Rape and sexual violence as genocide

The definition of the crime of genocide – e.g. Article 2 of the ICTR Statute, Article 4 ICTY Statute – did not include specific references to rape and other forms of sexual violence and simply followed the definition of genocide contained in the 1948 Genocide Convention verbatim. For recognizing sexual violence as genocide, the 1998 ICTR Akayesu judgement was an enormous breakthrough in international criminal law. For the very first time in international criminal law, it was explicitly recognized in this verdict that rape and sexual violence can constitute genocide in the same way as any other act, provided that the criteria for the crime of genocide are met. Thus, absent explicit enumeration of rape and sexual violence among the genocidal acts, these crimes can be charged under any of the five acts, most notably paragraphs (b) (“causing serious bodily or mental harm to members of the group”), (c) (“deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”) and (d) (“imposing measures intended to prevent births within the group”). In addition, for rape and sexual violence to qualify as genocide, as for any crime, a specific intent to destroy a particular group needs to be established. The Trial Chamber in Akayesu held that:

“the acts of rape and sexual violence (…), 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 public 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.” (para. 731)

With this judgement, it was for once and for all recognized that not only killings could constitute genocide, as was until then commonly assumed, but that genocide could also be committed through the acts of rape and other forms of sexual violence. Thus, the consequences of sexual violence – physical, mental, children born from rape, social, economic – may well have the effect of contributing significantly to the destruction of a group in whole or in part. Sexual violence is a way to destroy people’s attachment to their identity; it is a way to destroy people in an intimate way, to shatter the group.

The Akayesu recognition of rape and other forms of sexual violence to constitute genocide directly inspired the ICC’s interpretation of the definition of genocide. Although the Rome Statute similarly includes the exact definition of genocide as can be found in the 1948 Genocide Convention, the ICC’s Elements of Crimes do refer to rape and sexual violence in a footnote (which has the same standing as an element), explaining that these crimes fall within the ambit of sub-heading (b) of the crime of genocide, namely “causing serious bodily or mental harm to members of the group”. This has been an enormously important legacy of the ICTR.