5. The perpetrator caused serious bodily and mental harm to one or more persons

5.1. The perpetrator caused serious bodily harm to one or more persons

P.1. Evidence of acts of bodily torture.

P.2. Evidence of harm that seriously injured health of victims.

P.3. Evidence of harm that caused disfigurement of victim.

P.4. Evidence of harm that caused serious injury to the external, internal organs or senses.

P.5. Evidence of mutilation.

P.6. Evidence that victim's hand was burnt with hot water.

P.7. Evidence that nails were hammered into detainees feet.

P.8. Evidence of interrogations combined with beatings.

P.9. Evidence of interrogations combined with threats of death.

P.10. Evidence of participation in an attack.

P.11. Evidence that the perpetrator conveyed armed attackers to the scene of the crime.

P.12. Evidence of beatings.

P.13. Evidence that victims were forced to run a gauntlet.

P.14. Evidence that victims were forced to eat inedible substances.

P.14.1. Evidence that victims were forced to eat paper.

P.14.2. Evidence that victims were forced to drink petrol.

P.14.3. Evidence that victims were forced to lick their own blood.

P.15. Evidence of humiliation.

P.15.1. Evidence that victims were forced to graze grass like animals.

P.15.2. Evidence that victims were forced to hit their heads against a wall.

P.15.3. Evidence that victims were forced to lick their own blood.

P.15.4. Evidence that victims were forced to run naked while pursued by guards with whips.

P.15.5. Evidence of humiliation of physically and mentally impaired victims.

P.15.6. Evidence of ethnic slurs.

P.16. Evidence that electric shocks were administered.

P.17. Evidence that electric shocks were administered.

P.17.1. Evidence that victims were forced to beat each other.

P.17.2. Evidence that victims were forced to beat each other by running at full speed and butting heads together.

P.17.3. Evidence that victims were forced to slap other detainees.

P.18. Evidence of mass execution survivors' trauma.

P.19. Evidence of certain crimes committed by the perpetrator.

P.19.1. Evidence of persecution by the perpetrator.

P.19.2. Evidence of deportation by the perpetrator.

P.19.3. Evidence of acts inhumane or degrading treatment by the perpetrator.

P.20. Evidence of rape and sexual violence.

P.20.1. Evidence that female victims were taken out at night and raped.

P.20.2. Evidence that female victims were raped and sexually assaulted by camp officials.

P.20.3. Evidence that victims were forced to perform sexual acts in public.

P.20.4. Evidence that the perpetrator ordered acts of sexual violence.

P.20.5. Evidence that the perpetrator allowed sexual violence to be perpetrated on premises under his authority.

P.20.6. Evidence that the perpetrator facilitated, through words of encouragement signifying official tolerance, acts of sexual violence.

P.20.7. Evidence that the perpetrator failed to oppose acts of sexual violence.

P.20.8. Evidence of the perpetrator's presence during the commission of sexual violence.

P.21. Not required: Evidence that the harm was permanent or irremediable.

P.22. Exculpatory: Evidence that the victims of mistreatment were able to escape.

5.2. The perpetrator caused serious mental harm to one or more persons.

P.23. Evidence of acts of mental torture.

P.24. Evidence of harm that caused impairment of mental faculties.

P.25. Evidence of harm that caused serious injury to the mental state of the victim.

P.26. Evidence of psychological damage to victim as a result of detention.

P.27. Evidence of mental harm to victims as a result of knowledge of imminent death.

P.28. Evidence of mental harm as a result of forced removal of identification documents from victims.

P.29. Evidence of mass execution survivors' trauma.

P.30. Evidence of forced displacement.

P.31. Evidence of mental harm as a result of exposure to killing fields.

P.32. Evidence of rape and sexual violence.

P.32.1. Evidence that female victims were raped and sexually assaulted by camp officials.

P.32.2. Evidence that female victims were raped and sexually assaulted by camp officials.

P.32.3. Evidence that victims were forced to perform sexual acts in public.

P.32.4. Evidence that the perpetrator ordered acts of sexual violence.

P.32.5. Evidence that the perpetrator allowed sexual violence to be perpetrated on premises under his authority.

P.32.6. Evidence that the perpetrator facilitated, through words of encouragement signifying official tolerance, acts of sexual violence.

P.32.7. Evidence that the perpetrator failed to oppose acts of sexual violence.

P.32.8. Evidence of the perpetrator's presence during the commission of sexual violence.

