CR 2006/7 (translation) CR 2006/7 (traduction) Thursday 2 March 2006 at 3 p.m. Jeudi 2 mars 2006 à 15 heures

Please download to get full document.

View again

of 20
76 views
PDF
All materials on our website are shared by users. If you have any questions about copyright issues, please report us to resolve them. We are always happy to assist you.
Document Description
BHY CR 2006/7 (translation) CR 2006/7 (traduction) Thursday 2 March 2006 at 3 p.m. Jeudi 2 mars 2006 à 15 heures The PRESIDENT: Please be seated. Ms STERN: Madam President, Members of the Court,
Document Share
Documents Related
Document Transcript
BHY CR 2006/7 (translation) CR 2006/7 (traduction) Thursday 2 March 2006 at 3 p.m. Jeudi 2 mars 2006 à 15 heures The PRESIDENT: Please be seated. Ms STERN: Madam President, Members of the Court, having this morning set out the facts regarding rape and sexual violence, I shall now begin the second part of my presentation and show the Court that rape and sexual violence are acts prohibited under Article II of the Genocide Convention. II. RAPE AND SEXUAL VIOLENCE ARE ACTS PROHIBITED UNDER ARTICLE II OF THE GENOCIDE CONVENTION 39. Although acts of sexual violence are not expressly included in the acts constituting genocide listed in Article II of the Genocide Convention, they can nevertheless be brought within the scope of each of the listed categories. The specified categories of act have been drafted in sufficiently generic and broad terms to be capable of encompassing all the forms of genocide that the human imagination might be capable of devising. We know that for the actus reus of the crime of genocide to be established, it suffices that the acts committed fall within the scope of just one of the categories listed in the Genocide Convention. So we will see that rapes and acts of sexual violence, which all come within the category of acts prohibited by Article II (b) and (c) of the Genocide Convention, may also fall within one or other of the three further categories of act covered by Article II, depending on the circumstances in which they were committed. First of all it is undeniable that: In the present case all the rapes and acts of sexual violence are acts of genocide under Article II (b) of the Genocide Convention, in that they are acts causing serious bodily or mental harm 40. On several occasions the United Nations General Assembly has made a point of stressing the extraordinary suffering 1 endured by the victims of rape and sexual violence. It is beyond dispute from the point of view of Article II (b) of the Convention that rapes and acts of sexual violence have the most significant repercussions, for it is difficult to see how it could be 1 See inter alia United Nations documents, doc. A/RES/48/143, Rape and abuse of women in the areas of armed conflict in the former Yugoslavia, 5 January 1994, Preamble, para. 14; doc. A/RES/50/192, Rape and abuse of women in the areas of armed conflict in the former Yugoslavia, 23 February 1996, para. 8. disputed except of course by denying that the acts ever took place that these are the very quintessence of serious bodily or mental harm. 41. Serious bodily harm means any form of bodily injury or any act that harms the physical state of the victim, any act that entails certain physical injuries. In the case of rapes or acts of sexual violence it needs to be stressed that one of the primary and immediate effects of the rape is first of all intense physical pain, sometimes bordering on real physical agony. Of course, over and above the immediate physical pain felt by the victim, rape may in certain cases have physical after-effects, may be accompanied by major, even irremediable, gynaecological problems that may cause sterility. Again it goes without saying that acts of mutilation of the genital organs are capable of causing great suffering or serious injury to body and health 2, which, I think, calls for no further comment. It also goes without saying that the physical suffering caused by rapes and acts of physical violence is associated with incalculable mental and psychological suffering. 42. Although of course serious mental harm relates to non-physical attacks, it is apparent that it continues far beyond the perpetration of the rape or act of sexual violence. Reflecting the perpetrator s profound contempt for the victim as a serious attack on the victim s dignity rapes and acts of sexual violence are in effect acts intended to humiliate and dehumanize the victim, in that they affect the victim in the core of his or her being. As General Dallaire put it: Massacres kill the body. Rape kills the soul The psychological effects of rape and other forms of sexual attack have been specifically analysed in the report of the United Nations Commission of Experts in the following terms: 12 Rape and other forms of sexual assault harm not only the body of the victim. The more significant harm is the feeling of total loss of control over the most intimate and personal decisions and bodily functions. This loss of control infringes on the victim s human dignity and is what makes rape and sexual assault such an effective means of ethnic cleansing. 4 2 Prosecutor v. Dusko Tadić alias Dule, case No. IT-94-1-T, Trial Chamber, Judgement, 7 May 1997, para Examination-in chief of Brent Beardsley, Former Aid to the Force Commander, General Roméo Dallaire, United Nations Peace-keeping mission in Rwanda, Bagasora, Kabiligi, Ntabakuze, Nsengiyumva (ICTR T), Trial transcript of 3 February 2004, cited by K. Askin Gender Crimes Jurisprudence in the ICTR. Positive Developments, Journal of International Criminal Justice, Vol. 3, No. 4, 2005, p United Nations, Final report of the Commission of Experts established pursuant to Security Council resolution 780 (1992), doc. S/1994/674/Add. 2, Vol. V, 28 December 1994, Rape and sexual attacks, p. 12, para. 25. The mental suffering that follows rapes and acts of sexual violence has important traumatic consequences generally expressed as Rape Trauma Symptom which may continue throughout the life of the victim, whether as a state of permanent distress, insomnia, incessant nightmares, depression, phobias or even disorders leading victims to refuse any sexual relationship. Such distress is perhaps most extreme when the woman falls pregnant following the rape. Such a pregnancy in these circumstances creates a terrible dilemma for the victim: she is torn between a mother s instinctive desire to keep her child and the wish to seek an abortion or, if it is medically too late for an abortion, to abandon her child: this is a choice as dramatically painful as Sophie s Choice 5, which no woman in the world would ever wish to face. A study which Bosnia and Herzegovina cited in its Reply 6 by doctors from a gynaecological clinic in Zagreb which took in raped Bosnian women emphasized this profound traumatism when it described how these women lived through their pregnancies: at the end of almost every session, the pregnant women in the present study group asked for help in ridding themselves of the unnatural body. They called the fetus a thing. They wished that they had a tumour instead of a baby, because a tumour could be removed easily. 7 A tumour rather than a baby : it is almost impossible for me to speak these words, and yet a woman managed to speak them not so long ago... There are many who rightly stress this unspeakable aspect of the mental suffering that originates from sexual violence: Amnesty 13 International has spoken of a wound to the soul 8, and a French historian has described rape, in a work entitled L histoire du viol 9, as mental murder. 45. These psychological consequences are particularly severe within Muslim society, where the reputation of women has a meaningful place in the reputation of the family. Over and above the humiliation and the suffering of the victim, it is the entire community that is disgraced. These 5 William Styron, Sophie s Choice, Random House, Reply of Bosnia and Herzegovina, 23 April 1998, Chapter 7, para Dragica Kozaric-Kovacic et al., Rape, Torture and Traumatization of Bosnian and Croatian Women: Psychological Sequelae, Amer. J. Orthopsychiat., Vol. 65, No. 3, July 1995, pp (Reply, Annex 78). 8 Amnesty International dénonce les viols qui se poursuivent en Bosnie, Le Monde, 23 January 1993, p. 3 (Reply, Annex 86). 9 Georges Vigarello, Histoire immédiate, Paris, 1998. - 5 - issues have been illustrated by the ICTR in a way that cannot be bettered, in a case in which it is emphasized, and I quote: the harm caused [a rape] need not bring about death but causes handicap such that the individual will be unable to be a socially useful unit or a socially existent unit of the group Do I need to stress, Madam President, after what I have just stated, that it is indisputable that rapes and acts of sexual violence fall within the terms of the phrase causing serious bodily or mental harm, the head of genocide set out in Article II (b) of the Convention. The initiative in expressly stating this obvious fact came from the International Criminal Tribunal for Rwanda; in the celebrated Akayesu case, the first in which a charge of genocide was upheld by an international tribunal, and a landmark in the development of the law, inasmuch as the court held that the concept of serious bodily or mental harm encompassed without being limited thereto acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution 11. As regards rapes and acts of sexual violence, the Tribunal emphasized that these acts: 14 constitute genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a particular group, targeted as such. 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 inflicting harm on the victim as he or she suffers both bodily and mental harm The subsequent jurisprudence of international criminal tribunals has consistently followed this approach, expressly citing acts of sexual violence and rape in their indictments under the head of serious bodily and mental harm 13. Recent confirmation can be found in the 10 ICTR, Prosecutor v. Clément Kayishema and Obed Ruzindana, ICTR Trial Chamber II, Judgement, 21 May 1999, para. 107; emphasis added. 11 ICTR, Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Trial Chamber I, Judgement, 2 September 1998, para. 504; Prosecutor v. Clément Kayishema and Obed Ruzindana, ICTR-95-1, Trial Chamber II, Judgement, 21 May 1999, para. 110; Prosecutor v. Georges Andersen Nderubumwe Rutaganda, ICTR-96-3-T, Trial Chamber I, Judgement, 6 December 1999, para. 51; Prosecutor v. Alfred Musema, ICTR-96-13, Trial Chamber I, Judgement and Sentence, 27 January 2000, para. 156; Prosecutor v. Ignace Bagilishema, ICTR-95-1A-T, Trial Chamber I, Judgement, 7 June 2001, para. 59; Prosecutor v. Laurent Semanza, case No. ICTR T, Trial Chamber III, Judgement and Sentence, 15 May 2003, paras ; Prosecutor v. Juvénal Kajelijeli, case No. ICTR-98-44A-T, Trial Chamber II, Judgement and Sentence, 1 December 2003, para. 815; Prosecutor v. Sylvestre Gacumbitsi, case No. ICTR T, Trial Chamber III, Judgement, 17 June 2004, para ICTR, Prosecutor v. Jean-Paul Akayesu, ICTR T, Trial Chamber I, Judgement, 2 September 1998, para ICTY, Prosecutor v. Radovan Karadžić and Ratko Mladić, cases No. IT-95-5-R61 and IT R61, Review of the Indictments pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 93. See ICTY, Prosecutor v. Zejnil Delalić, Zdravko Mucić alias Pavo, Hazim Delic, Esad Landzo alias Zenga ( Celebici ), case No. IT T, Trial Chamber II quater, Judgement, 16 November 1998, para. 486. - 6 - jurisprudence of the ICTY, more particularly in the Krstić case 14, in which the Tribunal held that inhuman treatment, torture, rape, sexual abuse... are among the acts which may cause serious bodily or mental injury In view of the preceding considerations it is difficult to see how it could be denied that the rape of a Bosnian Muslim woman amounts to serious bodily and mental harm inflicted on a member of the group of Bosnian Muslims, or that acts of sexual violence committed against non-serb men amount to serious bodily and mental harm inflicted on a member of the group of Bosnian non-serbs. It is an obvious fact. This serious bodily and mental harm is all the more grave because it is, so to speak, unending, as demonstrated by the touching testimony of a survivor of the Rwandan genocide, which can be read in a very moving book entitled SurVivantes, from which I will read a passage: 15 These victims are subjected to an unbearable paradox: they owe their survival to a rape. In most cases the killers had first massacred their families before their eyes, before abusing them and then sparing them. A paradox and a shocking piece of stagecraft: the killers let them live so that they would endure... a hell worse than death... So that [and the worst is I believe it] so that survival would be worth nothing to them... They held out during the genocide... They held out to survive that horror and now, having held out for ten years, they are in a state of living death. They are dying. That is precisely the power of genocide: a horror at the time, but also a horror afterwards. It is not the end of a genocide that completes the genocide, because inwardly there is never an end to a genocide. There is just an end to the killings, massacres, prosecutions [which is obviously essential] but there is no end to the destruction. 16 [Translation by the Registry.] In the present case all the rapes and acts of sexual violence are acts of genocide under Article II (c) of the Genocide Convention (deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part) 49. Thus, although it is impossible to deny that acts of sexual violence fall within the provisions of Article II (b) of the Genocide Convention, it is also quite obvious that in the present case all the rapes and acts of sexual violence are acts of genocide under Article II (c) of the said 14 ICTY, Prosecutor v. Radislav Krstić, case No. IT-98-33, Trial Chamber I, Judgement, 2 August, 2001, para Ibid., para Esther Majawayo and Souad Belhaddad, SurVivantes. Rwanda Histoire d un génocide, éd. de l aube, poche essai, 2004, p. 197; emphasis added. - 7 - Convention, which refers to the deliberate infliction on the group of conditions of life calculated to bring about its physical destruction in whole or in part. 50. I would explain first that this phrase means methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction 17. Thus what it is intended to cover are methods of destruction that act upon members of the group not immediately but gradually, and which are therefore inevitably far more insidious. 51. Rape may thus be regarded as a condition of life calculated to bring about the physical destruction of a group. As was expressly held by the ICTR: [i]t is the view of the Trial Chamber that... the conditions of life envisaged include rape, the starving of a group of people, reducing required medical services below a minimum, and withholding sufficient living accommodation for a reasonable period, provided the above would lead to the destruction of the group in whole or in part The ICTY, too, in the amended indictment issued by the Prosecutor on 11 October 2002 against General Ratko Mladić, stated that the latter is accused of complicity in genocide for having, by his acts and omissions, participated in a joint criminal enterprise aimed at a form of partial 16 destruction of the Bosnian Muslims, which was effected, inter alia, by: the subjecting of Bosnian Muslims to conditions of life calculated to bring about their physical destruction, namely through cruel and inhumane treatment, including torture, physical and psychological abuse, sexual violence It is thus clear that sexual violence is included among the conditions of life calculated to bring about the physical destruction of a group. 53. This point deserves more detailed explanation. First of all, we must keep in mind the fact already emphasized, that the consequences of rape and sexual violence go far beyond the damage caused to the physical and mental integrity of the victim, and have a more general scope. 17 ICTR, Prosecutor v. Jean-Paul Akayesu, ICTR T, Trial Chamber I, Judgement, 2 September 1998, para. 505; Prosecutor v. Alfred Musema, ICTR-96-13, Trial Chamber I, Judgement and Sentence, 27 January 2000, para. 157; Prosecutor v. Georges Andersen Nderubumwe Rutaganda, ICTR-96-3-T, Trial Chamber I, Judgement, 6 December 1999, para ICTR, Prosecutor v. Clément Kayishema and Obed Ruzindana, ICTR-95-1, Trial Chamber II, Judgement, 21 May 1999, para. 116; emphasis added. 19 ICTY, Prosecutor v. Ratko Mladić, case No. IT-95-5/18-1, Amended Indictment, 11 October 2002, para. 34 (c); emphasis added. - 8 - Over and above the individual, it is thus the latter s entire family that is targeted, and beyond the family, the group as a whole because the entire structure of the society is challenged. By particularly targeting women, rape and sexual violence, given the disastrous effects on their victims, to which I referred this morning, destroy the symbolic pillar of the group, the foundation on which rests the entire structure of family and social life. In this regard, one can only endorse the words of Raphaël Lemkin, who considered that genocide was established in cases involving a co-ordinated plan aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves 20. The destruction of essential foundations of the life of national groups. 54. By attacking the symbolic line of descent on which the group is based, i.e. the power of women to create life, rape and sexual violence undermine in cases of refusal by female victims of rape to procreate or the physical impossibility for them to have children after being raped the 17 aptitude and physical ability of the group to reproduce and renew itself, as was expertly explained by a French sociologist, Ms Véronique Nahoum-Grappe, in a passage I shall now read out: attempting to hurt someone is also an intellectual exercise: touching a sensitive spot involves knowing the sacred core of the victim s culture. In most cases, however, what families and communities hold most dear are the outward indicators of the line of descent, pointing either towards the past... or towards the future (children, female sexuality...). These indicators are thus ideal targets for crimes of desecration. A crime of desecration can therefore be defined as an attempt to interfere with blood ties at the point where the desecrator believes them to be manifested. 21. [Translation by the Registry.] Even though this desire to desecrate was doubtless not consciously present in the minds of the perpetrators of sexual violence, at least in those terms, it has to be considered that, by attacking the symbolic bedrock of the group, i.e. the woman as the vector of life, since she alone is able to give life, rape and sexual violence do in fact subject the group to conditions of life that eventually bring about its destruction. 20 R. Lemkin, Axis Rule in Occupied Europe, Washington, Carnegie Endowment for International Peace, 1944, p. 79; emphasis added. 21 V. Nahoum-Grappe, Purifier le lien de filiation. Les viols systématiques en ex-yougoslavie, [Purifying the line of descent. Systematic rape in the former Yugoslavia, ], Esprit, December 1996, p. 152; emphasis added. - 9 - In the present case, certain acts of rape and sexual violence are acts of genocide under Article II (a) of the Genocide Convention (killing members of the group) 55. Rape and sexual violence may constitute killing within the meaning of the Genocide Convention, in several ways. 56. Situations where rape and sexual violence are followed by killing are common. Death may in the first place be the irremediable and direct consequence of the victim s resistance to her aggressor, who avenges her refusal by deliberately killing her; such a case was recorded by the United Nations Commission of Experts in its report, which states: [c]aptors have killed women who resisted being raped, often in front of other prisoners 22. If such resistance to rape may occur directly in a re
Similar documents
View more...
Search Related
We Need Your Support
Thank you for visiting our website and your interest in our free products and services. We are nonprofit website to share and download documents. To the running of this website, we need your help to support us.

Thanks to everyone for your continued support.

No, Thanks
SAVE OUR EARTH

We need your sign to support Project to invent "SMART AND CONTROLLABLE REFLECTIVE BALLOONS" to cover the Sun and Save Our Earth.

More details...

Sign Now!

We are very appreciated for your Prompt Action!

x