5.The perpetrator exercised any or all of the powers attached to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.

5.1.Exercise of the right of ownership.

5.1.1.Exercise of any or all the powers attached to the rights of ownership

5.1.2.Benefits obtained by committing the crime of enslavement

5.2.Impossibility of the person to take decisions voluntarily

5.2.1. Absence of free will or real choice while taking decisions

5.3.Exercise of all types of control over the person

5.3.1.Exercise of control, physical or psychological, over the person

5.3.2.Elements showing how control have been applied

5.4.Use or threat of violence

5. The perpetrator exercised any or all of the powers attached to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.

5.1. Exercise of the right of ownership.

According to the Kaing Appeals Chamber:

"With respect to the actus reus element of the Trial Chamber's definition, international law does not recognise a "right of ownership over a person.' Therefore, the more precise language should be 'the exercise over a person of any or all powers attaching to the right of ownership.' This language is consistent with the wording of Article 1(1) of the Slavery Convention, which defines slavery as 'the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised."[1]

5.1.1. Exercise of any or all the powers attached to the rights of ownership

ICTY

The Kunarac Trial Judgement noted:

"Although the international legal struggle against slavery - dating back more than a century and a half - was one of the most important forerunners to the international protection of human rights, it is only in 1926 that the Slavery Convention provided the first basic definition. That definition - 'Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised'."[2]

According to Kunarac Trial Chamber:

"[E]nslavement as a crime against humanity in customary international law consist[s] of the exercise of any or all of the powers attaching to the right of ownership over a person."[3]

According to the Krnojelac Trial Chamber:

"The Kunarac Judgment held that enslavement constituted a crime against humanity under customary international humanitarian law, and the Trial Chamber is satisfied that the analysis there of the customary nature of enslavement also applies to the offence of slavery under Article 3 of the Statute. The Trial Chamber accepts that the express prohibition of slavery in Additional Protocol II of 1977, which relates to internal armed conflicts, confirms the conclusion that slavery is prohibited by customary international humanitarian law outside the context of a crime against humanity. The Trial Chamber considers that the prohibition against slavery in situations of armed conflict is an inalienable, non-derogable and fundamental right, one of the core rules of general customary and conventional international law." "[4]

The Kunarac Appeals Chamber stated:

"The Appeals Chamber accepts the chief thesis of the Trial Chamber that the traditional concept of slavery, as defined in the 1926 Slavery Convention and often referred to as 'chattel slavery', has evolved to encompass various contemporary forms of slavery which are also based on the exercise of any or all of the powers attaching to the right of ownership."[5]

According to the Kunarac Trial Chamber:

"The Prosecutor also submitted that the mere ability to buy, sell, trade or inherit a person or his or her labours or services could be a relevant factor."[6]

According to the Kunarac Appeal Judgement:

"The Appeals Chamber considers that the question whether a particular phenomenon is a form of enslavement will depend on the operation of the factors or indicia of enslavement identified by the Trial Chamber. These factors include the 'control of someone's movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour'. Consequently, it is not possible exhaustively to enumerate all of the contemporary forms of slavery which are comprehended in the expansion of the original idea; [...]." "[7]

The Krnojelac Trial Judgement stated:

"International humanitarian law does not prohibit all labour by protected persons in armed conflicts. Generally, the prohibition is against forced or involuntary labour [...]."[8]

According to the Kunarac Trial Judgement:

"[I]ndications of enslavement include elements of control and ownership; the restriction or control of an individual's autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator [...] Further indications of enslavement include exploitation; the exaction of forced or compulsory labour or service, often without remuneration and often, though not necessarily, involving physical hardship; sex; prostitution; and human trafficking. With respect to forced or compulsory labour or service, international law, including some of the provisions of Geneva Convention IV and the Additional Protocols, make clear that not all labour or service by protected persons, including civilians, in armed conflicts, is prohibited - strict conditions are, however, set for such labour or service."[9]

According to the Krnojelac Trial Judgement:

"Civilians deprived of their liberty in the context of a non-international armed conflict can nevertheless be made to work under certain circumstances. Article 5(1) of Additional Protocol II sets out the applicable standard [...]. Where those guarantees are violated, the performance of that labour may be treated as an indication of enslavement [...]"."[10]

According to Krnojelac Trial Judgement:

"[...] It is clear from the Tribunal's jurisprudence that 'the exaction of forced or compulsory labour or service' is an 'indication of enslavement', and a 'factor to be taken into consideration in determining whether enslavement was committed' [...]. Such circumstances may include the following:

The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence, deception or false promises; the abuse of power; the victim's position of vulnerability; detention or captivity, psychological oppression or socio-economic conditions.

