De Brouwer argues that the definition of genocide is aimed primarily at protecting the listed groups mentioned under it.134 She also argues that the victim of the crime of
130
See AMLM De Brouwer op cit note 43 at 70. 131
IT-01-50-I, 8 October 2001(Indictment). (Hereinafter referred to as the Milosevic indictment). 132
Para. 8. 133
See also 2.1 above where I specifically analyse the protected groups covered by the definition of genocide.
genocide is the group and not just the individual who belongs to the protected group.135 To truly understand the nature of the crime of genocide, a slightly different structure of words needs to be used, than this of De Brouwer. Genocide is aimed at protecting members of the groups mentioned in the definition and therefore the victim of a genocide must be a member of one the groups mentioned. It should be understood from the premises that the group’s existence is solely dependent on its members and not vice versa.
As far as sexual violence is concerned, the ICTR in the Akayesu judgment stated that these acts were done with the intent to destroy the Tutsi group.
“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.”136
In other words, by committing rape against one person, the perpetrator had the intention to destroy the whole group. Quigley thus rightly argues that:
“In the context of rape as committed in Rwanda, it has been suggested that those who promoted the widespread rape of Tutsi women did so with the understanding that it would tear Tutsi society apart. As known to the Hutus, Tutsi men were likely to reject Tutsi women who had been raped. Tutsi girls would be ineligible for marriage. Tutsi married women might be divorced. Many of the rape victims would contract [HIV] AIDS. Raping Tutsi women in large numbers would make it difficult for Tutsis to continue their social existence.”137
Therefore a mere understanding that the group would be destroyed constituted an intention on the part of the perpetrator. The crimes thus committed must be done by
134
See AMLM De Brouwer op cit note 43 at 72. 135
Ibid. 136
Para. 731. 137
See J Quigley op cit note 10 at 107.
keeping the destruction of the group in the back of the mind by the perpetrator. In the case of The Prosecutor v Rutaganda,138 the court stated that:
“The victims were systematically selected because they belonged to the Tutsi group and for the very fact that they belonged to the said group. As a result, the Chamber is satisfied beyond any reasonable doubt that, at the time of commission of all the above-mentioned acts which in its opinion are proved, the Accused had indeed the intent to destroy the Tutsi group as such.”139
A way to establish whether the accused had the intention to destroy a listed group is by assessing his or her victims. If the victims of the accused all belonged to one group, then it can be understood to mean that he had the intention to destroy that group.
Thus in the case of where sexual violence is concerned, two elements need to take place in order to establish whether the perpetrator committed genocide. Firstly, an objective element, which is the rape or sexual violation of a victim. Secondly, a subjective element is required, being the intention to destroy the group to which the victim belongs.
Although the five acts of genocide are considered as methods to destroy a protected group, the intention to destroy a group goes beyond these methods. Quigley writes of the elimination of the group’s ability to function on the basis of its “customs and traditions”.140 In the Karadzic and Mladic rule 61 judgment, the ICTY suggested that the indictment be broadened to include the following:
“the specific nature of some of the means used to achieve the objective of “ethnic cleansing” tends to underscore that the perpetration of the acts is designed to reach the very foundations of the group or what is considered as such. The systematic rape of
138
ICTR 96-3-T, 6 December 1999. (Hereinafter referred to as the Rutaganda judgment). 139
Para. 399. 140
See J Quigley op cit note 10 at 103.
women, to which material submitted to the Trial Chamber attests, is in some cases intended to transmit a new ethnic identity to the child. In other cases, humiliation and terror serve to dismember the group. The destruction of mosques or Catholic churches is designed to annihilate the centuries-long presence of the group or groups; the destruction of the libraries is intended to annihilate a culture which was enriched through the participation of the various national components of the population.”141
In other words, apart from just committing the physical acts as mentioned in the definition of genocide, the ICTY drew an inference from the destruction of religious buildings and libraries as a possible intention to destroy a group. It should be remembered that these buildings must have been essential in the existence of one of the protected groups mentioned. Quigley thus rightly argues that the destruction of cultural objectives may provide evidence that such acts were done with intent to destroy the group.