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

68 Chapter 3
particular group, the repetition of destructive or discriminatory acts, and
the use of derogatory language towards the targeted group. 21
3 Rape and sexual violence as genocide
In the Akayesu judgment, for the first time in international law, an
international court construed and applied the crimes of rape and sexual
violence in an international context, finding that rape and sexual violence
can constitute acts of genocide. Therefore, when committed with specific
intent to destroy a group in whole or in part, rape and sexual violence
constitute genocide. 22 The initial indictment against Akayesu had not
charged rape and sexual violence, but during the early stages of the trial
many witnesses recounted acts of rape and sexual violence. The Judges
permitted an amendment to the indictment to add a count of a crime
against humanity (rape). The amendment alleged that Tutsi women, who
had sought refuge at the Bureau Communal, were repeatedly subjected to
sexual violence, and that Akayesu knew and encouraged these acts of
sexual violence. The evidence adduced in support of these allegations was
overwhelming.
In addition to finding Akayesu culpable for rape as a crime against
humanity, the Trial Chamber, of its own accord, made an important
pronouncement, namely, that the same acts of rape and sexual violence
underpinning crimes against humanity also constituted genocide. Article 2
of the ICTR Statute, like the Genocide Convention, does not expressly
identify rape and sexual violence as acts of genocide, but includes two
important actus reuses, namely, ‘imposing measures intended to prevent
births within a group’ and ‘deliberately inflicting on the group conditions
of life calculated to bring about its physical destruction’.
In the Chamber’s view, rape and sexual violence met the above two
requirements or forms of actus reus of genocide. With respect to
‘deliberately inflicting on the group measures intended to bring about its
physical destruction’, the Chamber observed as follows: 23
21 Prosecutor v Akayesu para 523; Prosecutor v Kayishema and Ruzindana para 93; Prosecutor v
Musema para 166; Prosecutor v Kayishema and Ruzindana (Case ICTR-95-1-A) Judgment
(Reasons) 1 June 2001 para 159; Prosecutor v Rutaganda Case (ICTR-96-3-A) Judgment,
26 May 2003 para 525. For the ICTY see Prosecutor v Kristić (Case IT-98-33-A) Appeals
Judgment, 19 April 2004 para 34; Prosecutor v Jelišić (Case IT-95-10-A) Judgment 5 July
2001 para 47. For a critique of the ICTR’s position to specific intent (which has been
described as the ‘purpose-based approach to individual genocidal intent) see generally
C Kress ‘The Darfur Report and genocidal intent’ (2005) Journal of International
Criminal Justice 562-570; Greewalt, ‘Rethinking genocidal intent: The case of a
knowledge-based interpretation’ (1999) Columbia Law Review 2259, 2288 (advocating for
a knowledge-based approach); Mugwanya (n 8 above) 158-159.
22
Prosecutor v Akayesu para 731.
23 Prosecutor v Akeyesu para 731.