1011.            […] [T]he Trial Chamber found that, at the beginning of June 1994, Nyiramasuhuko came to the Cyarwa-Sumo Sector, Ngoma Commune, and distributed condoms for the Interahamwe to be used in the raping and killing of Tutsi women in that sector.[1] The Trial Chamber further found that Nyiramasuhuko gave the following order to the woman to whom she distributed the condoms: “[g]o and distribute these condoms to your young men, so that they use them to rape Tutsi women and to protect themselves from AIDS, and after having raped them they should kill all of them. Let no Tutsi woman survive because they take away our husbands.”[2]

1012.            […] [T]he Trial Chamber found that “this circumstantial evidence shows Nyiramasuhuko’s intent to destroy, in whole or in substantial part, the Tutsi group”[3] and relied in part on this evidence to find that Nyiramasuhuko possessed the specific intent to commit genocide in relation to other events.[4]

[…]

1029.            With respect to Nyiramasuhuko’s argument that, although genocidal intent can be inferred, it cannot be split from the actus reus and must be assessed with respect to the specific alleged crime, at the alleged time, and in the circumstances alleged, the Appeals Chamber recalls that genocidal intent may be inferred, inter alia, from evidence of other culpable acts systematically directed against the same group.[5] […]

1030.            The Appeals Chamber notes that Nyiramasuhuko’s distribution of condoms and statement evincing her intent to target Tutsi women occurred in the beginning of June 1994. In light of the time elapsed between the Mid-May Attack and this incident, this incident alone could not effectively demonstrate Nyiramasuhuko’s specific intent when ordering killings of Tutsis at the prefectoral office during the Mid‑May Attack.[6] However, as highlighted previously, the Trial Judgement reflects that the finding of Nyiramasuhuko’s genocidal intent when ordering killings at the prefectoral office during the Mid-May Attack – and the Night of Three Attacks – was predicated on her role in the attack that occurred then and there.[7] In addition, the Trial Chamber also relied on additional circumstantial evidence that Nyiramasuhuko possessed the specific intent to commit genocide from 19 April 1994, when she tacitly approved Kambanda’s and Sindikubwabo’s Speeches during Nsabimana’s Swearing-In Ceremony. Nyiramasuhuko has not demonstrated that the Trial Chamber erred in this regard. To the extent that the Trial Chamber relied on Nyiramasuhuko’s distribution of condoms and statement evincing her intent to target Tutsi women as additional circumstantial evidence of Nyiramasuhuko’s genocidal intent, the Appeals Chamber finds no error in this approach.

727. […] The Appeals Chamber recalls that the intent to destroy a group as such is circumscribed by the “area of the perpetrators’ activity and control” and the “extent of [the perpetrators’] reach”.[1] Absent direct evidence of genocidal intent, the “scale of the atrocities committed” is one of several factors relevant to determining genocidal intent[2] and the fact that more members of a targeted group could have been, for example, killed, but were not, may indicate a lack of the dolus specialis required to prove such intent.[3] 

728. […] The Trial Chamber recalled that conduct not constituting acts of genocide may be considered when assessing genocidal intent.[4] Furthermore, when assessing the mens rea for genocide, the Trial Chamber extensively detailed criminal conduct committed against Bosnian Muslims and Bosnian Croats that resulted in both immediate physical destruction as well as the remaining conduct which the Prosecution argues would have impacted the long-term survival of the targeted groups.[5] The Appeals Chamber finds that the Trial Chamber acted within the bounds of the law and its discretion when contrasting the number of Bosnian Muslims and Bosnian Croats displaced versus those who were victims of conduct falling within Article 4(2) of the ICTY Statute in assessing whether genocidal intent had been established.[6]

See also para. 729.

[…]

745. […] Evidence demonstrating ethnic bias, however reprehensible, does not necessarily prove genocidal intent.[7] Utterances that fall short of expressly calling for a group’s physical destruction might constitute evidence of genocidal intent but a perpetrator’s statements must be understood and assessed in their proper context.[8] […]