P.33. Evidence of certain crimes committed by the perpetrator.

P.33.1. Evidence of persecution by the perpetrator.

P.33.2. Evidence of deportation by the perpetrator.

P.33.3. Evidence of acts of inhumane or degrading treatment by the perpetrator.

P.34. Not required: Evidence that the harm was permanent or irremediable.

5. The perpetrator caused serious bodily and mental harm to one or more persons

As noted by ICTY Trial Chamber in The Prosecutor v. Radovan Karadžić:

"543. Article 4(2)(b) refers to an intentional act or omission which causes serious bodily or mental harm to members of the protected group and requires proof of a result. The harm must go "beyond temporary unhappiness, embarrassment or humiliation", and result "in a grave and longterm disadvantage to a person’s ability to lead a normal and constructive life". It need not be permanent and irreversible.

544. The Chamber notes that according to the Seromba Appeals Chamber "[t]o support a conviction for genocide, the bodily or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part." However, in its assessment of the facts, the Seromba Appeals Chamber did not examine whether the evidence demonstrated that the inflicted harm was so serious as to threaten the group’s destruction. Similarly, Trial Chambers of the Tribunal and the ICTR which recite the language in question have only examined the seriousness of acts without referring to any showing that the harm was such as to threaten the group’s destruction. Moreover, the majority of trial judgements rendered prior to and after the Seromba Appeal Judgement consistently reiterate the language of Article 4(2)(b) of the Statute without requiring a showing that the harm was such as to threaten the group’s destruction. Furthermore, in the instant case, the Appeals Chamber in the Rule 98 bis Appeal Judgement simply recalled Article 4(2)(b) without indicating the existence of an additional requirement. In light of the foregoing, the Chamber is therefore of the view that there is no additional requirement that the serious bodily or mental harm to members of the group be of such serious nature as to threaten the destruction of the group in whole or in part. The degree of threat to the group’s destruction may, however, be considered as a measure of the seriousness of the bodily or mental harm.

545. Determination of what constitutes serious harm depends on the circumstances of each case. Examples of serious bodily or mental harm as an act of genocide include torture, inhumane or degrading treatment, sexual violence including rape, interrogations combined with beatings, threats of death, and harm that damages health or causes disfigurement or serious injury to the external or internal organs of members of the group. While forcible transfer does not of itself constitute an act of genocide, depending on the circumstances of a given case, it may cause such serious bodily or mental harm as to constitute an act of genocide under Article 4(2)(b)." [1]

The Akayesu Trial Chamber stated:

"Causing serious bodily or mental harm to members of the group does not necessarily mean that the harm is permanent and irremediable"[2]

"For purposes of interpreting Article 2(2) (b) of the Statute, the Chamber takes serious bodily or mental harm, without limiting itself thereto, to mean acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution."[3]

The Krstić Trial Chamber said:

"The Trial Chamber finds that serious bodily or mental harm for purposes of Article 4 actus reus is an intentional act or omission causing serious bodily or mental suffering. The gravity of the suffering must be assessed on a case by case basis and with due regard for the particular circumstances. In line with the Akayesu Judgement, the Trial Chamber states that serious harm need not cause permanent and irremediable harm, but it must involve harm that goes beyond temporary unhappiness, embarrassment or humiliation. It must be harm that results in a grave and long-term disadvantage to a person's ability to lead a normal and constructive life. In subscribing to the above case-law, the Chamber holds that inhuman treatment, torture, rape, sexual abuse and deportation are among the acts which may cause serious bodily or mental injury."[4]

The Stakić Trial Chamber stated:

"Causing serious bodily or mental harm' in sub-paragraph (b) is understood to mean, inter alia, acts of torture, inhumane or degrading treatment, sexual violence including rape, interrogations combined with beatings, threats of death, and harm that damages health or causes disfigurement or injury. The harm inflicted need not be permanent and irremediable."[5]

The Stakić Trial Chamber stated:

The Indictment limits the charges of genocide to the basic, underlying criminal acts listed in paragraphs (a) to (c) of Article 4(2) of the Statute and the Trial Chamber to be a great extent concurs with the legal elements of the Article as put forward by the Prosecution.

