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Fem Leg Stud (2009) 17:145–163

DOI 10.1007/s10691-009-9118-5

Rethinking ‘Rape as a Weapon of War’

Doris E. Buss

Published online: 17 July 2009

! Springer Science+Business Media B.V. 2009

Abstract One of the most significant shifts in current thinking on war and gender
is the recognition that rape in wartime is not a simple by-product of war, but often a
planned and targeted policy. For many feminists ‘rape as a weapon of war’ provides
a way to articulate the systematic, pervasive, and orchestrated nature of wartime
sexual violence that marks it as integral rather than incidental to war. This recog-
nition of rape as a weapon of war has taken on legal significance at the Rwandan
and Yugoslav Tribunals where rape has been prosecuted as a crime against
humanity and genocide. In this paper, I examine how the Rwanda Tribunal’s record
of judgments conceives of rape enacted as an instrument of the genocide. I consider
in particular how the Tribunal’s conception of ‘rape as a weapon of war’ shapes
what can be known about sexual violence and gender in the Rwandan genocide and
what cannot, the categories of victims legally recognised and those that are not, and
the questions pursued, and those foreclosed, about the patterns of violence before
and during the genocide.

Keywords Genocide ! International law ! International Criminal Tribunal

for Rwanda ! Rape ! Sexual violence ! War


One of the most significant shifts in current thinking on war and gender is the
recognition that rape in wartime is not a simple ‘by-product’ of war, but is often a

D. E. Buss (&)
Law Department, Carleton University, 1125 Colonel By Drive, Ottawa, ON K1S 5B6, Canada
e-mail: doris_buss@carleton.ca

Electronic copy available at: http://ssrn.com/abstract=1373975
146 D. E. Buss

planned and targeted policy.1 The recognition that rape can be a weapon of war is
now almost standard fare in media coverage and human rights analyses of conflicts
from Darfur to the Democratic Republic of the Congo. And this shift in thinking
about sexual violence in war is, with good reason, celebrated as an important
advance for feminist engagement with international law and policy.
In this article, I am interested in some of the analytical, epistemological and
ontological work that ‘rape as a weapon of war’ does within international law. The
focus of my inquiry is the International Criminal Tribunal for Rwanda (ICTR) and
its body of decisions relating to, or touching on, the widespread phenomenon of rape
that took place during the violence and genocide of 1994. The Rwanda Tribunal is
supposed to complete its trial work by the end of 2008 and appeals by 2010. And
while it is now clear these deadlines will not be met,2 its case record is, at the time
of writing in December 2008, nearing completion. What does the record of the
Tribunal reveal about how rape, recognised as an instrument of the genocide, is
treated and understood? What stories of rape and other forms of violence are visible
on the Tribunal’s record and which stories are not? What can be known about
sexualised violence and gender harm through ‘rape as a weapon of war’? And what
can not?
In posing these questions, this article seeks to contribute to the growing body of
feminist scholarship examining post-conflict justice mechanisms, such as war
crimes tribunals, truth and reconciliation commissions, transitional/peace agree-
ments, as spaces within which gender norms and identities are defined and reiterated
(Kimura 2008; Campbell 2007; Ni Aolain and Rooney 2007; Engle 2005; Ross
2003). While the post-conflict period is often heralded as a richly transformative
time in which social and political relations can be reconstituted, this literature has
begun mapping how gender identity and relations are often reiterated in
conservative ways, particularly through the assessment of gender and sexualised
Post-conflict trials, particularly the two international tribunals for Yugoslavia and
Rwanda, and truth commissions, such as the South African one, are the most
productive, recent sites for recording—through court decisions and reports—
women’s experiences of armed conflict. Analyses of these records, however,
suggest that when women testify about their own suffering, their evidence tends to
be constrained by the trial or commission process which limits what women can
speak of (Kelsall and Stepakoff 2007; Mertus 2004; Ross 2003), or re-interprets
their evidence as tales of sexual violence (Ross 2003; Franke 2006). Further, the
process of testifying tends to construct women as a particular type of victim whose
suffering denotes a communal narrative of pain (Ross 2003; see also Franke 2006).
The conclusions reached from the study of post-conflict trials and commissions raise
doubts about the presumed therapeutic benefits of testimony (Dembour and Haslam
2004; Mertus 2004). For my purposes, this research also highlights the intricate

See, e.g., United Nations Security Council Resolution 1820 (S/Res/1820/2008), available at
http://www.un.org/Docs/sc/unsc_resolutions08.htm (accessed 1 March 2009).
See Statement of the President of the Security Council, S/PRST/2008/47 (10 December 2008),
available at http://www.un.org/Depts/dhl/resguide/scact2008.htm (accessed 28 February 2009).

Electronic copy available at: http://ssrn.com/abstract=1373975
Rethinking ‘Rape as a Weapon of War’ 147

