Article 6(b) Genocide by inflicting serious bodily or mental harm.

As a matter of customary law, already codified in this statute, rape and other forms of sexual violence are recognized as inflicting serious mental or physical harm on the victim and, in many situations as torture. In the Akayesu case, the ICTR interpreted serious bodily or mental harm "without limiting itself thereto, to mean acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution." (para. 504). The role of rape and sexual violence was identified as the infliction of serious bodily and mental harm as follows:

731. . . .Indeed, rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims and are even, according to the Chamber, one of the worst ways of inflict[ing] harm on the victim as he or she suffers both bodily and mental harm. (para. 731). 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 places, and often by more than one assailant. These rapes 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 specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.

Article 6(c)--Genocide by inflicting conditions of life calculated to bring about the physical destruction of the group.

The Akayesu decision interpreted this subsection to include methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction. (para. 505). In applying this subsection, the ICTR recognized that rape and sexual violence—with its combination of physical and psychological harm-- were inflicted on Tutsi women to destroy the spirit as a means of bringing about the physical destruction of the group:

732. The rape of Tutsi women was systematic and was perpetrated against all Tutsi women and solely against them. A Tutsi woman, married to a Hutu, testified before the Chamber that she was not raped because her ethnic background was unknown. As part of the propaganda campaign geared to mobilizing the Hutu against the Tutsi, the Tutsi women were presented as sexual objects. Indeed, the Chamber was told, for example, that before being raped and killed, Alexia, who was the wife of the Professor Ntereye, and her two nieces, were forced by the Interahamwe to undress and ordered to run and do exercises "in order to display the thighs of Tutsi women." The Interahamwe who raped Alexia said, as he threw her on the ground and got on top of her, "let us now see what the vagina of a Tutsi woman takes like." As stated above, Akayesu himself, speaking to the Interahamwe who were committing the rapes, said to them: "don't ever ask again what a Tutsi woman tastes like." This sexualized representation of ethnic identity graphically illustrates that Tutsi women were subjected to sexual violence because they were Tutsi. Sexual violence was a step in the process of destruction of the Tutsi group—destruction of the spirit, of the will to live, and of life itself.

The opinion provides numerous examples of testimony demonstrating how the experience of rape and sexual violence are calculated to break the will to survive. For example, the ICTR recounted the testimony of a witness (and those who testify are among the strongest survivors) who could not count the total number of times she was raped and felt “near dead.” (para 421.) Others beg their assailants to kill rather than rape them. (para 430, 438). This evidence is particularly relevant to genocidal acts in 6(a) and (c).

Article 6(d) --Imposing measures intended to prevent births.

In Akayesu, the ICTR also recognized the various ways that sexual violence is intended to prevent births within the targeted group:

507. For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an 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 give birth to a child who will consequently not belong to its mother's group.

508. Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led through threats or trauma, not to procreate.

Thus, the crime of forced pregnancy recognized in the ICC Statute can frequently be an instrument of genocide. Conversely, the effort to prevent births is exemplified in the Akayesu decision in a number of other ways: One witness who miscarried as a result of being beaten testified that the assailant said, “When rats are killed, you don’t spare rats that are still in the form of fetus.” (para. 428) Another witness observed the rape of a pregnant woman which forced the victim into premature labor before she died. (para 437). We note as well that the trauma and extreme stigma affecting women who have suffered sexual violence may render them pariahs, ineligible to procreate in their communities.

Article 6(e)--Forcibly transferring children of the group.

Here, the ICTR wrote:

509. With respect to forcibly transferring children of the group to another group, the Chamber is of the opinion that, as in the case of measures intended to prevent births, the objective is not only to sanction a direct act of forcible physical transfer, but also to sanction acts o[r] threats or trauma which would lead to the forcible transfer of children from one group to another.