Element:

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

"The Chamber considers that the perpetrator must have been aware of individually or collectively exercising one of the attributes of the rights of ownership over a person and forced such person to engage in one or more acts of a sexual nature. Therefore the perpetrator must have been aware that he or she was exerting such powers and have meant to engage in the conduct in order to force the person concerned to engage in acts of a sexual nature or have been aware that such a consequence would occur in the ordinary course of events.

The Chamber notes that footnotes 17 and 65 to the Elements of Crimes state that considering the complex nature of this crime, "it is recognized that its commission could involve more than one perpetrator as part of a common criminal purpose." However, the Chamber considers that article 30 of the Statute must apply to each perpetrator in order to establish his or her individual criminal responsibility for the commission of the crime of sexual slavery. Accordingly, whilst respecting the statutory requirement of intent and knowledge vis-a-vis each perpetrator, the Chamber will evaluate whether the first two constituent elements of the crime are established in respect of collective action."[15]

The Kunarac et al Appeals Chamber decided that:

"[...] as far as the mens rea of the crime of enslavement is concerned, the Appeals Chamber concurs with the Trial Chamber that the required mens rea consists of the intentional exercise of a power attaching to the right of ownership. It is not required to prove that the accused intended to detain the victims under constant control for a prolonged period of time in order to use them for sexual acts."[1]

The Pre-Trial Chamber of the ICC iterated the mens rea for this offence in Katanga and Chui:

"[t]his subjective element applies to: (i) the act of invasion of the body of a person resulting in penetration, by force, or by threat of force or coercion; and (ii) the exercise of any or all the powers attaching to the right of ownership over one or more persons, imposing on such person(s) her/his deprivation of liberty, and causing such person(s) to engage in one or more acts of sexual nature. The subjective elements of both crimes include, first and foremost, dolus directus of the first degree. They also may include dolus directus of the second degree."[2]

According to the Appeals Chamber in Kaing Guek Eav the perpetrator must have:

"[...] intentionally exercised any or all of the powers attaching to the right of ownership."[3]