9.c [Mental element for Element 5] [Circumstance of lack of justification:] The perpetrator was aware that the mutilation was neither justified by the medical, dental or hospital treatment of their person or persons concerned nor carried out in such person’s or persons’ interests.

P.29. Evidence inferred from a document, utterance or deed.

P.29.1. Evidence inferred from singing songs while committing mutilating acts.

P.29.2. Evidence inferred from fashion of removal.

P.30. Evidence inferred from a circumstance.

P.30.1. Evidence inferred from having a person’s mouth covered to stem screams.

P.30.2. Evidence inferred from taking action despite victims pleas.

9.c [Mental element for Element 5] [Circumstance of lack of justification:] The perpetrator was aware that the mutilation was neither justified by the medical, dental or hospital treatment of their person or persons concerned nor carried out in such person’s or persons’ interests.

P.29. Evidence inferred from a document, utterance or deed.

P.29.1. Evidence inferred from singing songs while committing mutilating acts.

A. Legal source/authority and evidence:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 294:

“294. On their way to the gathering places many witnesses saw roadblocks where the perpetrators separated Tutsis from the Hutus. Once the Tutsis reached these places they were injured, mutilated and some of the women were raped. In the end the Tutsis were massacred by Hutu assailants who sang songs whose lyrics exhorted extermination during the attacks. These attackers were armed and led by local government officials and other public figures. The fact that these massacres occurred is not in dispute. In fact, Kayishema testified that he and others engaged in a clean-up operation after the massacres.”

Trial of Karl Brandt et al., United States Military Tribunal, Judgment of 20 August 1947, in Nuernberg Military Tribunals, Trials of War Criminals Volume II, pp. 277-279:

“Among 10 millions of Jews in Europe, there are, I figure, at least 2-3 millions of men and women who are fit enough to work. Considering the extraordinary difficulties the labour problem presents us with I hold the view that those 2-3 millions should be specially selected and preserved. This can however only be done if at the same time they are rendered incapable to propagate. About a year ago I reported to you that agents of mine have completed the experiments necessary for this purpose. I would like to recall these facts once more. Sterilization, as normally performed on persons with hereditary diseases is here out of the question because it takes too long and is too expensive. Castration by X-ray is however not only relatively cheap, but can also be performed in many thousands on the shortest time. I think at this time that it is already irrelevant whether the people in question become aware of having been castrated after some weeks or months, once they feel the effects.”

P.29.2. Evidence inferred from fashion of removal.

P.30. Evidence inferred from a circumstance.

P.30.1. Evidence inferred from having a person’s mouth covered to stem screams.

P.30.2. 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.”

[B. Evidentiary comment:]