September 30, 2004

III.BACKGROUND

Sexual Violence during the 1994 Genocide

From April to July 1994, Hutu extremists at the helm of the Rwandan government perpetrated a genocide that cost the lives of at least half a million Tutsi, and moderate Hutu, including men, women, and children.[1] Perpetrators of the genocide sought to exterminate the Tutsi minority, who then represented approximately 10 percent of the Rwandan population. Violence during the genocide assumed gender-specific forms, affecting females differently than males. Members of Hutu militias known as Interahamwe, civilians, and the Rwandan Armed Forces (Forces Armes Rwandaises, FAR) targeted Rwandan women and girls in a genocidal campaign of mass sexual violence.

A 1996 report by the U.N. Special Rapporteur on Rwanda estimated that at least 250,000 women were raped during the genocide. The forms of gender-based and sexual violence[2] were varied and included individual rape; gang-rape; rape with sticks, guns, or other objects; sexual enslavement; forced marriage; forced labor; and sexual mutilation.[3] Sexual violence was one of many injuries inflicted upon Rwandan women and girls, who were often abused after having witnessed the torture and murder of their family members and the destruction of their homes. According to many personal accounts of the genocide, perpetrators of sexual violence murdered a large number of their victims directly following the sexual assaults.

Acts of sexual violence wrought devastating medical and psycho-social consequences on Rwandan women. Women and girls contracted sexually transmitted diseases, including HIV/AIDS; faced unwanted pregnancies[4] and health complications resulting from botched abortions; and suffered sexual mutilation and other injuries, such as fistulas,[5] uterine problems, vaginal lesions, and scarring.Ten years after the events, victims[6] of sexual violence, particularly those who bore children from the rape or suffered lasting physical injury, such as infection with HIV/AIDS, are still haunted by the abuse and remain traumatized, stigmatized, and isolated.

Mass sexual violence in Rwanda served strategic and political ends. Prior to and during the genocide, extremist propaganda vilified Tutsi women on the basis of both their gender and their ethnicity.[7] According to the extremist ideology, Tutsi women sought sexually to manipulate Hutu men as a means to achieve Tutsi domination of the Hutu community. Perpetrators of the genocide thus viewed sexual violence against Tutsi women as an effective method to shame and conquer the Tutsi population. Extremists also sexually assaulted Hutu women who held opposing political views, were married to Tutsi men, or sheltered Tutsi during the genocide. The breakdown of law and order during the violence also led to random sexual assaults against both Tutsi and Hutu women and girls.

There is scarce documentation of sexual violence from the period 1994-1998 that was unrelated to the campaign to exterminate Tutsi and moderate Hutu. However, field research has documented rape and forced marriage by advancing soldiers of the Rwandan Patriotic Army (RPA)-the military arm of the Rwandan Patriotic Front (RPF), the majority Tutsi rebel group that defeated the genocidal government in 1994 and proceeded to form the new Rwandan government-against Tutsi women whom they had "rescued" from perpetrators of the genocide.[8] Further, there is evidence that both Hutu extremists and RPA soldiers sexually assaulted Tutsi and Hutu women, respectively, during the protracted conflict between the Rwandan government and militia members who had fled to the Democratic Republic of Congo (DRC) following the RPF victory.[9]

The International Criminal Tribunal for Rwanda (ICTR), established by the U.N. Security Council in 1994, has jurisdiction over genocide, crimes against humanity, and violations of international humanitarian law committed in Rwanda and neighboring states in the period from January 1, 1994 to December 31, 1994. The ICTR has tried twenty-three defendants in its ten-year history. In its landmark decision in Prosecutor v. Akayesu, the court recognized that rape can be a constitutive act of genocide under international law,[10] but it has not followed up this decision with vigorous prosecution of rape cases.