relationship between how harms are identified and the constitution of particular
subject positions—victim, for example—in post-conflict justice mechanisms (Ross
2003; Engle 2005; Campbell 2002).
In this article, I explore how the legal definition of a particular harm, rape as an
instrument of the genocide, constitutes the victim as ‘‘naturally gendered’’ (Ross
2003, p. 25), foreclosing a closer account of sexual violence and the harms suffered
by women. My discussion focuses on the decisions of the Rwanda Tribunal as
producing a narrative of sexual violence and harm enacted as a ‘weapon of war’, or,
in this case, an instrument of the genocide. How does this narrative of rape as a
weapon shape and constrain what can be known about sexualised violence in
Rwanda? What questions are pursued and which foreclosed through the narrative of
‘rape as a weapon of war’?
The 1994 Rwandan genocide took place over a three-month period beginning on
6 April, when the plane carrying Rwandan President Habyarimana was shot down, it
is still not clear by whom, as it approached Kigali. The immediate events leading to
the genocide began in 1990 when the Rwanda Patriotic Force (RPF), an army of
expatriate Rwandans, mostly Tutsi but also Hutu, first invaded Rwanda from
Uganda. The resulting civil war continued sporadically throughout the early 1990s
(Melvern 2000; Prunier 1995; Des Forges 1999; Dallaire 2003) and formed an
important backdrop to the genocide. The genocide ended in July 1994 when
government forces left the country, forcing over a million Rwandan civilians to
leave with them (Prunier 1995, p. 313). Paul Kagame, leader of the RPF, is the
current President of Rwanda.
An estimated 800,000 Rwandans, mostly Tutsi were killed in the 100-day period
of the genocide. While the genocide eventually engulfed almost all Rwanda, it
unfolded unevenly across the country. Several areas in Rwanda (such as Gitarama
and Butare) resisted the calls to genocide. In those regions, Hutu and Tutsi fought
together, ultimately unsuccessfully, against the leaders of the genocide. And in one
location—Giti—genocide never took place (Straus 2006, Chap. 3).
In November 1994, the United Nations Security Council established an
international tribunal, similar to the International Criminal Tribunal for Yugoslavia
(ICTY), to prosecute the organisers of the genocide for international crimes. The
Rwanda Tribunal, based in Arusha, Tanzania, has been beset by controversy over its
location and slow start to prosecuting defendants.
This article begins with a discussion of feminist analyses of rape as a weapon of
war. This discussion focuses on the early 1990s and the outbreak of the wars in
Yugoslavia as the backdrop against which feminist arguments for the recognition of
rape as a weapon of war ultimately gained legal traction at the Yugoslav and
Rwanda Tribunals. I then provide an overview of legal decisions rendered by the
Rwanda Tribunal, as of December 2008, on rape and sexual violence, tracing what I
see as a paradoxical treatment of rape: a strikingly low conviction rate for rape or
sexual violence offences but relatively strong and repeated recognition of rape as a
widespread and instrumental component of the genocide. The resulting narrative of
‘rape as an instrument of the genocide’, I explain in the third section, constrains the
types of victims and forms of harm made visible on the Tribunal record. Further,
‘rape as an instrument of the genocide’ impacts on what is known and knowable

148 D. E. Buss

about sexual violence and the Rwandan genocide. I argue that the narrative of rape
as an instrument of the genocide makes it difficult to ask why the rapes happened,
how the rapes might have been connected to various social relations and structures
that pre-dated the genocide, and what women did to negotiate and resist sexual
In exploring these arguments, I draw from two stories found in academic
accounts of genocide survivors. These stories are offered not as a better or more
truthful account of the genocide than that found in Tribunal judgments, but as a
more nuanced recounting of the multiple factors that exposed particular women to
attack. My objective is to consider the social, political and economic complexity
that shaped individuals’ experiences of the genocide and which tends to be glossed
over in an approach to ‘rape as an instrument of the genocide’. This absence of
complexity, I suggest, has the unintended consequence of depicting rape as almost a
natural, or inevitable gendered consequence of the genocide.

Rape as a Weapon of War

‘Rape as a weapon of war’ is not a legal concept but it has taken on legal
significance with efforts by the Rwanda and Yugoslav Tribunals to prosecute rape
as a component of the conflicts in both those regions. ‘Rape as a weapon of war’
calls attention to rape as instrumental to, rather than a mere by-product of, armed
conflict. This instrumentalist understanding of rape has been a key feature of some
feminist approaches to sexual violence against women. Susan Brownmiller, in her
landmark 1975 study, observed that ‘‘Man’s discovery that his genitalia could serve
as a weapon to generate fear must rank as one of the most important discoveries’’
(Brownmiller 1975, p. 14). For Brownmiller, rape was a weapon used against
women by men in both ‘peace’ and ‘war’ times. But in wartime, she argued, rape is
both an attack on women (as women) and part of an attack against ‘the enemy’. It
‘‘is a message passed between men—vivid proof of victory for one and loss and
defeat for the other’’ (Brownmiller 1975, p. 13).
This analysis of rape as playing a role in armed conflict found support in feminist
exploration of the gendered ideologies and effects of nationalism (see, for example,
Anthias and Yuval-Davis 1993; McClintock 1995). Elshtain (1987, p. 67), for one,
argued that within nationalist ideology, women are, in effect, the ‘‘symbolic
representations’’ of the body politic, to be protected during war as the very nation
itself. Women thus become the embodied boundaries of the nation-state, and as
such, are targets for violence directed against a national collectivity.
When war broke out in Yugoslavia in the early 1990s, many of the patterns of
violence directed at civilians appeared to confirm feminist analyses of the
vulnerability of women in ‘nationalist’ conflicts. The war in Bosnia Herzegovina,
in particular, was characterised by acts of brutality against the civilian population,
including the rape of women. Rape was described by international and local
observers as a targeted policy to force or coerce civilians from one group out of a
region claimed by another (see, for example, Gutman 1993, 1994; Final report of
the Commission of Experts 1994). Women from particular ethnic or national

Rethinking ‘Rape as a Weapon of War’ 149

communities were often publicly raped as a means to terrorise local populations.

