIAL, available online (last visited Apr. 8, 2016). ↩

5. 5.

   Susana SáCouto & Katherine Cleary, Importance of Effective Investigation of Sexual Violence and Gender-Based Crimes at the International Criminal Court, 17 Am. U. J. Gender & Soc. Pol’y & L. 337 (2009) , available online, archived. ↩

6. 6.

   The Prosecutor v. Juvénal Kajelijeli, ICTR-98-44A-T, Dissenting Opinion of Judge Arlette Ramaroson (ICTR Trial Chamber II, Dec. 1, 2003), available online, archived. ↩

7. 7.

   The Prosecutor v. Tharcisse Muvunyi, Int’l Crimes Database, available online (last visited Apr. 8, 2016). ↩

8. 8.

   Id. ↩

9. 9.

   SáCouto & Cleary, supra note 5, at 356. ↩

10. 10.

    Id. ↩

11. 11.

    Id. ↩

12. 12.

    International Criminal Court, Questions and Answers about the Judgment Rendered by Trial Chamber II in the Case of The Prosecutor v. Germain Katanga (Mar. 7, 2014), available online. ↩

13. 13.

    Women’s Initiatives for Gender Justice, Partial Conviction of Katanga by ICC Acquittals for Sexual Violence and Use of Child Soldiers (Mar. 7, 2014), available online. ↩

14. 14.

    Id. ↩