"The acts in paragraph (a) [killing] and (b) [causing serious bodily harm] require proof of a result"[6]

The Nzabonimana Trial Chamber held that:

"[t]o support a conviction for genocide, the bodily or mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part."[7]

Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, paras. 201-204:

''201. Article 4(2)(b) of the Statute provides that genocide can be committed by “causing serious bodily or mental harm to members of the [protected] group” with intent to destroy, in whole or in part, the group as such. “Serious bodily or mental harm” is not defined in the Statute. Drawing on the case law of the ICTY and the ICTR, the Trial Chamber held that serious bodily or mental harm: must be of such a serious nature as to contribute or tend to contribute to the destruction of all or part of the group; although it need not be permanent or irreversible, it must go “beyond temporary unhappiness, embarrassment or humiliation” and inflict “grave and long-term disadvantage to a person’s ability to lead a normal and constructive life”. The Trial Chamber also stated that the determination of the seriousness of the harm in question “must be made on a case-by-case basis”.''

''202. The Appeals Chamber recalls that it has not directly addressed what constitutes serious mental harm as an act of genocide. Nonetheless, it is satisfied that the definition of serious mental harm adopted in the Trial Judgement is consistent with the case law of the ICTY and the ICTR and aligns with the letter and spirit of the Genocide Convention. The Appeals Chamber rejects Tolimir’s contention that the Trial Chamber based its understanding of “serious mental harm” on the Draft Genocide Convention. The Trial Chamber placed no reliance on this document in defining serious mental harm. The Trial Chamber cited the Draft Genocide Convention only as additional support for its further finding that forcible transfer may be an underlying act causing serious bodily or mental harm “in particular if the forcible transfer operation was conducted under such circumstances as to lead to the death of all or part of the displaced population”.''

''203. As correctly stated by the Trial Chamber, serious mental harm must be of such a serious nature as to contribute or tend to contribute to the destruction of all or part of the group. The ICTR Appeals Chamber in the Seromba case has held in this regard that: serious mental harm includes “more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat”. Indeed, nearly all convictions for the causing of serious bodily or mental harm involve rapes or killings. To support a conviction for genocide, the bodily harm or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part. Contrary to Tolimir’s argument, serious mental harm must be lasting but need not be permanent and irremediable. Tolimir fails to show that these articulations of serious mental harm are “too general and imprecise”.''

''204. The Appeals Chamber is also not persuaded that the United States of America’s “understanding” of serious mental harm as “the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques”, expressed in its instrument of accession to the Genocide Convention, is correct under customary international law, as Tolimir argues. Tolimir does not point to any other State party to the Genocide Convention subscribing to such a restrictive reading of serious mental harm as an act of genocide, nor does he explain why the Appeals Chamber should not be guided by the case law of the ICTY, the ICTR, and the ICJ on the matter. Tolimir’s challenges to the Trial Chamber’s definition of serious mental harm as a genocidal act fail.''

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 543-545:

"543. Article 4(2)(b) refers to an intentional act or omission which causes serious bodily or mental harm to members of the protected group and requires proof of a result. The harm must go “beyond temporary unhappiness, embarrassment or humiliation”, and result “in a grave and longterm disadvantage to a person’s ability to lead a normal and constructive life”. It need not be permanent and irreversible."

"544. The Chamber notes that according to the Seromba Appeals Chamber “[t]o support a conviction for genocide, the bodily or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.” However, in its assessment of the facts, the Seromba Appeals Chamber did not examine whether the evidence demonstrated that the inflicted harm was so serious as to threaten the group’s destruction. Similarly, Trial Chambers of the Tribunal and the ICTR which recite the language in question have only examined the seriousness of acts without referring to any showing that the harm was such as to threaten the group’s destruction. Moreover, the majority of trial judgements rendered prior to and after the Seromba Appeal Judgement consistently reiterate the language of Article 4(2)(b) of the Statute without requiring a showing that the harm was such as to threaten the group’s destruction. Furthermore, in the instant case, the Appeals Chamber in the Rule 98 bis Appeal Judgement simply recalled Article 4(2)(b) without indicating the existence of an additional requirement. In light of the foregoing, the Chamber is therefore of the view that there is no additional requirement that the serious bodily or mental harm to members of the group be of such serious nature as to threaten the destruction of the group in whole or in part. The degree of threat to the group’s destruction may, however, be considered as a measure of the seriousness of the bodily or mental harm."