Later reports would document the rapes of women held in prison camps in different
locations in Bosnia.3
A leading feminist analysis of these rapes at the time was an edited collection by
journalist Alexandra Stiglmayer entitled Mass Rape: The War Against Women in
Bosnia (1994). While that book included a range of feminist voices, it, along with
numerous other journal articles, symposia and books, came to focus on rape as a
weapon of war (see, for example, Allen 1996; Copelon 1994; Kohn 1994; Hastings
Law Symposium 1994; MacKinnon 1994a; Seifert 1994). Other terms found in this
literature include rape as an ‘instrument of genocide’ (Askin 2003), an ‘engine of
war’ (Copelon 1994, p. 205), a ‘war tactic’ (Tompkins 1995, p. 859), and so on.
Like ‘rape as a weapon of war’, these expressions reflect a conception of rape as
having a function (Seifert 1994, p. 55) or use (MacKinnon 1994b, p. 75) in, for
example, furthering militaristic, masculinist and/or nationalist goals such as the
destruction of a community (Copelon 1994, p. 206; MacKinnon 1994b, p. 75;
Seifert 1994, p. 62; Kohn 1994, p. 203).
‘Rape as a weapon of war’ thus refers to sexual violence as having a systematic,
pervasive, or officially orchestrated aspect, emphasising that rapes ‘‘are not random
acts, but appear to be carried out as deliberate policy’’ (Niarchos 1995, p. 658). It is a
claim that rape, in some contexts is a ‘‘political event’’, located within militaristic or
nationalist agendas and requiring substantive analysis and action (Seifert 1994, p. 68).
While the ‘instrumentalism’ of rape was highlighted by many feminists, legal
feminists in the early 1990s were divided on the implications of advocating for a
recognition of rape as a gender crime versus rape as genocide. Some feminists
argued the rapes in Bosnia were part of a genocide against non-Serbs (MacKinnon
1993, 1994a), and the extreme nature of these rapes as genocide committed by
Serbian military forces should be emphasised. Other feminists cautioned against
overplaying the exceptionalism of this example of ‘mass rape’ as genocide, arguing
that rape as genocide would set too high a marker that might erase less exceptional
forms of violence against women (Copelon 1994).
These debates, canvassed elsewhere (Engle 2005; Buss 2008), did not touch on
the implications of seeing rape as an instrument of a larger campaign of violence,
for which there appeared broad consensus. Indeed, the subsequent work of the
Yugoslav and Rwanda Tribunals owes much to the activism and effort of feminists
who, as lawyers employed by the Tribunals, or as ‘friends of the court’ (see Copelon
2000), have had a substantial impact on the Tribunals’ determinations that rape is a
war crime and, more specifically, can constitute a crime against humanity or

See, generally, Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No. IT-96-
23 & IT-96-23/1-A (ICTY, Trial Chamber), 22 Feb 2001, available at http://www.icty.org/x/cases/
Patricia Viseur Sellers, for example, has been a Legal Advisor for Gender-related Crimes in the Office
of the Prosecutor for the ICTY, while Catharine MacKinnon was appointed Special Gender Adviser to the
Prosecutor of the International Criminal Court (Press Release, ‘ICC Prosecutor appoints Prof. Catharine
A. MacKinnon as Special Adviser on Gender Crimes’, The Hague, 26 November 2008, available at
http://www.icc-cpi.int/press/pressreleases/450.html (accessed 21 December 2008)).

150 D. E. Buss

The conception of ‘rape as a weapon of war’ thus laid the groundwork for the
legal recognition of rape as a crime by the Rwanda and Yugoslav Tribunals. Rapes
in both conflicts are most often charged as crimes against humanity or genocide.5
The definition of rape itself is somewhat unsettled at the Tribunals, with some
judgments using a definition of rape as ‘‘a physical invasion of a sexual nature’’, and
others defining rape in terms of penetration by specified body parts (see De Brouwer
2005, pp. 105–129; MacKinnon 2006). The debate over the mechanics of defining
the act of rape is not an issue I explore here. My focus is on the prosecution of rape
as connected to the larger context of violence, that is rape as a crime against
humanity or rape as genocide.
Prosecuting rape as a crime against humanity requires showing the act of rape,
however defined, took place as ‘‘part of a widespread or systematic attack against
any civilian population on national, political, ethnic, racial or religious grounds’’.6
Rape as genocide requires that the act of rape was ‘‘committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group’’.7 Under
both crimes, rape is a crime against a collectivity. It has an individual component—
the act of sexual violence against an individual—but it becomes a crime against
humanity or genocide by targeting a community of people through the commission
of the individual act.
For example, the ICTR found Mikaeli Muhimana, a counsellor (conseiller) in
Kibuye, western Rwanda, guilty of participating in and abetting rape as a crime
against humanity. The Tribunal held the rapes took place at the same time as a
‘‘discriminatory, widespread attack’’ against ‘‘a group of Tutsi civilians in Gishyita
Commune, between the months of April and June 1994.’’8 Muhimana was found to
have engaged in acts of rape against women he believed were Tutsi. ‘‘Whether the
victims were in fact Tutsi is irrelevant…. [H]e raped his victims with the knowledge
that the rapes formed part of a widespread and systematic attack on the Tutsi civilian
population’’.9 Hence the Tribunal found Muhimana ‘‘criminally liable for commit-
ting and abetting the rapes charged, as part of a widespread and systematic attack
against a civilian population’’,10 that is, a crime against humanity.
In the much-lauded first Tribunal decision in Akayesu,11 Jean-Paul Akayesu, a
bourgmestre (mayor) of Taba commune in south Rwanda, was convicted of aiding
and abetting rapes committed as acts of genocide. Although rape charges were not
initially pursued by the prosecutor, the intervention of judge Navanethem Pillay,
and legal argument made by feminist groups, resulted in mid-trial amendments
Rape can be charged also as a war crime, a serious violation of common Article 3 of the 1949 Geneva
Conventions (see, e.g., De Brouwer 2005, Chap. 3), though this tends to be the least used of the charges to
address sexual violence at the ICTR.
ICTR Statute, Article 3.
ICTR Statute, Article 2.
Prosecutor v Mikaeli Muhimana, Case No. ICTR-95-1B-T (ICTR, Trial Chamber III), 28 April 2005, at
para 558, available at
Ibid at para 561.
Ibid at para 562.
Prosecutor v Jean Paul Akayseu, Case No. ICTR-96-4-T (ICTR, Chamber 1), 2 September 1998,
available at

Rethinking ‘Rape as a Weapon of War’ 151

introducing charges of rape (Copelon 2000). The Tribunal found that rapes were
widespread, the accused knew of and aided and abetted in the rapes, and rapes
‘‘were committed with the specific intent to destroy, in whole or in part, a particular
group’’,12 namely the Tutsi. The Tribunal went further to rule the rapes in fact
resulted in physical and psychological destruction of Tutsi women, their families
and their communities. Sexual violence was an integral part of the process of
destruction, specifically targeting Tutsi women and contributing to their destruction
and to the destruction of the Tutsi group as a whole.13
Rape was used, the Tribunal held, to commit the crime of genocide.
The Rwanda Tribunal’s recognition that rape in the 1994 genocide was a crime
against humanity and/or an integral part of the genocide is continuous with some
feminist analyses of rape in war as instrumental to the larger conflict. Placing rape at
the centre of the conflict—as a constituent element of the violence—is an important
manoeuvre allowing for the recognition that violence is gendered. And, there is
ample evidence (Human Rights Watch 1996) that sexual violence against women in
Rwanda was widespread and closely connected to the regimes of violence.
Without wanting to minimise the extent and severity of the sexual violence
against women in Rwanda, in the following discussion I consider some of the
unintended consequences of categorising sexual violence as a weapon of war. The
Rwanda Tribunal decisions, while laudable in many respects, can be read as
narrating a limited conception of harm and the complex dimensions of violence in
1994 Rwanda.

