Violência Sexual como Ato de Genocídio

Abstract

The term genocide was coined by the Polish-Jewish lawyer Raphael Lemkin in 1944, stemming from his concern regarding acts aimed at destroying the foundations of life of national groups — acts intended to annihilate groups of human beings. The Convention on the Prevention and Punishment of the Crime of Genocide established its first legal definition in 1948. Similarly, sexual violence was only criminalised and prosecuted by the ad hoc international criminal tribunals from the 1990s onwards. In this context, the case of Jean-Paul Akayesu (ICTR-96-04) is considered paradigmatic, as it marked the first conviction for genocide in history and the first time an international criminal tribunal adjudicated rape and other forms of sexual violence as acts of genocide. The understanding that sexual violence may constitute genocide against a national, ethnic, racial, or religious group is controversial, particularly for two reasons: unlike war crimes and crimes against humanity, sexual violence was not explicitly described as an act under the provisions of Article 2 of the Genocide Convention and Article 6 of the Rome Statute (genocide), raising questions regarding the principle of legality; and in the crime of genocide, the perpetrator commits the acts with the intent to destroy, in whole or in part, the targeted group. Therefore, the central objective of this research is to investigate whether sexual violence, including rape, can constitute an act of genocide. Additionally, the aim is to examine how sexual violence may - or may not - fall within the objective and subjective elements of genocide. Consequently, the research problem addressed is: what are the requirements for sexual violence to be considered an act of genocide? The methodology employed in this thesis involved bibliographical, documentary, and jurisprudential research. The conclusion reached is that the imposition of measures intended to prevent births within the group, such as enforced sterilization, and serious bodily or mental harm to members of the group, such as rape and forced pregnancy, may fall within the definition of genocide, provided they are committed with the specific subjective element of the crime: the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, as such.