The NGO Coalition on Women's Human Rights in Conflict Situations, Rwandan and international NGOs, and others have criticized the court's relative lack of attention to sexual violence crimes.[11] NGOs have noted that prosecutorial staff have not effectively investigated sexual violence and therefore neglected to include sexual violence crimes in some past indictments. The Security Council has set a deadline for the ICTR to complete all investigations by the end of 2004, all trials by 2008, and all appeals by 2010. NGOs have also reported that the tribunal's sexual violence investigators have not been properly trained to gain the confidence of and elicit information from rape victims.[12] In May 2004, the ICTR initiated a series of training seminars on gender sensitivity and sexual violence investigations.[13] With respect to witness protection, NGOs have criticized the absence of confidentiality safeguards and security measures upon the witnesses' return to Rwanda; the failure to provide genocide survivors who serve as witnesses antiretroviral (ARV) therapy and treatment for opportunistic infections of AIDS, which are made available to HIV-positive defendants detained by the tribunal;[14] inappropriate and offensive cross-examination of rape victims; lack of access to trauma counseling for rape victims; and finally, the absence of mechanisms to sanction inappropriate conduct by judges.

Rwandan Women in the Post-Genocide Period

In a country where the majority of the population fall below the national poverty line,[15] Rwandan women and girls, approximately 53.3 percent of the population, are at a particular disadvantage.[16] A large proportion of the male population was killed in the genocide or subsequent combat between the RPA and Hutu militias and ex-FAR. Many female genocide survivors and other women have been deprived of family upon whom they and their children depended for economic survival. In addition to those who were killed, tens of thousands of people were detained on genocide charges from July 1994 onward and the prison population reached a peak of more than 130,000 in late 1998.[17] The many women and girls whose male family members have been imprisoned have the additional burden not only of supporting themselves but also of providing food for their relatives in prison.[18] A 2001 survey by the Rwandan Ministry of Health and the National Population Office found that approximately 36 percent of families were headed by women, as compared to 21 percent in 1992, and that 8 percent of women were widows, as compared to 4 percent in 1992.[19] According to the World Bank, 97 percent of Rwandan women provide for themselves and their families through subsistence agriculture.[20]

Human Rights Watch interviewed victims of genocide and post-genocide sexual violence who were in desperate economic straits. C.M.,[21] a young woman who recently gave birth to a child from a rape in late 2003, was evicted by her parents after she revealed that she had been raped. She explained that her economic situation was bleak after she moved to the nearest town: "I didn't have enough to eat, drink, or take care of the baby."[22] Several women who earned a living from prostitution pleaded for financial assistance so that they could seek other work. They and social workers who assisted them reported that financial need had obliged many young women to turn to prostitution for survival.

Since 1994, the Rwandan government has adopted important measures to improve the status of women and girls. In particular, national initiatives have contributed to an impressive level of participation of women in political life. The 2003 constitution requires the government to ensure that all decision-making bodies are composed of women at a minimum ratio of 30 percent.[23] Women currently make up 48.8 percent of representatives in the national assembly, the highest percentage of parliamentary participation by women in the world.[24] Administrative structures called "women's councils" exist at the cell, district, province, and national levels[25] and represent women's positions on a variety of social issues.[26]

However, serious discrimination and abuse against Rwandan women and girls persist. Despite the adoption ofinheritance law reform in 1999, women and girls are denied equal rights to land under strongly rooted Rwandan customary law, which privileges the male head of household.[27] The inheritance law established three marital property regimes and granted equal inheritance rights to male and female children of civil marriages.[28] Significant textual gaps and obstacles to implementation have diminished the positive impact of this legislation.[29] In a society in which subsistence agriculture predominates, access to land often determines survival. Both women and girlsare targets of sexualand other forms of gender-basedviolence, including domestic violence, rape, forced marriage, and polygyny.[30] According to UNICEF, orphans and "other vulnerable children" number approximately one million in Rwanda, and many of these children are particularly at risk of sexual assault and sexual exploitation, and resort to survival sex.[31]

