Legal analysis on the crime of rape under ICTR jurisdiction

I.3.4. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part

In Akayezu case, the court held that deliberately inflicting conditions of life calculated to bring about its physical destruction in whole or in part, should be constructed as the methods of destruction by which the perpetrator does not immediately kill the members of the group, but which ultimately seek their physical destruction.^27(*)

I.3.5. Imposing measures intended to prevent births within the group

The act of genocide of imposing measures intended to prevent births within the group has been clarified also in Jean Paul Akayezu judgment where the court held that such measures may include sexual mutilation, the practice of sterilization, forced birth control, and separation of sex and prohibition of marriage.^28(*)

The Trial chamber stated also that in patriarchal societies, where membership of the group is determined by the identity of the father, as example of a measure intended to prevent births within a group, is the case where during rape a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her birth to a child who will consequently not belong to its mother's group.^29(*) Finally, in Akayezu case, the court noted that measures intended to prevent birth within group may be physical but they can also mental.^30(*)

I.3.6. Rape as crime against humanity

Rape is provided also as a crime against humanity under article 3 (g) of the ICTR statute. It has been held by the ICTR in Akayezu case to be a form of aggression whose central elements cannot be captured in a mechanical description of objects and body parts.

The conceptual framework is used to define rape by recognizing that the essential elements of rape are not the particular details of the body parts and the objects involved, but rather the aggression that is the expressed in a sexual manner under conditions of coercion. Rape is thus defined as a physical invasion of a sexual nature committed on a person under circumstances which are coercive; it may or may not involve sexual intercourse.

Coercive circumstances need not be evidenced by a show of physical force; threats, intimidation, extortion, and other form of duress which prey on fear or desperation may be coercion. Besides coercion may be inherent in certain situations, such as armed conflict, in which the victim finds herself or himself. While rape and sexual violence are committed on a person under coercive circumstances, rape is distinguishable from other forms of sexual violence in that the body of another person. Thrusting a piece of wood into the sexual organ of a woman as she lies dying is rape. Forced penetration of the mouth which is a humiliating and degrading attack on human dignity can be considered rape.^31(*)

I.3.7. Sexual Violence as a War Crime

International humanitarian law explicitly and implicitly condemns rape and other forms of sexual violence as war crimes. The Geneva Conventions of August 12^th 1949 and the Protocols Additional to the Geneva Conventions prohibit rape in both international and internal conflicts.^32(*) In internal conflicts, such as that which occurred in Rwanda, common article 3 of the Geneva Conventions prohibits violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture as well as outrages upon personal dignity, in particular humiliating and degrading treatment." Protocol II Additional to the Geneva Conventions, which also governs certain internal armed conflicts and which applies to the conflict in Rwanda, expressly forbids violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation" and "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault," as well as "slavery and the slave trade in all their forms.^33(*)"

* ²⁷ Prosecutor v. Akayezu, op, cit., para 115,157

* ²⁸ Ibidem

* ²⁹Ibidem.

* ³⁰ Ibidem.

* ³¹ KRIANGSAK K., International criminal law, Oxford University Press Inc., New York, 2001, p.112.

* ³² Theodor Meron, "Rape as a Crime Under International Humanitarian Law," American Journal of International Law (Washington, D.C.), vol. 87, July 1993, p. 426,

* ³³ Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature December 12, 1977, Article 4