The Record on Prosecuting Rape as a Weapon of War

The Rwanda Tribunal’s record on prosecuting sexual violence is disappointing. The

Tribunal has largely failed to charge individual accused with sexual violence
crimes, or, where these charges are included in the indictment, the Office of the
Prosecutor (OtP) has either not pursued them at trial, or pursued them
The numbers tell the story. As of December 2008, the Tribunal has overseen the
completed trials and guilty pleas of 48 men, only 15 of whom went to trial on
charges including rape or sexual violence.14 Only five men15 in total have been
found guilty of rape-related charges. Further, eight men have pleaded guilty before
the Tribunal, five of whom were charged with sexual violence crimes. All five were
able to have their sexual violence charges dropped in exchange for guilty pleas on
other counts. No one has pleaded guilty to any sexual violence offences.

Ibid at para 731.
There are many different ways to count cases at the ICTR and I have focused only on contested
decisions on the merits of the case, and excluded, for example, convictions for perjury.
The five men found guilty of rapes, as of December 2008, are Akayesu, Bagasora, Gacumbitsi,
Muhimana and Semanza.

152 D. E. Buss

Many of the trials at the Tribunal have been conducted against multiple accused
at the same time, and some of these cases have been complex, taking years to
complete. Twenty-nine judgments, relating to both individual and multiple accused,
have been issued by the Tribunal as of December 2008 (some are still under appeal).
Fifteen, or just over half of these judgments, mention in some way rape or sexual
violence against women. Thus, while only five men have been convicted, rape and
sexual violence are visible on the Tribunal record in other ways.
Analysts within and outside the Rwanda Tribunal16 have identified a number of
reasons for the low prosecution and conviction rate for sexual violence, listing such
things as a lack of or shifting political commitment by the OtP; poor investigations
and training by the investigation unit; lack of diversity among investigators; poor
drafting of indictments; lack of coordination between OtP and investigations;
cultural resistance to testifying by Rwandan rape survivors; and so on. The result is
that few indictments have included rape charges, and of those that have, the vast
majority of allegations have been dismissed for insufficient evidence, or because of
a defect in the form of the indictment. Importantly, in some cases where rape
accusations have been dismissed, the Tribunal has noted that it believes the rapes
actually took place but has dismissed the indictments for one of the reasons listed
The paradox of the Rwanda Tribunal’s record on rape is that while largely failing
to prosecute rape, the Tribunal has repeatedly acknowledged the widespread and
instrumental quality of sexual violence against Tutsi women. Rape as an instrument
of the genocide is obvious in the Rwanda Tribunal’s decisions, even while few
individual accused have been held legally responsible for rape. Scholars and
activists (Haffajee 2006; Nowrojee 2005b) have made a number of recommenda-
tions for changes to procedure and strategy that might increase the prosecution rate,
but this leaves unaddressed the other component of the paradox: the apparent ease
with which the Tribunal has seen and acknowledged the widespread use of rape as
instrumental to the larger pattern of violence.
The Tribunal’s first judgment in Akayesu, introduced above, is the oft-cited
leading decision recognising rape as an instrument of the genocide. In that case, the
accused, as mayor, was deemed responsible for the rape and killing of women in
Taba commune. The Tribunal ruled unequivocally that the mass rape of Tutsi
women was a significant component of the violence and amounted to genocide:
Indeed, rape and sexual violence certainly constitute infliction of serious
bodily and mental harm on the victims and are even, according to the

The research for this part of the paper is based on interviews I conducted with Tribunal staff in April–
May 2008, as well as on the published research of Binaifer Nowrojee, a human rights activist who has
worked as a consultant for the Tribunal as well as undertaking research on the experience of women who
testified at the Tribunal (see Nowrojee 2005b). I have left the interview material unaccredited in this
section because the items listed here were identified by multiple interview subjects and appeared as
almost a ‘consensus’ view among the Tribunal staff, both in the OtP and Registrar’s office.
See, e.g., Prosecutor v Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T (ICTR, Trial Chamber), 17
June 2004, at para 329, available at; Prosecutor v Juvenal Kajelijeli, Case
No. ICTR-98-44A-T (ICTR, Trial Chamber), 1 December 2003, at para 680, available at

Rethinking ‘Rape as a Weapon of War’ 153

Chamber, one of the worst ways of inflict harm (sic) on the victim as he or she
suffers both bodily and mental harm. In light of all the evidence before it, the
Chamber is satisfied that the acts of rape and sexual violence described above,
were committed solely against Tutsi women, many of whom were subjected to
the worst public humiliation, mutilated, and raped several times, often in
public, in the Bureau Communal premises or in other public places, and often
by more than one assailant.18
Other decisions, even where rape charges have not been before the Chamber,
have also noted the widespread existence of rape and sexual violence as part of the
genocidal violence. For example, in Barayagwiza et al.19—known as the Media
case—the Tribunal ruled that the sexualisation of Tutsi women was part of the
genocidal campaign against all Tutsi, and that, as a result of the media propaganda
orchestrated by the three defendants, ‘‘Tutsi women were often raped, tortured and
mutilated’’. In the joint trial of Clement Kayishema and Obed Ruzindana,20 the
Chamber referred to acts of rape, among other crimes, committed at roadblocks and
on a widespread basis, as part of the larger genocide committed against the Tutsi.
And in the ‘Military 1’ judgment,21 the Tribunal noted that the ‘‘case law has
shown’’ and ‘‘it is well known that rape and other forms of sexual violence were
widespread’’ in the genocide. The overall image presented in the body of the
Tribunal decisions is that rape of women was widespread and a part of the genocide
of the Tutsi. This finding confirms reports of human rights investigators (Des Forges
1999; Human Rights Watch 1996; African Rights 1995). But while the vast majority
of men who have appeared before the Tribunal have been convicted of some crime
related to the genocide (there have been five acquittals), the vast majority have not
been convicted of rape-related offences.

The Hyper-visibility and Un-visibility of Sexual Violence

The record of the Rwanda Tribunal, read as a whole, thus seems to pull in two
different directions. On the one hand, a significant number of judgments have
recognised, and treat almost as a fact, that women were raped in large numbers as
part of the genocide, and a few decisions have drawn attention to rape as part of the
overall violence targeting the Tutsi community. And yet, the rape of individual
women has been largely absent from the record of convictions.

Akayesu, supra n 11 at para. 731.
Prosecutor v Jean-Bosco Barayagwiza, Hassan Ngeze and Ferdinand Nahimana, Case No. ICTR-99-
52-T (ICTR, Trial Chamber), 3 December 2003, at paras 114 and 1079, available at
default.htm (accessed 25 July 2008).
Prosecutor v Clement Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T (ICTR, Trial
Chamber), 21 May 1999, at paras 294 and 547, available at
Prosecutor v The´oneste Bagasora, Gratien Kabiligi, Aloys Ntabakuze, Anatorle Nsengiyumva, Case
No. ICTR-98-41-T (ICTR, Trial Chamber), 18 December 2008, at para 1728, available at

154 D. E. Buss

Mibenge (2008) has written about a similar paradox in the visibility of rape in
post-genocide Rwanda and its limited political traction in securing legal or material
reparations. ‘‘The word rape’’, she writes ‘‘has become a powerful political word in
Rwanda. It is circulated actively and often graphically, in newspaper reports, radio
broadcasts, and social debates’’ (2008, p. 147). But, while rape is strikingly visible
in some respects, Mibenge found that stories of rape, when used to underpin
survivor demands for remedies such as reparations and health care, became
silenced. Rape, in Mibenge’s account, was heard and made available but only as a
discourse about ‘‘the bestiality of the Hutu extremists who masterminded and
committed the genocide’’ (2008, p. 147).
Mibenge’s analysis is a reminder that at certain times and in particular contexts,
wartime sexual violence against (some) women is given overt, even heightened
visibility. The Raped Woman has been a recurring subject of international law from
the time of Hugo Grotius, repeatedly evoked in efforts to regulate the ‘proper’
waging of war (Kinsella 2006). In Helen Kinsella’s analysis, the Raped Woman was
an important signifier in Grotius’ taxonomy distinguishing and ordering nations as
Christian, civilised or barbaric based, in part, on how they regulated, or not, the
sexual abuse of women. Feminist scholarship (Higgonet et al. 1987; Elshtain 1987;
Lant 1991; Seidel and Günther 1988) has mapped the propaganda value of rape
stories at various points in armed conflicts. In some conflicts, such as the 1971
Bengali war (Mookherjee 2006), or the more recent wars in Yugoslavia (Zarkov
2007), rape narratives were deployed in different ways to construct shifting
conceptions of national self-identity. And yet, despite the many visibilities of
wartime sexual violence, there is a sense, particularly among feminists, that
violence against women in wartime, just as in so-called ‘peacetime’, remains largely
invisible as a matter of political and legal urgency (see, for example, Nowrojee
The apparent paradox of wartime sexual violence that has heightened visibility in
some contexts and relative invisibility in others might be explained, at least in part,
by the selective mobilisation of rape narratives for nationalist propaganda reasons.
But I want to suggest that there might also be a relationship between rape that is
overtly visible and rendered paradigmatic, and rape and sexual violence that are, as
a consequence, un-seeable.
Sociologist Avery Gordon, in her wide-ranging work Ghostly Matters: Haunting
the Sociological Imagination (1997) considers hyper-visibility as one means by
which the mechanisms, indeed the very existence, of un-visibility are obscured. For
example, she cites Ralph Ellison’s Invisible Man as a comment on the excessive
visibility of black men in the United States that rendered them, paradoxically, un-
visible. If hyper-visibility is understood in Gordon’s terms as a ‘‘persistent alibi for
the mechanisms that render one un-visible’’ (1997, p. 17), what erasures does the
overt visibility of rape as an instrument of genocide enable?
Referring to rape as overt or ‘hyper’ visible may seem a strange, if not dangerous
move given the statistical outcome of the Rwanda Tribunal’s record on sexual
violence prosecutions set out above. But I want to suggest that, in some respects,
rape is ‘hyper’ or maybe merely ‘strikingly’ visible in the Tribunal’s work through
its repeated invocation as a generalised pattern of the genocide. The repeated

Rethinking ‘Rape as a Weapon of War’ 155

recognition of rape as an instrument of the genocide functions almost as a signifier

