|Appeal Judgement - 07.07.2006||
The Prosecution was arguing that non-consent is not an element of the crime of rape as a crime against humanity or as an act of genocide but that consent should rather be considered an affirmative defence. In the Prosecution’s view, rape should be viewed in the same way as other violations of international criminal law, such as torture or enslavement, for which the Prosecution is not required to establish absence of consent.
The ICTR Appeals Chamber followed the holding of the Kunarac Appeal Judgement that lack of consent and the accused's knowledge of that lack of consent are elements of rape as a crime against humanity. It rejected the Prosecution's contrary argument that consent should be treated as an affirmative defense. It held, however, that lack of consent and the accused's knowledge thereof may be inferred from the existence of coercive circumstances, as the Trial Chamber correctly did in this case (paras 151-157).
 Kunarac et al. Appeal Judgement, para. 127.
|ICTR Statute Article 3(g) ICTY Statute Article 5(g)|
|Decision on Whether to Continue or Restart Trial - 24.09.2003||
NYIRAMASUHUKO et al. (Butare)
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17. The Appellants do not take their arguments as far as to suggest that consent is the source of the Tribunal’s competence to provide for continuation of a hearing with a substitute judge, and accordingly there is no need to consider the basis of that competence. The Tribunal will limit itself to observing that, as a matter of pleading, consent may preclude a party from questioning a decision to continue a hearing but that consent cannot give the Tribunal competence to continue if the Tribunal does not otherwise have it; the power of the Tribunal to continue the hearing with a substitute judge exists dehors consent. The Appeals Chamber takes the view that, though apparently absolute, the right to consent to continuation of the trial was not proprietorial but functional. The right to consent gave protection against possible arbitrariness in the exercise of the power of the Tribunal to continue the hearing with a substitute judge; consent was only a safeguard.
18. The question therefore is whether the safeguard provided through the mechanism of consent under the old Rule 15bis was replaced by the modifications made on 27 May 2003 by a safeguard of equivalent value. The new Rule 15bis contains various safeguards: the decision by the two remaining judges is a judicial one; it is taken after hearing both sides; the two remaining judges know the case as it has so far developed; their decision must be unanimous; an appointment can only be made once. Further, there is an unqualified right of appeal by either party from the decision taken by the two remaining judges direct to a full bench of the Appeals Chamber. Finally, in cases where the Appeals Chamber affirms the Trial Chamber’s decision or if no appeal is lodged, the newly assigned judge must certify that he has familiarised himself with the record of the proceedings; if he cannot give the required certificate of familiarisation, he cannot eventually be substituted.
19. In effect, under the new Rule 15bis, the purpose of the old safeguard is met by the various procedures mentioned in paragraph 18 above. In the opinion of the Appeals Chamber, the value of the old safeguard is equivalent to the value of the new one, with the consequence that no material prejudice results to the accused from providing for the application of the new safeguard where the accused withholds his consent: in both cases there is an equivalent protection against arbitrariness. It follows that, even if, in the case of a judge who has not been re-elected, there was a right to consent to continuation of the trial under the old provision, the operation of the newly amended Rule 15bis does not prejudice the rights of the Appellants in the pending trial.
See also para. 21.
|ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis|