Table of contents
Element
P.19. Evidence inferred from an utterance, a document or a deed.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 587-588, 651, 653:
"587. [ ] Kovac would also invite his friends to his apartment, and he sometimes allowed them to rape one of the girls . Kovac also sold three of the girls, A.S., A.B. and FWS-87. Prior to their being sold, Kovac had given two of these girls, FWS-75 and A.B., to other Serb soldiers who abused them for more than three weeks before taking them back to Kovac, who proceeded to sell one and give the other away to acquaintances of his."
"588. The accused Radomir Kovac knew of the attack against the Muslim civilian population, and he also perpetuated it by prolonging the ordeal of these girls by selling or giving them to men whom he knew would rape them and abuse them."
"651. The Trial Chamber is also satisfied that Dragoljub Kunarac was aware of the gang-rape of FWS-75 during her stay in the house. Firstly, the Trial Chamber accepts the evidence provided by FWS-75 as to Kunarac entering the room while she was still being raped by "Bane" and telling her to get dressed because they had to go. Secondly, the witnesses as well as Kunarac in his statement of March 1998, Ex P67, said that the sexual intercourse of D.B. and Kunarac and the gang-rape of FWS-75 by a group of soldiers took place in adjacent rooms. The Trial Chamber is satisfied that Kunarac must have heard sounds caused by this incident. Thirdly, the fact that the accused Kunarac and "Gaga" took the girls to Ulica Osmana ?ikića no 16 in concert makes it highly unlikely, and therefore incredible, that Dragoljub Kunarac would not have known that FWS-75 was brought to the house for the purposes of rape, as was D.B."
"653. The Trial Chamber is therefore satisfied that the allegations made in paragraph 5.3 of the Indictment have been proved beyond reasonable doubt, namely that Dragoljub Kunarac took FWS-75 and D.B. to Ulica Osmana Dikica no 16 for them to be raped. On this occasion, Kunarac personally had sexual intercourse with D.B. in the knowledge that she did not consent and aided and abetted the gang-rape of FWS-75 at the hands of several of his soldiers by taking her to the house in the knowledge that she would be raped there and that she did not consent to the sexual intercourse."
P.20. Evidence inferred from a circumstance.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 300, 586, 646-647, 653, 701:
"300. [ ] When she returned, girls and women from Partizan had been brought into the house and were being raped. Among them were FWS-87 and D.B., possibly also FWS-50.
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998
, para. 962:"962. The Trial Chamber finds that acts of vaginal penetration by the penis and anal penetration by the penis, under circumstances that were undoubtedly coercive, constitute rape. These rapes were intentionally committed by Hazim Delic who was an official of the Bosnian authorities running the prison-camp."
Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, at para. 79, U.N. Doc. No. E/CN.4/Sub.2/1998/13 (1998):
"79. [ ] Holding commanders, superiors and other authorities to a "knew or should have known" standard is appropriate for assessing liability at this level, and where acts of sexual slavery or sexual violence are occurring on a widespread or notorious basis, such defendants will be presumed to have knowledge of the acts and of their international prohibition. [ ]"