of atrocity. Its recognition by the Tribunal is important but, I suggest, may operate
to obscure the mechanisms by which individual accounts of rape and sexual
violence are made invisible.
Part of the process by which types of harms and categories of victims are
rendered invisible or un-seeable is through the act of defining and sorting crimes.
The legal categorisation of war crimes does more than merely recognise as criminal
different types of harm. It also provides a ‘‘grammar of pain’’ (Ross 2003, p. 1); a
language by which the Tribunal can identify, and witnesses can testify to, their
experiences of (legally recognised) harm (Ross 2003; Campbell 2007). As
categories of harm, rape as a crime against humanity and rape as genocide
structure not only which harms are recounted (and which are not), but also the
subjects who can speak to those harms.
The Rwanda Tribunal’s judgments—as a record of the Rwanda genocide—
produce their own narrative of harm and ‘‘grammar of pain’’ through which the
identities of victim and violator emerge. Rape understood as a weapon of genocide/
conflict/war positions rape as an inevitable—almost ‘natural’—part of conflicts seen
as ‘ethnic’ or ‘nationalist’. Conceiving rape as an instrument that ‘one side’ picks up
and uses against the ‘other side’ assumes that rape is always available as a weapon,
and that women exist as always raped or ‘‘inherently rapable’’ (Marcus 1992, p.
388). That is, rape follows from the very existence of conflicts understood as
occurring between two polarised ‘sides’.
Sharon Marcus, in her analysis of political and legal responses to rape within
Western societies, argues for an approach to sexual violence that sees it not as a
material fact of women’s lives, but as a language through which gender inequality is
defined, altered, and, potentially, contested. Marcus uses the term ‘‘rape script’’ to
refer to rape as a process made possible by, and in turn, scripting anew the terms of
gender inequality. The content of the rape script is clearly variable, she argues, and
determined by the ‘‘gendered grammar of violence, where grammar means the rules
and structures which assign people to positions within a script’’ (1992, p. 392).
The Tribunal’s recognition of rape as an instrument of genocide can be
understood, following Marcus’ lead, as constituting a gendered grammar of violence
where identities—male, female, Hutu, Tutsi—are placed into particular positions
within the script. Hutu men rape Tutsi women as a means to attack/destroy the Tutsi
community. This rape script—and the ways in which it naturalises rape as an always
available weapon of war—has two consequences for the types of harms and victims
that are seen and see-able. First, it reduces all rape and sexual violence to the
equation of Hutu (male) violence against Tutsi (feminised) victimisation. The
identities of Hutu, Tutsi, male and female are assumed to pre-exist the violence,
with the violence mapping onto and exploiting historical identities and ethnic
Second, rape as a modality of violence is treated as relatively uniform in practice
and experience. The emphasis is on shared patterns of violence (Tutsi women
attacked by Hutu men) and continuity of impact (destruction of a community) rather
than considering variances and exceptions. The result, as Fiona Ross has noted in
her analysis of narratives of gender harm in the South African Truth and

156 D. E. Buss

Reconciliation Commission, is that ‘‘the subject of violence is construed as naturally

gendered, and the sociological problem to be explained becomes women’s
experiences of violence, rather than violence and its links to gender and power’’
(2003, p. 25).
The Tribunal’s narrative of the rape script—where Hutu men raped Tutsi women
as a way to destroy the Tutsi community—while not inaccurate, provides a partial
account of the genocide and sexual violence. In the following discussion, I draw from
two individual stories of sexual violence and survival from the Rwanda genocide.
These stories, both gleaned from academic articles published by scholars of Rwanda,
are used to explore some of the complexities around who are seen as victims, how
their suffering is understood, the circumstances that shaped their experience of the
genocide, and the steps they took to survive. In examining these stories, my aim is not
to position them as a ‘truth’ different in kind, or better than the one found in the
Tribunal decisions. As first person narratives, the stories offer substantially more
detail about the genocide, individual experience, harm and suffering, than found in
Tribunal judgments. And this detail is important. These stories complicate the
seamlessness of a narrative of rape as an instrument of conflict where Tutsi women
are raped by Hutu men for the purposes of destroying/attacking the community. They
do not dispute this narrative, but rather point to a more complex array of factors that
shaped individual experiences of violence; the particular vulnerabilities and
resources that impacted an individuals’ chances of survival, the acts of courage
and resourcefulness of survivors and the myriad of people who helped them.


Seraphine (a pseudonym), is a Hutu woman interviewed by anthropologist Jennie

Burnet in 2000 in Kigali (Burnet 2009). In 1994, Seraphine was living in Kigali,
married to a Tutsi man and had four children. Within 24 hours of the start of the
genocide, Seraphine’s husband was called to a ‘meeting’ where he and other Tutsi
were taken away to be killed. He suffered deep heads wound but made his way back
home, where Seraphine hid him throughout the genocide. Seraphine encouraged
rumours about her husband’s death to ensure no one came looking for him. But
before long a Rwandan government soldier began imposing himself upon Seraphine
who felt unable to resist because of the vulnerability of herself and her family. At
the end of the war and genocide, Seraphine’s husband came out of hiding but never
fully regained his mental faculties. Seraphine has been unable to access funds as a
survivor of the genocide for several reasons: she is a Hutu, her husband did not die,
and because her neighbours saw the government soldier at her house, Seraphine is
rumoured to be an accomplice.


Béatrice, also a genocide survivor, told her story to journalist Lindsey Hilsum
(recounted in Pottier 2005), over several visits in the years immediately following
the genocide. Béatrice and her daughter and son (aged 10 and 6) were Tutsi, living
in the Muslim area of Kigali, having recently converted to Islam. Béatrice’s parents

Rethinking ‘Rape as a Weapon of War’ 157

were from Zaire (now the Democratic Republic of the Congo (DRC)) and Béatrice
had a Zairean identity card. Together with a neighbour, a Tutsi woman named
Laetitia (a pseudonym) and her baby, Béatrice and her children fled Kigali in the
early days of the genocide.
As the group made their way to Rwanda’s south-western border, they were
repeatedly stopped at check points and made to show their identity cards. Béatrice
altered Laetitia’s card to identify her as Hutu, but Laetitia was still raped at check
stops. Because Béatrice had a Zairean identity card she was often let go, but had to
pay substantial sums of bribery money from an amount given to her by her brothers.
Laetitia and her baby were not so lucky. Béatrice often paid for their survival, but
Laetitia was repeatedly raped, and it is likely that Béatrice was too (Pottier 2005,
p. 205).
Béatrice’s daughter, who was said to ‘look Tutsi’, was increasingly vulnerable at
the check points, so Béatrice’s Hutu friend, Mama Naima, took the son and daughter
as her own and the group parted company, meeting up again in Cyangugu. Béatrice
and her children survived the genocide and the interviews she gave were done from
Bujumbura, Burundi.
Neither Béatrice nor Seraphine’s stories are unusual. They share many similarities
with accounts found in the detailed studies of the genocide by African Rights (1995)
and des Forges (1999), among others (for example, Human Rights Watch 1996). For
my purposes, the experiences of Béatrice and Seraphine distill some of the complex
dynamics of the genocide particularly as they relate to identity. Both Béatrice and
Seraphine, in different ways, highlight the difficulty in talking about ethnic
categories as though they were always stable and absolute throughout the genocide.
Béatrice and Seraphine’s stories point to the significance of other aspects of social
location that shaped, along with ethnic identity, an individual’s vulnerability.
Scholars of Rwanda and the Great Lakes area (see, for example, Straus 2006;
Twagilimana 2003; Jefremovas 2002; Pottier 2002; Taylor 1999; Newbury 1998;
Uvin 1998; Prunier 1995) have written extensively about the complexity of the 1994
genocide, revealing the multiple political, economic, environmental, regional and
class configurations of the conflict that are often obscured by an exclusive focus on
ethnicity. These accounts document that while Rwandan society was categorised
along ethnic lines, a practice formalised and hierarchically ordered under Belgian
colonial rule, other social cleavages deepened in the 1980s and 1990s. In particular,
the Habyarimana government privileged northern communities at the expense of
southern areas of Rwanda. Regional identities, particularly in the south, became
more important in some contexts than ethnic ones (Twagilimana 2003).
The collapse of coffee prices, together with structural adjustment programs,
dispossessed many Rwandans, particularly young men, from farming and land-
owning potential (Uvin 1998; Jefremovas 2002). The war with the RPF, starting in
1990, also meant there were large numbers of internal Rwandan refugees living in
squalid conditions in camps, creating social hardship and conflict (Melvern 2000).
And the peace negotiations on-going between the RPF and the Habyarimana
government led to the proliferation of political parties and in turn, an accelerated
shift in the political landscape (Twagilimana 2003; Melvern 2000) with all the
uncertainties that go with rapid political change.

158 D. E. Buss

All these factors were important in creating the conditions for the genocide. And
all shaped, to varying degrees, conceptions of identity and social location. Ethnicity,
nonetheless, was the primary device by which most, but not all, individuals were
targeted for attack. The genocide, while certainly playing on pre-existing ethnic
identity, was instrumental in giving coherence to the ethnic categories ‘Hutu’ and
‘Tutsi’. Anthropologist Burnet (2008) explains:
Prior to the 1950s, ethnicity was not the primary way that Rwandans classified
each other. At that time, the term ubwoko, when referring to human beings,
meant the combination of a person’s attributes relevant to a given context. In
the 1960s, when asked, ‘‘Ubwoko bwawe n’ubuhe?—What is your type?’’ by a
foreign scholar, respondents spontaneously gave their clan and lineage name,
for example, ‘‘Abasinga Rumanzi.’’ In Rwanda today, however, the same
question ‘‘Ubwoko bwawe n’ubuhe?’’ is immediately interpreted as ‘‘What is
your ethnicity?’’ a taboo question under the RPF regime’s policy of national
unity [references omitted].
Thus, individuals targeted for attack may have been victimised for multiple
reasons. The stories of Béatrice and Seraphine give us some insight. Béatrice’s
experience of the genocide was shaped by a number of factors: her identity did not
strictly conform to the Tutsi category as it was then understood, her patrilineage
(Zairean) gave her some protection in some circumstances; she was a part of a
Muslim community in a largely Christian country; she had access to resources
(money and friends); she had assistance from Hutu friends and strangers; she was
tenacious and creative in fighting for her survival and that of her children and
friends; and she had good luck. But she also clearly suffered enormously, and died
in 1998. Seraphine, as with Béatrice, survived in part because of good luck, but as a
Hutu woman, even while married to a Tutsi, she was in a stronger position than
Béatrice. Seraphine benefited from her patrilineage through her father that defined
her, at least at some points in time, as ‘Hutu’. And, the government soldier who
assaulted her may also have protected her. But, like Béatrice, Seraphine owes her
survival largely to her ingenuity.
Neither Béatrice nor Seraphine fits the category of ‘Tutsi woman’. Béatrice’s
nationality—Zairean—was more significant to some of her would-be attackers than
her ‘Tutsi’ ethnicity. And Béatrice’s self-identity—as Muslim—generated impor-
tant connections with neighbours that were instrumental to her survival.
Seraphine, as a Hutu woman, stands outside the definition of genocidal rape
which extends only to Tutsi women raped by Hutu men. In the all-important
Akayesu decision, the Tribunal concluded that rape was ‘‘perpetrated against all
Tutsi women and solely against them.’’22 And in Kajelijeli, the dissenting judgment
noted that ‘‘rape and sexual violence were exclusively perpetrated against Tutsi
women (of which only some cases were reported to us) and were committed on
grounds of their ethnicity.’’23

Supra n 11 at para 732.
Supra n 17, dissenting opinion of Judge Arlette Ramaroson at para 97.

Rethinking ‘Rape as a Weapon of War’ 159

Yet, as Seraphine’s story confirms, Hutu women also were raped. Some Hutu
women were raped and killed in the early days of the genocide because of their
presumed political opposition to the Habyarimana government and/or extremist
Hutu elements (Human Rights Watch 1996, pp. 40–41). Hutu women married to
Tutsi men were also targeted for rape, as were Hutu women accused of helping
Tutsi to escape. But the violence surrounding the genocide made all women
irrespective of their ‘ethnic’ identity or political affiliation, vulnerable to rape
(Human Rights Watch 1996, p. 40).
Rape charged as an act of genocide, however, is limited to the rape of Tutsi
women.24 To the extent that subsequent Tribunal decisions have recognised that
Hutu women also were raped, they tend to characterise those rapes as resulting from
the women’s marriage to a Tutsi man (for a discussion, see Buss 2007). Seraphine
could, arguably, fall into this category, but it is difficult to know what made her
more vulnerable to rape: her Tutsi husband, or that she was alone without a male
relative. Either is likely.
And just as Hutu women are hard to see as victims of the genocide, so too are
men subjected to rape and sexual violence. No one has been indicted or tried for
sexual violence against men during the genocide, though there is at least one
Tribunal decision referring to an act of sexual violence against a man. Mikaeli
Muhimana was found guilty of killing a Tutsi business man named Kabanda. The
evidence of multiple witnesses was that Kabanda was also castrated and ‘‘his private
parts’’ placed on display.25 This evidence was not discussed by the Tribunal in its
determinations26 and Muhimana was convicted only of killing Kabanda. He was
also found guilty of other charges including rape (of women) as crimes against
Although not prosecuted by the Tribunal, there is evidence that sexual violence
including rape and forms of sexual slavery against men was a feature of the
genocide.27 Susan Thompson, in her capacity as a human rights investigator, was
present in the Ngara Camp in Western Tanzania where Hutu and some Tutsi
Rwandans fled after the RPF successfully invaded Rwanda in July 1994, bringing an
end to the genocide. During her visits to the camp between July 1996 and April
1997, Thompson learned of sexual violence against both Tutsi and Hutu men. The
Hutu men had been assaulted in intra-Hutu violence as a ‘‘device to humiliate and
shame men who were not willing to join in the killing.’’28
Both the examples of Hutu women and Hutu and Tutsi men subjected to sexual
violence reveal the exclusions that are cast in the shadows by the glare of ‘rape as an
The rape of Hutu women could only be prosecuted as a crime against humanity if it could be shown
the rape of the Hutu woman constituted or was part of the attack against the Tutsi population: see
Gacumbitsi, supra n 17. Under Article 4 of the ICTR statute, rape of Hutu women could be prosecuted as
a war crime, though this is generally seen as a less significant category of crime than genocide or crimes
against humanity.
Supra n 8 at paras 441–444.
Ibid at paras 448–450.
Interview by author with Florida Kabasinga, Assistant Appeals Counsel, ICTR, 6 May 2008, in Arusha
Tanzania (see also Melvern 2000, p. 186).
Email correspondence from Susan Thompson to author, 27 July 2008, on file with author.

160 D. E. Buss

instrument of the genocide’. Against the successful recognition of genocidal rape it

is hard to see and ask questions about forms of sexual violence, and types of victims,
not being recognised. The rape script that explains the mass rape of Tutsi women as
the gendered component of a genocide against the Tutsi people almost requires the
erasure of raped men and Hutu women who undermine the narrative coherence of
the script.


Béatrice and Seraphine’s stories provide a partial introduction to the multiple

dimensions of the acts perpetrated and harms suffered in the 1994 Rwandan
genocide. Neither story, on its own, is emblematic of what happened in 1994. In this
paper, I have placed these two stories in tension with what I see as the homogenising
narrative of rape as an instrument of the genocide.
I suggested at the outset of this paper that rape ‘as an instrument of the genocide’
has certain ontological and epistemological effects. First and foremost, this
instrumentalist narrative of rape establishes the Raped Tutsi Woman as ‘the’ victim
subject of sexual violence. While many Tutsi women in Rwanda were raped and
their rapes were instrumental to the genocide, in the Tribunal’s depiction the Raped
Tutsi Woman becomes definitive of all raped women. Other categories of victim—
Hutu women, for example—become much harder to see and, in the case of male
victims of rape, almost impossible to see.
This categorisation (and limitation) of the types of victims, and the forms of harm
that are understood to be part of the genocide, impacts on what can be known about
sexual violence and its role in the genocide. All sexual violence is reduced to the
equation of ‘Hutu men who raped Tutsi women as a means to destroy the Tutsi
community’. As I argued above, this equation, while not inaccurate, does not reflect
the full complexity of why and how sexual violence was a part of the genocide. It
also removes from consideration the range of social, political and economic
structures that determined why some women were particularly vulnerable to attack.
The overall effect of ‘rape as an instrument of the genocide’ limits the types of
questions that are asked about sexual violence and about the nature of the violence
surrounding the genocide. ‘Rape as an instrument of the genocide’ leads away from
questions about why rape (or other modalities of violence) happened. Violence is
understood exclusively as the product of an inter-ethnic conflict rather than
considering how other social, political and economic structures shaped the violence
and genocide.
In suggesting that ‘rape as an instrument of the genocide’ offers a partial account
of the victims of the genocide and forms of genocidal violence, I do not want to
over-state my argument. I am not saying that recognising the instrumental function
of rape in war is necessarily going to have these limiting consequences. Feminist
analyses of rape as a weapon of war, discussed above, were an attempt to
contextualise rape within the range of social and political structures that shape war
and conflict. But, in the Tribunal’s usage, ‘rape as an instrument of the genocide’—
and this holds true for Tribunal rulings on rape as a crime against humanity—is

Rethinking ‘Rape as a Weapon of War’ 161

depicted as an almost inevitable outcome of violence enacted by one ‘side’ against

another. And rape is depicted in broad-brushed, undifferentiated terms.
This focus on the generalised pattern of rape, I have argued in this paper, can lead
to a problematic homogenisation in which wartime rape is treated as seemingly
inevitable. An alternative approach can be found, I suggest through a focus on
‘‘what actually happens during rape situations’’ (Marcus 1992, p. 389). Seraphine
and Béatrice’s stories for example, highlight the multiple factors that exposed them
to violence, and the courageous steps they took to resist rape and death. It is at this
level of detail, with all the inconsistencies and complexities revealed, that it
becomes possible to imagine a situation where rape is not inevitable.

Acknowledgments My thanks to Christiane Wilke, Chiseche Mibenge, Diana Majury and the two
anonymous reviewers for their very helpful comments and suggestions. My particular thanks to Erin
Stevens for her excellent research assistance and comment on drafts of this article and Brittany Sheridan
for her assistance. Earlier versions were presented at conferences at The Netherlands Defence Academy/
Emory University and Keele University, UK and I benefited from comments and feedback at those events.
Research for this paper was funded by the Social Sciences and Humanities Research Council of Canada,
and Carleton University.


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