Prosecuting International Crimes in Africa - PULP - University of ...

The contribution of the International Criminal Tribunal for Rwanda 67
existence by their possession of a particular group identity, and not abstract
groups, or groups entirely defined by subjective criteria. 18 Subjective
criteria include, for instance, a situation where a group is entirely defined
or identified by the perceptions of the perpetrator of the crime of genocide.
The ICTR also elucidated the definitions and scope of the physical and
mental elements of the crime of genocide. Its jurisprudence is particularly
noteworthy with respect to the physical elements (actus reus) of the crime
that are generally worded. These include causing serious bodily or mental
harm to members of the group, deliberately inflicting on the group
conditions of life calculated to bring about the group’s destruction and
imposing measures intended to prevent births within the group. The ICTR
has taken the position that several criminal acts are encompassed in these
physical elements of genocide, one of which is rape. 19 The Tribunal’s
elucidation of rape and sexual violence as acts of rape are discussed below.
Finally, the ICTR may be credited for its elaboration of the
psychological element of the crime of genocide in international law. The
ICTR’s jurisprudence establishes that to be guilty of the crime, any of the
enumerated physical acts (actus reus, eg killing members of the group) must
be perpetrated with specific intent to destroy a group in whole or in part.
In other words, in addition to intending that the actus reus occurs, the
accused must also intend to destroy the group in whole or in part. As
explained by Akayesu, special or specific intent are required for the crime of
genocide, 20
[i]s the specific intention, required as a constitutive element of the crime,
which demands that the perpetrator clearly seeks to produce the acts charged.
Thus, the special intent in the crime of genocide lies in the intent to destroy, in
whole or in part, a national, ethnical, racial or religious group as such.
Proof of the specific intent of genocide is a complex task, given that
perpetrators will rarely plead guilty to the crime and explain their mental
orientation to the court. Through its jurisprudence, the ICTR has
explained that establishing specific intent of genocide requires the
examination of a totality of factors and circumstances. These include the
general context, the general political doctrine which gave rise to the acts,
the methodical way of planning, the perpetration of other culpable acts
systematically directed against the same group, the scale of the atrocities
perpetrated or the number of victims affected, the systematic manner of the
killings or targeting of victims on account of their membership of a
18 Prosecutor v Stakić (Case IT-97-24-A) Judgment paras 20-28.
19 Mugwanya (n 8 above) 115-121.
20 Prosecutor v Akayesu para 498.