Sexual violence as a constituent element of genocide

Sexual violence as a constituent element of genocide

Under certain conditions, acts of sexual violence can also be the means of committing the international crime of genocide. As defined in the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), this crime constitutes certain acts 'committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such'. There is no specific reference to rape or other sexual violence. The acts that are proscribed include killing members of the group, causing serious bodily or mental harm, imposing measures intended to prevent births within the group, forcibly transferring its children to another group, or deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part. The Genocide Convention is reflected in the Rome Statute.¹⁴

The aim of the Genocide Convention is to prevent and punish those persons who act upon their hatred of a particular group by physically harming the group members, with a view to ultimately eradicating them. When sexual violence occurs in the context of a genocidal attack, it is a manifestation of the same hatred towards members of the group that motivates other physically harmful acts. Therefore it is artificial to separate acts of sexual violence from the other genocidal acts.¹⁵

The ICTR decision in Prosecutor v. Akayesu issued on 2 September 1998, recognized for the first time that acts of sexual violence can be prosecuted as constituent elements of a genocidal campaign.¹⁶ Jean-Paul Akayesu, then Mayor of Taba commune, was charged with genocide, crimes against humanity, and war crimes and with having known that acts of sexual violence were being committed and having facilitated the commission of such acts by permitting them to be carried out on the commune's premises. He was also charged with being present during the commission of crimes of sexual violence and thus of encouraging these crimes. The court pronounced that the crimes of sexual violence committed in the Taba commune and throughout Rwanda constituted acts of genocide.

The Trial Chamber was persuaded that the sexual violence was accompanied by the specific intent required for the crime of genocide. The intent was evident in particular from the fact that many rapes were perpetrated near mass graves, and; that statements were made that the women being taken away would be collected later for execution.¹⁷

The Trial Chamber also considered the meaning of the phrase 'imposing measures intended to prevent births within the group'. Particular attention was given to various acts of sexual violence, such as sexual mutilation, sterilization, forced birth control, and deliberate impregnation. Furthermore, rape was found to be a measure that, due to the mental harm inflicted, may be imposed to prevent births within a group.¹⁸