"545. Determination of what constitutes serious harm depends on the circumstances of each case. Examples of serious bodily or mental harm as an act of genocide include torture, inhumane or degrading treatment, sexual violence including rape, interrogations combined with beatings, threats of death, and harm that damages health or causes disfigurement or serious injury to the external or internal organs of members of the group. While forcible transfer does not of itself constitute an act of genocide, depending on the circumstances of a given case, it may cause such serious bodily or mental harm as to constitute an act of genocide under Article 4(2)(b)."

5.1. The perpetrator caused serious bodily harm to one or more persons

The Kayishema and Ruzidana Trial Chamber stated:

"It is the view of the Trial Chamber that, to large extent, "causing serious bodily harm" is self-explanatory. This phrase could be construed to mean harm that seriously injures the health, causes disfigurement or causes any serious injury to the external, internal organs or senses."[8]

According to the Ndindiliyimana et al. Trial Chamber:

"[T]he term 'serious bodily or mental harm' is not defined in the Statute. However, the term 'causing serious bodily harm' refers to acts of 'sexual violence' and 'serious physical violence' falling short of killing that seriously damage the health, disfigure or cause any serious injury to the external or internal organs or senses."[9]

P.1. Evidence of acts of bodily torture.

P.2. Evidence of harm that seriously injured health of victims.

P.3. Evidence of harm that caused disfigurement of victim.

P.4. Evidence of harm that caused serious injury to the external, internal organs or senses.

P.5. Evidence of mutilation.

P.6. Evidence that victim's hand was burnt with hot water.

P.7. Evidence that nails were hammered into detainees feet.

P.8. Evidence of interrogations combined with beatings.

The Stakić Trial Chamber stated:

""Causing serious bodily or mental harm" in sub-paragraph (b) is understood to mean, inter alia, acts of torture, inhumane or degrading treatment, sexual violence including rape, interrogations combined with beatings, threats of death, and harm that damages health or causes disfigurement or injury. The harm inflicted need not be permanent and irremediable."[10]

P.9. Evidence of interrogations combined with threats of death.

P.10. Evidence of participation in an attack.

P.11. Evidence that the perpetrator conveyed armed attackers to the scene of the crime.

P.12. Evidence of beatings.

P.13. Evidence that victims were forced to run a gauntlet.

P.14. Evidence that victims were forced to eat inedible substances.

P.14.1. Evidence that victims were forced to eat paper.

P.14.2. Evidence that victims were forced to drink petrol.

P.14.3. Evidence that victims were forced to lick their own blood.

P.15. Evidence of humiliation.

P.15.1. Evidence that victims were forced to graze grass like animals.

P.15.2. Evidence that victims were forced to hit their heads against a wall.

P.15.3. Evidence that victims were forced to lick their own blood.

P.15.4. Evidence that victims were forced to run naked while pursued by guards with whips.

P.15.5. Evidence of humiliation of physically and mentally impaired victims.

P.15.6. Evidence of ethnic slurs.

P.16. Evidence that electric shocks were administered.

P.17. Evidence that electric shocks were administered.

P.17.1. Evidence that victims were forced to beat each other.

P.17.2. Evidence that victims were forced to beat each other by running at full speed and butting heads together.

P.17.3. Evidence that victims were forced to slap other detainees.

P.18. Evidence of mass execution survivors' trauma.

P.19. Evidence of certain crimes committed by the perpetrator.

P.19.1. Evidence of persecution by the perpetrator.

P.19.2. Evidence of deportation by the perpetrator.

According to the Akayesu Trial Chamber:

"In the Adolf Eichmann case, who was convicted of crimes against the Jewish people, genocide under another legal definition, the District Court of Jerusalem stated in its judgment of 12 December 1961, that serious bodily or mental harm of members of the group can be caused 'by the enslavement, starvation, deportation and persecution [...] and by their detention in ghettos, transit camps and concentration camps in conditions which were designed to cause their degradation, deprivation of their rights as human beings, and to suppress them and cause them inhumane suffering and torture'."[11]

P.19.3. Evidence of acts inhumane or degrading treatment by the perpetrator.

P.20. Evidence of rape and sexual violence.

According to the Akayesu Trial Chamber:

"[With regard, particularly, to the acts described in paragraphs 12(A) and 12(B) of the Indictment, that is, rape and sexual violence, the Chamber wishes to underscore the fact that in its opinion, they 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 inflict[ing] harm on the victim as he or she suffers both bodily and mental harm. In light of all the evidence before it, the Chamber is satisfied that the acts of rape and sexual violence described above, 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."[12]

P.20.1. Evidence that female victims were taken out at night and raped.