"What must be established is that the relevant persons had no real choice as to whether they would work."[11]

According to Krnojelac Trial Judgement:

"It has not been established that a decision was taken to force the detainees to work [...]"[]"[]

"[...] As a result, the Trial Chamber is not satisfied that the Prosecution has established that there was a plan to keep detainees imprisoned for the primary purpose of using them as labour or that the Accused was in any way responsible for or involved in a plan to keep any detainees at the KP Dom for the primary purpose of being used for forced labour." "[12]

"Having considered all the relevant evidence, the Chamber is not satisfied that the general circumstances in the KP Dom during the Accused's administration were of such a nature as to render the work of every detainee involuntary. Whether a particular detainee was forced to work is to be assessed on an individual basis, as to whether he had no real choice as to whether he had to work." "[13]

"In considering whether an individual detainee was forced to work, the Trial Chamber considers the following factors to be relevant: the substantially uncompensated aspect of the labour performed [...].

"[...] The Trial Chamber is also satisfied that the working detainees were generally under armed supervision."[14]

"The Trial Chamber is not satisfied that the Prosecution has established that those detainees who refused to or could not work were sent to solitary confinement during the Accused's administration [...]"[]"[]

"There was no direct evidence adduced by the Prosecution that those who could not or were unwilling to work were forced to do so during the Accused's administration [...]."[15]

"[...] The beliefs and fears of the detainees, in particular in the context of the general inhumane conditions and atmosphere in the KP Dom, are of course relevant to a determination of whether they worked voluntarily, but a reliance solely on such unsupported conclusions expressed by the witnesses would not be safe in the circumstances outlined."[16]

"The Trial Chamber is not satisfied that the allegation that detainees were forced to work in the furniture factory has been established [...] Moreover, when reasons were given, they were mainly that the detainee wished to obtain the extra food given to workers or to escape from his room. The Trial Chamber does not accept that such a motive, without more, amounts to the detainees being forced to work. The issue in every case is as already stated, whether the particular detainee had lost his choice to consent or to refuse the work he was doing."[17]

"The nature of the work done by FWS-109 and Kukavica is such that it is prohibited under both Articles 3 and 5 of the Statute, so that any supposed consent to it would be irrelevant [...]."[18]

According to Krnojelac Appeal Judgement:

"It is clear, however, that the non-Serb detainees were subjected to a wholly different regime. The overcrowding of the solitary confinement cells in which the detainees were so packed that they were unable to move around or lie down, the starvation and its principal effects in terms of weight loss, the widespread nature of the beatings and mistreatment and the psychological abuse linked to the detention conditions and mistreatment constitute circumstances particularly indicative of the discriminatory character of the acts of forced labour imposed upon the non-Serb detainees."[19]

"[...] The Appeals Chamber is satisfied that the detainees worked to avoid being beaten or in the hope of obtaining additional food. Those who refused to work did so out of fear on account of the disappearances of detainees who had gone outside of the KP Dom. The climate of fear made the expression of free consent impossible and it may neither be expected of a detainee that he voice an objection nor held that a person in a position of authority need threaten him with punishment if he refuses to work in order for forced labour to be established. In such circumstances, the fact that a detainee raised an objection is immaterial in ascertaining whether it was truly impossible to object."[20]

"[...] The Prosecution submits that the only reasonable conclusion open to a trier of fact on the evidence before the Trial Chamber in this case was that the conditions in the KP Dom were so coercive as to negate any possibility of consent by the workers unlawfully detained there."[21]

"[...] On this point, the Appeals Chamber rejects the Prosecution's argument that evidence which establishes the victim's subjective state of mind and relates to the facts indicating that he was forced to work is clearly relevant and may of itself be sufficient to establish lack of consent. The Appeals Chamber takes the view that such an opinion is not sufficient to establish forced labour and that the detainees' personal conviction that they were forced to work must be proven with objective and not just subjective evidence. In this case, given the particular circumstances of the detention centre, there was sufficient objective evidence to prove that the detainees were in fact forced to work, thus bearing out their conviction that the labour they performed was forced."[22]

"[...] What must be borne in mind is the Trial Chamber's finding in paragraph 438 of the Judgment that the Serbs were legally imprisoned at the KP Dom, whereas the non-Serbs were detained for no lawful reason. It states: '[w]hile some Serbs were also held in the KP Dom, they were held legally, having been convicted by courts of law prior to the outbreak of the conflict or having been detained for military offences during the conflict. By contrast, the non-Serbs were not detained on any legal ground, nor was their continued confinement subject to review.'[...]." "[23]

"[...] The Appeals Chamber holds that there can be no question of the Serb detainees being subjected to forced labour since their detention was legal. The Appeals Chamber considers that a comparison between the labour performed by the Serb detainees and that performed by the non-Serb detainees is immaterial here. [...]." "[24]

