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It was not until 1998 that it became clear that rape could constitute genocide in international law. Even though rape was not mentioned in the 1948 United Nations Genocide Convention, the International Criminal Tribunal for Rwanda found that widespread and systematic rape could be used to destroy an ethnic group.
 

Rape was not specifically mentioned in the 1948 United Nations Genocide Convention. Genocide involved a number of acts carried out with the intent to destroy a national, racial, ethnic or religious group “in whole or in part.” While such acts as imposing measures intended to prevent births were listed in the Convention, rape, as such, was not.

However, things changed in 1998 when the International Criminal Tribunal for Rwanda handed down its decision in Prosecutor v. Akayesu.

How Rape Became an Act of Genocide

What became the most important case for prosecuting rape as an international crime did not initially include rape in the indictment. The ICTR was set up to try crimes associated with the 1994 Rwandan genocide. Jean-Paul Akayesu, a mayor of Taba, Rwanda was indicted on a number of counts of genocide, crimes against humanity and violations of the Geneva Convention. During the trial, a witness's testimony prompted the prosecutor to ask for a leave of court in order to further investigate the crimes being described and, if need be, amend the indictment. The court granted the request and further evidence came to light.

Witness after witness testified and a brutal picture emerged of widespread and systematic rape and sexual violence. While rape was not a stand-alone crime under the ICTR statute, it could be defined to constitute genocide. In other words, rape could be prosecuted because it was used to carry out genocide so long as the intent was to destroy the target ethnic group.

Rape and Acts of Genocide

There are several acts that can constitute genocide listed in the Genocide Convention. The ICTR explicitly linked rape to these acts to make clear how genocide could be accomplished through rape.

  • Inflicting serious harm. The Genocide Convention lists causing serious bodily or mental harm as a potentially genocidal act. The ICTR stated that, “[R]ape 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 inflicting harm on the victim....”
  • Conditions calculated to bring about physical destruction. Women are often the key link to the cultural and physical continuity of a group. Raped women are often outcast and so the mass rape of a group's women destroys bonds that hold the group together. As one writer put it, “Raping women in a community can be seen as raping the body of the community.”
  • Preventing births. Rwandan survivors told stories of sexual mutilation and violent rape that left survivors sterile and physically unable to engage in intercourse. The Tribunal found that “sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes, and prohibition of marriages” could be construed as measures to prevent births within the target ethnic group. Also, if raped women subsequently refuse to have children because of their trauma, the crime is genocidal.
  • Forcibly transferring children from one group to another group. The court also found that in patriarchal societies, where membership of a group is determined by the identity of the father, forced pregnancy through rape can constitute genocide when the intent is for the victim to “give birth to a child who will consequently not belong to its mother's group.”

The mass rapes of Tutsi women resulted not only in the physical and psychological destruction of the women, but, according to the court, their families and communities as well. The sexual violence was “an integral part of the process of destruction.”

Bottom Line

The first case in international law to explicitly tie rape to genocide was decided in 1998 by the ICTR. Because of the judgment in the Akayesu case, rape and sexual assault could be prosecuted as genocide so long as the intent of the perpetrators was to destroy the target group in whole or in part. The Tribunal made it clear for the first time that genocide could be accomplished through rape.

 
Data and Methods:

Data Sources:

Analysis of legal doctrine and jurisprudence.

Funding Sources:

Not reported.

 
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Reference

Ellis, Mark. 2007. "Breaking the Silence: Rape as an International Crime." Case W. Res. J. Int'l L. 38:225-247.

 
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