3. The perpetrator subjected one or more persons to mutilation, in particular by permanently disfiguring the person or persons, or by permanently disabling or removing an organ or appendage.46

46 Consent is not a defence to this crime. The crime prohibits any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty. This footnote also applies to the same element for article 8 (2) (b) (x)‑2.

3.1.1. Evidence of the perpetrator subjected one or more persons to mutilation by permanently disfiguring of the person or persons.

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.

3.1.2. Evidence of the perpetrator subjecting one or more persons to mutilation by permanently disabling an organ of the person or persons.

P.4. Evidence of permanently disabling reproductive capacity.

3.1.3. Evidence of the perpetrator subjecting one or more persons to mutilation by permanently disabling an appendage of the person or persons.

P.5. Evidence of permanently disabling reproductive capacity.

3.1.4. Evidence of the perpetrator subjected one or more persons to mutilation by permanently removing an organ of the person or persons.

3.1.5. Evidence of the perpetrator subjected one or more persons to mutilation by permanently removing an appendage of the person or persons.

P.6. Evidence of removing a breast.

P.7. Evidence of removing an ear.

P.8. Evidence of removing genitals.

3. The perpetrator subjected one or more persons to mutilation, in particular by permanently disfiguring the person or persons, or by permanently disabling or removing an organ or appendage.46

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 Learner’s 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 person’s 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).

3.1.1. Evidence of the perpetrator subjected one or more persons to mutilation by permanently disfiguring of the person or persons.

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."

3.1.2. Evidence of the perpetrator subjecting one or more persons to mutilation by permanently disabling an organ of the person or persons.

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’."

3.1.3. Evidence of the perpetrator subjecting one or more persons to mutilation by permanently disabling an appendage of the person or persons.

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’."

3.1.4. Evidence of the perpetrator subjected one or more persons to mutilation by permanently removing an organ of the person or persons.

3.1.5. Evidence of the perpetrator subjected one or more persons to mutilation by permanently removing an appendage of the person or persons.

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:

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."