Table of contents:
P.1. Evidence of removing a breast.
P.2. Evidence of semi-incineration.
P.3. Evidence of common injuries does not amount to mutilation not sufficient.
P.4. Evidence of permanently disabling reproductive capacity.
P.5. Evidence of permanently disabling reproductive capacity.
P.6. Evidence of removing a breast.
P.7. Evidence of removing an ear.
Element:
A. Evidentiary comment:
The verb to mutilate is defined in the Cambridge International Dictionary of English (1995) as to damage severely, esp. by violently removing a part (p. 933) and in the Oxford Advanced Learners Dictionary (1992) as to injure, damage or disfigure somebody by breaking, tearing or cutting off a necessary part (p. 819).
The ICC Elements of Crimes define mutilation as involving in particular permanent damage. However, this is not framed as a strict requirement in all cases. Note also that article 8(2)(b)(x) states physical mutilation to clarify that no mental or psychological harm could constitute mutilation. The concept of mutilation includes any severe encroachment on a persons physical integrity, which causes permanent harm. (see Gerhard Werle, Principles of International Criminal Law, p. 308).
The enumeration in the text is not exclusive, but is only intended to illustrate different fashions of perpetration of this offence. Mutilation is to be understood in the same fashion as in Art. 8(2)(b)(x) and always refers to an act of physical violence, such as amputations, injury to limbs and sexual mutilations. (see Andreas Zimmermann, in Triffterer, Commentary to the Rome Statute of the International Criminal Court, p. 273, 216).
P.1. Evidence of removing a breast.
A. Legal source/authority and evidence:
Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, para. 935:
935. The Chamber found that, at Rwankeri cellule on 7 April 1994, a Tutsi girl named Nyiramburanga was mutilated by an Interahamwe who cut off her breast and then licked it.
P.2. Evidence of semi-incineration.
P.3. Evidence of common injuries does not amount to mutilation not sufficient.
A. Legal source/authority and evidence:
Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-T, Judgement (TC), 25 February 2004, para. 260:
260. Prosecution Exhibit 37 provides the medical examiner's observations on the condition of the sixteen bodies exhumed from the pit latrine. The medical examiner's report recounts the common characteristics and injuries The report indicates that several of the bodies had injuries but that the sexual organs of the bodies were not mutilated.
P.4. Evidence of permanently disabling reproductive capacity.
A. Legal source/authority and evidence:
Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T, Judgement (TC), 3 December 2003, para. 812:
812. In his statement of 8 December 1997, Witness EB did refer to the torture and mutilation of Tutsi victims before finishing them off by driving umbrella stems into their genitals.
P.5. Evidence of permanently disabling reproductive capacity.
A. Legal source/authority and evidence:
Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T, Judgement (TC), 3 December 2003, para. 812:
812. In his statement of 8 December 1997, Witness EB did refer to the torture and mutilation of Tutsi victims before finishing them off by driving umbrella stems into their genitals.
P.6. Evidence of removing a breast.
A. Legal source/authority and evidence:
P.7. Evidence of removing an ear.
P.8. Evidence of removing genitals.
A. Legal source/authority and evidence:
ICC, The Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10, Decision on the confirmation of charges (PTC), 16 December 2011, para. 159-160:
"159. In relation to the status of the victims. Witness 672, a former FDLR member who was not present during the attack, says that he heard that Mandarine had cut off the sexual organs of soldiers during the attack in Busurungi. It is unclear whether or not such soldiers were hors de combat, but it appears more likely that they were. Witness 562, who also participated in the attack, explains that he could not be sure whether Mandarine was mutilating civilians or soldiers, but assumed it was civilians because there were no FARDC soldiers anymore in the village when he saw Mandarine holding a penis. Furthermore, Witness 694 [REDACTED] was indeed a civilian inhabitant of the village. The Chamber is further satisfied that the FDLR soldiers who committed those acts of mutilation did so intentionally and were aware of the civilian status of the victims.
160. In light of the above, the Chamber finds substantial grounds to believe that the war crime of mutilation under article 8(2)(c)(i)-2 of the Statute was committed by the FDLR troops in Busurungi and surrounding villages on or about 9-10 May 2009. The Prosecution charges the war crime of mutilation in the alternative under article 8(2)(c)(i)-2 or article 8(2)(e)(xi)-l. Since the Chamber has already found substantial grounds to believe that the elements of the crime under article 8(2)(c)(l)-2 of the Statute are fulfilled, it will not analyse the same offence under article 8(2)(e)(xi)-l of the Statute."
Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC), 16 May 2003 para. 303:
303. The witness then saw Mika cut off Kabanda's head with a machete, and castrate him.
B. Evidentiary comment:
