Forcibly transferring children [just like all the other actus reus of genocide] should be done with the intention of destroying a group’s existence.85 Transferring children thus should be done with intending that the children adopt the identity of the group to whom they are being transferred.86 Werle goes further and states that the transfer of the children must be forcible, which can be either psychological or physical, because this ground requires it.87 The core intention behind this actus reus is to prevent the group’s children from adopting the opposing group’s identity and practices, at the cost of their original group being destroyed. Therefore, forcibly transferring children or just peacefully transferring children does not strike the core intention behind this actus reus. The fact that the accused did not forcibly transfer children should not thus serve as a defence against this actus reus.
In the Akayesu judgment, the ICTR held that “the objective is not only to sanction a direct act of forcible transfer, but also to sanction acts of threats or trauma which would lead to the forcible transfer of children from one group to another”.88 The ICTR also adopted a
84
See AMLM De Brouwer op cit note 43 at 59. 85
See G Werle op cit note 22 at 203. 86 Ibid. 87 Ibid. 88 Para. 509.
purposive interpretation to this actus reus by stating that the term ‘forcible’ is not restricted to physical force, but can include threat or coercion.89 Therefore apart from non-forcible measures being used to transfer children, the ICTR also progressively stated that a threatened or a coerced transfer would give purpose to this actus reus.
De Brouwer argues that an example of rape or sexual violence under this ground would be, where a girl is abducted to serve as a sex slave or ‘wife’ for the soldiers, with the intention that the offspring of this ‘relationship’ belongs to the man’s group.90 Based on such an example, the prosecution would not only be limited to bringing such a case under this actus reus, but also the actus reus of causing serious bodily or mental harm to members of another group.
Thus far no charge for sexual violence has been laid under this actus reus.
2.3 The mental element of the crime of genocide
The mental element for the crime of genocide is essentially what causes this crime to be known as the ‘crime of all crimes’. The definition of genocide states “… intent to destroy, in whole or in part…”91 therefore, the mental element requires that the accused must have acted with intention. The mental element of genocide requires that the accused posses
89
Ibid. 90
See AMLM De Brouwer op cit note 43 at 60. 91
See article 2 of the Genocide Convention.
‘intent and knowledge’92 and the intention must be in the form of dolus specialis.93 The intention for genocide differs from other crimes, as for other crimes intention in the forms of dolus directus94 or dolus indirectus95 or dolus eventualis96 or dolus indeterminatus97 is required. The reason for a standard of dolus specialis for genocide can be attributed to the fact that genocide constitutes the crime of all crimes. The perpetrator must have special intention to annihilate a group mentioned under the definition of genocide.
This part of the chapter will examine the intention required to commit genocide and how this will have an influence on sexual violence committed as a form of genocide. It should be noted that a distinction has to be drawn between the intention needed to destroy a protected group and the mens rea needed to commit one of the five physical acts under the genocide definition.
92
Intent and knowledge is only required in terms of article 30 of the ICC statute. 93
See G Werle op cit note 22 at 207. The following terms are synonymous for dolus specialis and I intend to use them interchangeably: ‘special intention’, ‘specific intention’ and ‘genocidal intention’. See Bettina Ulrike Schaefer Genocidal Intent at the ICTR and ICTY – Problems to Indict for Genocide at the two ad
hoc Tribunals (2006) 13: “Dolus specialis requires that the accused clearly intends that the result happens,
implying that there is a psychological link between the physical result and the mental state of the accused”. 94
See Jonathan Burchell Principles of Criminal Law (2005) 461: “This type of intention will be present where the accused’s aim and object was to perpetrate the unlawful conduct or to cause the consequence even though the chance of it resulting was small”.
95
Ibid: “This form of intention exists where, although the unlawful conduct or consequence was not the accused’s aim and object he or she foresaw the unlawful conduct or consequence as certain, or as substantially certain, or virtually certain”.
96
See J Burchell op cit note 94 at 462: “This form of intention exists where the accused does not ‘mean’ to bring about the unlawful circumstance or to cause the unlawful consequence which follows from his or her conduct, bur foresees the possibility of the circumstance existing or the consequence ensuing and proceeds with his or her conduct”.
97
See J Burchell op cit note 94 at 463: “Where a person throws a bomb into a crowd or derails a train, the fact that he has no particular intention to kill a particular individual in the crowd or upon the train does not mean that he lacks intention. Since he knows or foresees that someone will die he has what is called ‘general’ intention or dolus indeterminatus. Dolus directus, indirectus or eventualis may be general or indeterminate intention”.