SCSL

The Taylor Trial Chamber stated:

"Considering the circumstances of Ngekia's capture in Koidu Town in December 1999, with many corpses lying around and men armed with guns telling the civilians that they were now in RUF control, the Trial Chamber is satisfied that the civilians were forced to carry the looted goods to Tombodu."[25]

5.1.2. Benefits obtained by committing the crime of enslavement

On that point, the Kaing Appeal Chamber specified:

"The requisite element of the mens rea and actus reus of the crime before it is an effort to accrue some gain through the exercise over the victim of the powers that attach to the right of ownership. The gain element is not an additional element of crime but rather the purpose implicit in the ownership powers as such."[26]

5.2.I mpossibility of the person to take decisions voluntarily

5.2.1. Absence of free will or real choice while taking decisions

ICTY

According to the Kunarac Appeals Chamber:

"Indeed, the Appeals Chamber does not accept the premise that lack of consent is an element of the crime since, in its view, enslavement flows from claimed rights of ownership; accordingly, lack of consent does not have to be proved by the Prosecutor as an element of the crime. [...] In this respect, the Appeals Chamber considers that circumstances which render it impossible to express consent may be sufficient to presume the absence of consent. In the view of the Appeals Chamber, the circumstances in this case were of this kind." "[27]

According to the Kunarac Trial Chamber:

"It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence, deception or false promises; the abuse of power; the victim's position of vulnerability; detention or captivity, psychological oppression or socio-economic conditions." "[28]

SCSL

On that point, the Taylor Trial Chamber found:

"Alimamy Bobson Sesay's evidence establishes that civilians captured by the RUF and AFRC in Kono District were forced to carry loads, go on food-finding missions and carry the looted food back, in circumstances in which they had no freedom of choice or movement in that they were kept in captivity in a very vulnerable position by armed men. The Trial Chamber is therefore satisfied beyond reasonable doubt that by depriving the civilians of their liberty and forcing them to work, members of the AFRC/RUF forces intentionally exercised powers of ownership over these civilians from around mid-March 1998."[29]

5.3. Exercise of all types of control over the person

ICTY

The Kunarac Appeal Judgement noted that:

"The Appeals Chamber considers that the question whether a particular phenomenon is a form of enslavement will depend on the operation of the factors or indicia of enslavement identified by the Trial Chamber."[30]

According the the Kunarac Trial Chamber these include:

"The Trial Chamber is therefore in general agreement with the factors put forward by the Prosecutor, to be taken into consideration in determining whether enslavement was committed. These are the control of someone's movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour." "[31]

ECCC

In the same way, the Kaing Appeal Chamber developed:

"In any event, enslavement necessarily implies the presence of behavioural aspects of ownership and, therefore, the facts of an enslavement charge must be evaluated in accordance with the meaning of ownership understood as a category of civil law and economy. Therefore, in going through the checklist of indicia of enslavement, a Chamber must above all identify the indicia of 'ownership', that is, facts pointing to the victim being reduced to a commodity, such that the person is an object of 'enjoyment of possession'; that she or he can be used (for example, for sexual purposes); economically exploited; consumed (for purposes of organ harvesting, for example); and ultimately disposed of. Clearly, the exercise over a person of powers attaching to ownership requires a substantial degree of control over the victim. There is no enslavement, however, where the control has an objective other than enabling the exercise of the powers attaching to ownership."[32]

5.3.1. Exercise of control, physical or psychological, over the person

The Taylor Trial Chamber found:

"The Trial Chamber is satisfied on the evidence of Alex Tamba Teh that in about April 1998 civilians in Wondedu were forced to go on food-finding missions and carry outdomestic chores. It is further satisfied that all the civilians had 'AFRC' and 'RUF' carved into their bodies to prevent them from escaping. The Trial Chamber accordingly finds that the civilians were deprived of their liberty and had no choice but to undertake the foodfinding missions and domestic chores."[33]

The Taylor Trial Chamber found:

"Furthermore, in relation to the training that Bull and 16 to 20 other civilians underwent at a location between Woama and Baima, Bull's evidence establishes that he was threatened with death if he refused to undergo the training, that he was required to perform training exercises while he was sick, and that trainees who were perceived to be underperforming were hit on the back with machetes."[34]

5.3.2. Elements showing how control have been applied

The Kunarac Appeal Chamber stated:

"The Appeals Chamber upholds this finding and observes that the duration of the enslavement is not an element of the crime. The question turns on the quality of the relationship between the accused and the victim. A number of factors determine that quality. One of them is the duration of the relationship. The Appeals Chamber considers that the period of time, which is appropriate, will depend on the particular circumstances of each case." "[35]

5.4. Use or threat of violence