Element:

5. The conduct was neither justified by the medical, dental or hospital treatment of their person or persons concerned nor carried out in such persons or persons interest.^{6 8}

A. Evidentiary comment:

This element elaborates on the prohibition of medical experiments. With respect to justified mutilations, procedures conducive to improving the state of health of the person concerned ought to be permitted. Acts which do not serve a therapeutic purpose are prohibited. This approach was endorsed during ICC negotiations. As noted by the ICC PrepCom, however, the crime of mutilation specifically prohibits any medical procedure which is neither indicated by the state of health of the person concerned, nor consistent with generally accepted medical standards.

Any such act can only be justified by the health of the person, such as a life saving amputation. Medical experiments, which do not form the only possibility to save a persons life or health, are not within the interest of the person and are thus prohibited.

5.1. The conduct was neither justified by the medical, dental or hospital treatment of their person or persons concerned; AND

P.12. Evidence inferred from display of disrespect for the breast removed.

A. Legal source/authority and evidence:

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, para. 678:

678. [] The Chamber therefore finds that Ntenzireyerimye and Uyamuremye, members of the Interahamwe, mutilated a Tutsi girl named Nyiramburanga by cutting off her breast and then licking it, on the morning of 7 April 1994 in Rwankeri cellule.

P.13. Evidence inferred from attacking unarmed persons with machetes, grenades and guns.

A. Legal source/authority and evidence:

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, para. 154:

154. The Chamber also finds that the attackers attacked the refugees at the parish with grenades, guns and machetes up to about 7 p.m., killing, wounding and mutilating a number of them.

P.14. Evidence inferred from fashion of removal.

A. Evidentiary comment:

5.2.The conduct was not carried out in the interests of the person or persons concerned.

P.15. Evidence of lack of knowledge of the person or persons.

A. Legal source/authority and evidence:

Trial of Karl Brandt et al., United States Military Tribunal, Judgment of 20 August 1947, in Nuremberg Military Tribunals, Trials of War Criminals Volume II, p. 278, p. 171:

With this end in view Himmler instructed Brack to inquire of physicians who were engaged in the Euthanasia Program about the possibility of a method of sterilizing persons without the victims knowledge.

P.16. Evidence inferred from taking action despite victims pleas.

A. Legal source/authority and evidence:

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, para. 163:

163. [] There is no doubt that by these words, the Accused was ordering the murder of each of the 15 Tutsi survivors, given that once these words were uttered, the attackers attacked the survivors with machetes, with two of them mutilating Witness TAX, despite her pleas, leaving her for dead.

P.17. Evidence inferred from fashion of removal.