Our interviews with victims of sexual violence since the genocide, NGOs, and service providers revealed cases of rape of women and girls by relatives, neighbors, teachers, employers, domestic servants, police, and soldiers in the Rwandan Defense Forces (RDF, formerly the Rwandan Patriotic Army, RPA).[32]According to our review of judicial records and research studies by Rwandan NGOs, in every province in 2000-2004, complaints of sexual violence against girls far outnumbered complaints of sexual violence against adult women.[33] In fifteen judgments from the period 2000-2003, the complainant was under the age of sixteen at the time of the rape. Many representatives of human rights and women's rights organizations and government officials have pointed to a soaring rate of child rape since 1997-1998.[34] However, a representative of the Rwanda National Police, a government minister, and an NGO representative noted that the rising numbers most likely reflect greater community awareness of the issue and increased reporting, rather than a surge in sexual violence against children.[35]

In the wake of the genocide, numerous NGOs have taken up the cause of women's and girls' rights.[36] These include survivors' organizations with general or women's rights mandates that provide legal assistance and medical and counseling services; development organizations that promote the economic empowerment of rural women and girls; organizations that provide legal assistance to women and girls on such issues as violence, property rights, divorce, and custody; and organizations that seek to improve female educational performance or access to health care.

[1] For a comprehensive account of the genocide, and for a discussion of statistical difficulties in establishing the total number of victims, see Human Rights Watch, Leave None to Tell the Story: Genocide in Rwanda (New York: Human Rights Watch, 1999).

[2] This report uses the term "sexual violence" to refer collectively to the various forms of sexual abuse perpetrated during and since the genocide. Gender-based violence is violence that targets women because they are women or that disproportionately affects women. "Sexual torture" is employed only with reference to Rwanda's Organic Law of 30 August 1996 on the Organization of the Prosecution of Offences Constituting the Crime of Genocide or Crimes Against Humanity (Genocide Law) and the subsequent laws governing the gacaca system. The Rwandan Penal Code prohibits rape and sexual torture, though it does not define either term. Although the term "sexual torture" is not used in the penal code, article 316 may be understood to criminalize sexual torture, because it prohibits "torture or acts of barbarity" that are committed in connection with another crime. The crime, in this case, would be rape or injury to the sexual organs that would rise to the level of a criminal offense under the penal code.

[3] For a detailed study of sexual violence against women and girls during 1994 genocide, see Human Rights Watch/Africa and Human Rights Watch/Women's Rights Project, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath (New York: Human Rights Watch, 1996). In two recent reports, Amnesty International and African Rights have comprehensively documented the enduring health, social, and legal difficulties of genocide rape victims, particularly those living with HIV/AIDS, in the ten years since the genocide. See Amnesty International, "Marked for Death," Rape Survivors Living with HIV/AIDS in Rwanda (London: Amnesty International, 2004); African Rights, Broken Bodies, Torn Spirits: Living with Genocide, Rape and HIV/AIDS (Kigali: 2004).

[4] As of 1996, Rwanda's National Population Office had estimated that 2,000 to 5,000 children were born of rape. See Heather B. Hamilton, "Rwanda's Women: The Key to Reconstruction," The Journal of Humanitarian Assistance, [online] at http://www.jha.ac/greatlakes/b001.htm (retrieved April 19, 2004) (citing study by National Population Office).

[5] A fistula is an abnormal connection that develops between two of the body's organs. Recto-vaginal fistulas connect the rectum and the vagina and result in fecal matter passing through the fistula to the vagina and thus are often accompanied by fecal incontinence and infections; vesico-vaginal fistulas connect the vagina and the bladder and may result in urinary incontinence and infections. Fistulas arise from injury such as trauma or severe inflammation due to disease. Some fistulas will close spontaneously; others require surgical intervention.

[6] A person who has suffered sexual violence may be viewed as both a victim and a survivor. This report uses the terms interchangeably.

[7] For further details on the propaganda used to demonize Tutsi, see Leave None, pp. 65-96.

[8] Clotilde Twagiramariya and Meredeth Turshen, "'Favours' to Give and 'Consenting' Victims: The Sexual Politics of Survival in Rwanda," in Meredeth Turshen and Clotilde Twagiramariya, eds., What Women Do in Wartime: Gender and Conflict in Africa (New York: Zed Books, 1998), pp. 104-109. See also Amnesty International, "Marked for Death," pp. 2, 6, 16.

[9] Human Rights Watch interview with NGO representative, Kigali, February 22, 2004; Amnesty International, "Marked for Death," p. 2.

[10]Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Trial Chamber), September 2, 1998.

[11] See, for example, Amnesty International, International Criminal Tribunal for Rwanda: Trials and Tribulations (London: Amnesty International, 1998); Women's Caucus for Gender Justice, "Summary of Panel Discussions on Victim and Witness Issues, July 27, 1999 and August 4, 1999, [online] at http://www.iccwomen.org/archive/resources/vwicc/intro.htm (retrieved May 18, 2004).

[12] Connie Walsh (Center for Constitutional Rights, International Centre for Human Rights and Democratic Development, International Women's Law Clinic, and MADRE), "Witness Protection, Gender and the ICTR," October 17, 1997.

[13] Human Rights Watch telephone interview with ICTR representative, Arusha, Tanzania, August 11, 2004.

[14] The British Department for International Development (DFID) told Human Rights Watch that it seeks to fund a program to provide voluntary HIV counseling and testing and ARV therapy and treatment for opportunistic infections of AIDS to witnesses who testify in ICTR trials. Human Rights Watch telephone interview with DFID representative, Kigali, April 27, 2004. Initial funding would be in the amount of U.S.$300,000. Ibid. As of late July 2004, DFID was pursuing preparatory work to develop the program. Email to Human Rights Watch from DFID representative, Kigali, July 23, 2004.

[15] The Rwandan government has estimated that approximately 60 percent of Rwandans fall below the national poverty line, determined by such indicators as the ability to provide for basic material needs and annual household expenditures (total expenditures per adult below 64,000 Rwandan francs, or U.S.$108.84, or food expenditures per adult below 45,000 Rwandan francs, or U.S.$76.53). Government of Rwanda, Poverty Reduction Strategy Paper, June 2002, p. 13 [online] at http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/2002/08/23/000094946_02081004005783/Rendered/PDF/multi0page.pdf (retrieved April 27, 2004).

[16]Republic of Rwanda, Recensement Gnral de la Population de l'Habitat Rwanda: 16-30 Aot 2002, Rapport sur les Rsultats Prliminaires [General Census of Population of Rwanda: 16-30 August 2002, Report on the Initial Findings] (Kigali: 2003), p. 38. For a discussion of women's situation in post-genocide Rwanda, see Catharine Newbury and Hannah Baldwin, "Aftermath: Women in Postgenocide Rwanda," Working Paper No. 303, July 2000.

[17] Amnesty International, Annual Report 1999 (London: Amnesty International, 1999), [online] at http://www.amnesty.org/ailib/aireport/ar99/index.html (retrieved June 3, 2004).By mid-2004, approximately 77,000 remained in prison and communal lock-ups on genocide charges.

[18] See Martien Schotsmans, "Les Femmes et l'Aprs Gnocide," ["Women in the Aftermath of the Genocide"] in (Jacques Fierens, ed.), Femmes et gnocide: le cas rwandais [Women and Genocide: The Rwandan Case] (Brussels: Facult de droit des Facults univesitaires Notre-Dame de la Paix, 2003), p. 120.

[19] Ministry of Health/National Population Office, Enqute Dmographique et de Sant: Rwanda 2000 [Demographic and Health Study: Rwanda 2000], Demographic and Health Surveys MEASURE DHS + (Kigali: 2001), p. 13.

[20]World Bank, Rwanda: Country Brief, January 2004, [online] at http://www.worldbank.org/afr/rw/rw_ctry_brief.htm (retrieved March 22, 2004).

