5.a. [Mental element for Element 3][Conduct of exercising 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]: The perpetrator meant to exercise 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.

3. 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.

3.1. Exercise of the right of ownership

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

ICC

In the Ntaganda Decision on the Charges, the Pre-Trial Chamber held that:

"The Chamber concludes that there are substantial grounds to believe that the UPC/FPLC soldiers committed acts of sexual slavery only in the Second Attack, but not in the First Attack. In determining whether the perpetrator exercised powers attaching to the right of ownership over the victim, as a requisite element of the crime of sexual slavery, the Chamber has examined the nature of such relationship by considering various factors collectively. Thus, in regard to the First Attack, the Chamber is not satisfied that the evidence reveals such relationship, the more so compared with the facts and evidence concerning the Second Attack. In particular, the Chamber does not consider that in the absence of other factors, mere imprisonment or its duration are sufficient to satisfy the element of ownership over the victim of the crime of sexual slavery." [13]

ICTY

The Trial Chamber in Kunarac et al. held that:

"indications 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. 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, psych oppression or socio-economic conditions. 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."[1]

In Kunarac et al., the Appeals Chamber rejected the argument that:

"lack of resistance or the absence of a clear or constant lack of consent during the entire time of the detention can be interpreted as a sign of consent."[2]

SCSL

In Taylor, the Trial Chamber stated that:

"[t]here is no requirement that there be any payment or exchange in order to establish the exercise of ownership. The deprivation of liberty may include exacting forced labour or otherwise reducing a person to servile status [...] The Trial Chamber finds that by depriving the women of their liberty, forcing them to engage in sexual acts, and in some cases forcing them to do labour, the perpetrators intentionally exercised powers of ownership over them."[3]

Citing the Appeals Chamber in Kunarac et al., the Trial Chamber in Sesay et al. emphasized that:

"the lack of consent of the victim to the enslavement or to the sexual acts is not an element to be proved by the Prosecution, although whether or not there was consent may be relevant from an evidentiary perspective in establishing whether or not the Accused exercised any of the powers attaching to the right of ownership. The Chamber subscribes to the statement of the ICTY Appeals Chamber that "circumstances which render it impossible to express consent may be sufficient to presume the absence of consent." The duration of the enslavement is not an element of the crime, although it may be relevant in "determining the quality of the relationship."[4]

ECCC

Moreover, the Supreme Court Chamber in Kaing Guek Eav stated that:

"the notion of enslavement centred on ownership is not coterminous with 'chattel slavery'. Chattel slavery connotes outright ownership of a human being, which is only sustainable by at least some endorsement from society, through the legal system in particular. In its most advanced form, chattel slavery goes as far as to comprise: the ownership of slave offspring; succession in ownership, including through inheritance; the existence of a slave market; and protection against infringement on existing ownership rights through criminal law. In modern times, given the universal condemnation of slavery, societal mechanisms and circumstances enabling enslavement based on the exercise of full, in the civil law sense, powers of ownership rarely occur. The exercise over a person of some of the powers attaching to ownership rights is usually possible only within the margins of criminal activity and/or in the situation of failing or deficient state systems."[5]

Furthermore, the Supreme Court Chamber in Kaing Guek Eav held:

"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. [...]Therefore, 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."[6]

3.1.2. Benefits obtained by committing the crime of enslavement

3.2.I mpossibility of the person to take decisions voluntarily.

SCSL

The Trial Chamber in Sesay et al. cited the Kunarac et al. Trial Chamber when it noted that:

"the expression 'similar deprivation of liberty' may cover situations in which the victims may not have been physically confined, but were otherwise unable to leave as they would have nowhere else to go and feared for their lives."[7]

3.3. Exercise of all types of control over the person

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

3.3.2. Elements showing how control has been applied

In Kunarac et al., the Appeals Chamber held that contemporary forms of slavery may include:

"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."[8]

3.4. Use or threat of violence

In relation to establishing sexual slavery as the crime against humanity of other inhumane acts, the Trial Chamber in Sesay et al. held that:

"the perpetrators intended to exercise control and ownership over their victims who were unable to leave or escape for fear that they would be killed or sent to the front lines as combatants. Accordingly, the Chamber finds that young girls and women were intentionally forced into conjugal relationships with rebels

We also find that many women were forced into marriage by means of threats, intimidation, manipulation and other forms of duress which were predicated on the victims' fear and their desperate situation.

In light of the foregoing and given the violent, hostile and coercive environment in which these women suddenly found themselves, the Chamber first of all considers that the sexual relations with the rebels, notwithstanding the contention of the Defence to the contrary, and on the basis of very credible and compelling evidence, could not, and was, in circumstances, not consensual because of the state of uncertainty and subjugation in which they lived in captivity.

"In this regard, the Chamber is of the opinion and so holds, that in hostile and coercive circumstances of this nature, there should be a presumption of absence of genuine consent to having sexual relations or contracting marriages with the said RUF fighters."[9]