P.20.2. Evidence that female victims were raped and sexually assaulted by camp officials.

P.20.3. Evidence that victims were forced to perform sexual acts in public.

P.20.4. Evidence that the perpetrator ordered acts of sexual violence.

P.20.5. Evidence that the perpetrator allowed sexual violence to be perpetrated on premises under his authority.

P.20.6. Evidence that the perpetrator facilitated, through words of encouragement signifying official tolerance, acts of sexual violence.

P.20.7. Evidence that the perpetrator failed to oppose acts of sexual violence.

P.20.8. Evidence of the perpetrator's presence during the commission of sexual violence.

P.21. Not required: Evidence that the harm was permanent or irremediable.

P.22. Exculpatory: Evidence that the victims of mistreatment were able to escape.

5.2. The perpetrator caused serious mental harm to one or more persons.

According to the Krstić Trial Chamber:

"A distinction must thus be drawn between serious mental harm and emotional or psychological damage or attacks on the dignity of the human person not causing lasting impairment."[13]

According to the Semanza Trial Chamber:

"This Tribunal has held "serious mental harm" to mean more than minor or temporary impairment of mental faculties.

"The Chamber adopts the foregoing standards pronounced in Akayesu and Kayishema and Ruzindana as to the determination of serious bodily or mental harm. In addition, the Chamber finds that serious mental harm need not be permanent or irremediable."[14]

According to the Krstić Trial Chamber:

"In line with the Akayesu Judgement, the Trial Chamber states that serious harm need not cause permanent and irremediable harm, but it must involve harm that goes beyond temporary unhappiness, embarrassment or humiliation. It must be harm that results in a grave and long-term disadvantage to a person's ability to lead a normal and constructive life. In subscribing to the above case-law, the Chamber holds that inhuman treatment, torture, rape, sexual abuse and deportation are among the acts which may cause serious bodily or mental injury."[15]

P.23. Evidence of acts of mental torture.

P.24. Evidence of harm that caused impairment of mental faculties.

P.25. Evidence of harm that caused serious injury to the mental state of the victim.

P.26. Evidence of psychological damage to victim as a result of detention.

P.27. Evidence of mental harm to victims as a result of knowledge of imminent death.

P.28. Evidence of mental harm as a result of forced removal of identification documents from victims.

P.29. Evidence of mass execution survivors' trauma.

P.30. Evidence of forced displacement.

P.31. Evidence of mental harm as a result of exposure to killing fields.

P.32. Evidence of rape and sexual violence.

According to the Karemera and Ngirumpatse Trial Chamber:

"Considering the nature of the crimes and the brutal and often public manner in which they were carried out, often repeatedly and by more than one assailant, the Chamber concludes that the sexual assaults, mutilations and rapes that Tutsi women were forced to endure from April to June 1994 certainly constituted acts of serious bodily and mental harm."[16]

P.32.1. Evidence that female victims were raped and sexually assaulted by camp officials.

P.32.2. Evidence that female victims were raped and sexually assaulted by camp officials.

P.32.3. Evidence that victims were forced to perform sexual acts in public.

P.32.4. Evidence that the perpetrator ordered acts of sexual violence.

P.32.5. Evidence that the perpetrator allowed sexual violence to be perpetrated on premises under his authority.

P.32.6. Evidence that the perpetrator facilitated, through words of encouragement signifying official tolerance, acts of sexual violence.

P.32.7. Evidence that the perpetrator failed to oppose acts of sexual violence.

P.32.8. Evidence of the perpetrator's presence during the commission of sexual violence.

P.33. Evidence of certain crimes committed by the perpetrator.

P.33.1. Evidence of persecution by the perpetrator.

P.33.2. Evidence of deportation by the perpetrator.

According to the Nyiramasuhuko et al. Trial Chamber:

"The Chamber cannot discern any identifiable act of genocide involved in the arrest and forced movement of the refugees to Kabuye Hill. The Chamber does not find that the interception or forced escorting of the refugees to Kabuye Hill itself constitutes genocide. While the Chamber accepts that their arrest by armed soldiers and commune policemen, the firing of guns and their forced return to Gisagara and Kabuye may have caused them significant fear and mental suffering in view of the context at the time, the Chamber does not consider it proven that the mental harm suffered was more than minor or temporary."[17]

P.33.3. Evidence of acts of inhumane or degrading treatment by the perpetrator.

P.34. Not required: Evidence that the harm was permanent or irremediable.