3. The perpetrator exercised any or all of the powers attaching 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.

3.1.2. Benefits obtained by committing the crime of enslavement.

3.2. Impossibility of the person to take decisions voluntarily.

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

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.

3.4. Use or threat of violence.

3. The perpetrator exercised any or all of the powers attaching 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.

In the Katanga Trial Judgement, the Trial Chamber held that:

"Turning to the first element, the Chamber considers that the various examples which the Elements of Crimes enumerate are not exhaustive, inasmuch as the "right of ownership" and the powers attaching to it may take many forms. Powers attaching to right of ownership must be construed as the use, enjoyment and disposal of a person who is regarded as property, by placing him or her in a situation of dependence which entails his or her deprivation of any form of autonomy.

To prove the exertion of powers which may be associated with the right of ownership or which may ensue therefrom, the Chamber will undertake a case-by-case analysis, taking account of various factors. Such factors may include detention or captivity and their respective duration; restrictions on freedom to come and go or on any freedom of choice or movement; and, more generally, any measure taken to prevent or deter any attempt at escape. The use of threats, force or other forms of physical or mental coercion, the exaction of forced labour, the exertion of psychological pressure, the victim’s vulnerability and the socioeconomic conditions in which the power is exerted may also be taken into account. In the view of the Chamber, articles 7(1)(g)-2(1) and 8(2)(e)(vi)-2(1) of the Elements of Crimes are framed such that the exercise of the right of ownership over someone need not entail a commercial transaction. In fact, the Chamber considers that the notion of servitude relates first and foremost to the impossibility of the victim’s changing his or her condition."[14]

The Kunarac Appeals Chamber held 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. In the case of these various contemporary forms of slavery, the victim is not subject to the exercise of the more extreme rights of ownership associated with "chattel slavery", but in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there is some destruction of the juridical personality; the destruction is greater in the case of "chattel slavery" but the difference is one of degree. The Appeals Chamber considers that, at the time relevant to the alleged crimes, these contemporary forms of slavery formed part of enslavement as a crime against humanity under customary international law." "[1]

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

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." [16]

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."[2]

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."[3]

3.1.2. Benefits obtained by committing the crime of enslavement.

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."[4]

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

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

The Kunarac et al. Appeals Chamber rejected:

"[the] contention that lack of resistance or the absence of a clear and constant lack of consent during the entire time of the detention can be interpreted as a sign of consent. 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. However, consent may be relevant from an evidential point of view as going to the question whether the Prosecutor has established the element of the crime relating to the exercise by the accused of any or all of the powers attaching to the right of ownership. 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."[5]

In Kunarac et al., the Appeals Chamber considered it:

"[...] appropriate in the circumstances of this case to emphasise the citation by the Trial Chamber of the following excerpt from the Pohl case: Slavery may exist even without torture. Slaves may be well fed, well clothed, and comfortably housed, but they are still slaves if without lawful process they are deprived of their freedom by forceful restraint. We might eliminate all proof of ill-treatment, overlook the starvation, beatings, and other barbarous acts, but the admitted fact of slavery - compulsory uncompensated labour - would still remain. There is no such thing as benevolent slavery. Involuntary servitude, even if tempered by humane treatment, is still slavery. The passage speaks of slavery; it applies equally to enslavement."[6]

3.3. Exercise of all types of control over the person.

The Kunarac et al. Appeals Chamber found 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; this Judgement is limited to the case in hand. In this respect, the Appeals Chamber would also like to refer to the finding of the Trial Chamber in paragraph 543 of the Trial Judgement stating:

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. The Trial Chamber considers that the mere ability to do so is insufficient, such actions actually occurring could be a relevant factor.

"However, this particular aspect of the Trial Chamber's Judgement not having been the subject of argument, the Appeals Chamber does not consider it necessary to determine the point involved."[7]

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

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]

Furthermore, the Appeal Chamber in Kaing Guek Eav clarified that:

"[...] in certain circumstances, enslavement through forced or involuntary labour can be established 'without evidence of additional ill- treatment.' Finally, the Chamber held that '[p]roof that the victim did not consent to being enslaved is not required, as enslavement is characterised by the perpetrator's exercise of power'."[9]

3.3.2. Elements showing how control has been applied.

3.4. Use or threat of violence.