[21] The names of all rape victims have been replaced with different initials in order to respect their privacy. The names of other interviewees have been omitted where necessary to guarantee confidentiality.

[22] Human Rights Watch interview with C.M., February 29, 2004.

[23] Constitution of the Republic of Rwanda, Official Gazette of the Republic of Rwanda, June 4, 2003, art. 9.

[24] Inter-Parliamentary Union, "Rwanda Leads World Ranking of Women in Parliament," Press Release, October 22, 2003, [online] at http://www.ipu.org/press-e/gen176.htm (retrieved April 5, 2004).

[25] The Rwandan administrative structure is composed of five units, in ascending order: group of ten families; cell; sector; district; and province.

[26] Elizabeth Powley, "Women Lead Way to Rwanda's Future Democracy in Africa," International Herald Tribune, November 21, 2002.

[27]Jennie E. Burnet and Rwanda Initiative for Sustainable Development (RISD), Culture, Practice, and Law: Women's Access to Land in Rwanda (Kigali: 2001), pp. 8-11. See also Human Rights Watch, Uprooting the Rural Poor in Rwanda (New York: Human Rights Watch, 2001).

[28] Law to Supplement Book One of the Civil Code and to Institute Part Five Regarding Matrimonial Regimes, Liberalities and Successions, Official Gazette of the Republic of Rwanda, November 12, 1999; Burnet and RISD, Culture, Practice, and Law, p. 14. See also Human Rights Watch, Double Standards: Women's Property Rights Violations in Kenya (New York: Human Rights Watch, 2003).

[29] The law's protections for the property rights of women in marriage and female heirs apply only to civil marriage, whereas religious or customary unions are the prevailing practice among Rwandans. Ibid., pp. 12-14. Further, a 2001 study found that few Rwandans surveyed understood their rights under the law. Ibid., p. 16.

[30] Polygyny is a practice whereby a husband has more than one wife. See AVEGA-Agahozo [Association of Widows of the April Genocide], Survey on Violence against Women in Rwanda (Kigali: AVEGA, 1999).

[31] UNICEF, Rwanda: Facts and Figures, [online] at http://www.unicef.org/infobycountry/20289_20292.html (retrieved April 23, 2004). For a detailed study of abuses against Rwandan children in the post-genocide period, see Human Rights Watch, Lasting Wounds: Consequences of Genocide and War on Rwanda's Children (New York: Human Rights Watch, 2003).

[32] In addition, Rwandan NGOs have documented cases of forced and early marriage, particularly in rural areas. See AVEGA-Agahozo, Survey on Violence against Women in Rwanda; LIPRODHOR, Situation des Droits de la Personne au Rwanda en 2002: Rapport Annuel de la LIPRODHOR, [Human Rights in Rwanda 2002: Annual Report of LIPRODHOR] (Kigali: LIPRODHOR, 2003), p. 48.

[33]Ligue Rwandaise pour la Promotion et la Dfense des Droits de l'Homme (Rwandan League for the Promotion and Defense of Human Rights, LIPRODHOR), Rsultats de l'Enqute-Pilote sur les Actes de Viol et les Violences Faites aux Jeunes Filles et Femmes [Results of the Pilot Study on Rape and Violence against Young Girls and Women] (Kigali: 2000); p. 4; Haguruka, Rsultats de l'Enqute sur les Cas de Viol et d'Attentat la Pudeur Commis sur les Femmes et les Enfants de 1995 2002 [Results of Study on Incidence of Rape and Defilement against Women and Children in 1995-2002] (Kigali: Haguruka, 2003), pp. 23-24.

[34] See Haguruka, Rsultats de l'Enqute, p. 49.

[35] Human Rights Watch interviews with national police and government officials and NGO representative, Kigali, February 9-March 5, 2004.

[36] For a discussion of the rapid evolution of women's organizations in the post-genocide period, see Catharine Newbury and Hannah Baldwin, "Aftermath: Women's Organizations in Postconflict Rwanda," Working Paper No. 304, 2000.