Table of contents

, par 542.

966 Involuntariness is the fundamental definitional feature of "forced or compulsory labour" of the ICCPR (Bossuyt, Guide to the "Travaux Préparatoires" of the International Covenant on Civil and Political Rights (1987), p 167). Article 8 of the ICCPR prohibits, inter alia, slavery, servitude and forced or compulsory labour.

967

United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946

, pars 542-543."

"373. 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 vulnerable position in which the detainees found themselves, the allegations that detainees who were unable or unwilling to work were either forced to or put in solitary confinement, claims of longer term consequences of the labour, the fact of detention and the inhumane conditions in the KP Dom."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 535, 542:

"535. [] The Court (ECtHR) expressly took account of the 1930 Forced and Compulsory Labour Convention and the 1957 Forced Labour Convention in interpreting "forced or compulsory labour" as used in the European Convention.¹³¹³ It found that the word "labour" is not limited to manual labour.¹³¹⁴ Concerning the adjective "forced", the Court stated that "it brings to mind the idea of physical or mental constraint [...]."¹³¹⁵ As to "compulsory", there has to be work ""exacted [...] under the menace of any penalty" and also performed against the will of the person concerned, that is work for which he "has not offered himself voluntarily"".¹³¹⁶ The Court also referred to the jurisprudence of the European Commission, which has consistently considered the elements of forced or compulsory labour to be that the work or service is performed against the will of the person concerned and that the requirement that the work or service is performed is unjust or oppressive or the work or service itself involves unavoidable hardship.¹³¹⁷ The Court expressly distanced itself from the second element identified by the Commission,¹³¹⁸ and adopted a different approach,¹³¹⁹ eventually holding that there was no compulsory labour for the purposes of Article 4(2) of the European Convention.¹³²⁰"

"1313. Ibid.

1314. Ibid, par 33.

1315. Ibid, par 34.

1316. Ibid.

1317. Ibid, par 37.

1318. Observing that it derives not from Article 2(1) of the 1930 Forced and Compulsory Labour Convention but from other unrelated Articles of that Convention concerned with transitional arrangements (ibid, par 40).

1319. Ibid.

1320. Ibid, par 40"

"542.[] Further indications of enslavement include [] the exaction of forced or compulsory labour or service []"

, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 526:

"The record is filled with Goerings admissions of his complicity in the use of slave labor Workers were forced to come to the Reich. That is something I have not denied That I requested inmates of concentration camps for the armament of the Luftwaffe is correct and it is to be taken as a matter of course".

Evan Julian et al. v. New Zealand, Communication No. 601/1994, Decision (Human Rights Committee), 29 April 1997, UN Doc. CCPR/C/59/D/601/1994, para. 2.4:

"2.4. In August 1945, following the Japanese surrender to Allied Forces, the horrific fate of the Far East prisoners of war was fully discovered. [] The vast majority had been used as forced slave labour on road and airfield construction. [] Many had been transported in inhumane and unsanitary conditions by sea to Japan to work on the docks, the shipyards and in coal and copper mines."

Mar?a Mej?a v. Guatemala, Case No. 10.553, Report No. 32/96, OEA/Ser.L/V/II.95 Doc. 70 rev., Decision, (Inter-American Commission on Human Rights), 16 October 1996, para. 62:

"62. The persecution by the members of the PACs and the military commissioners against those who leave the PACs constitutes a violation of Article 6.2 of the Convention. Members of the PACs are required to participate in watch patrols and other vigilance and similar types of work without any compensation. Obligatory participation in the PACs thus implies an obligation of forced labor with the PACs. ^[27] As a result, the Commission concludes that Article 6.2 of the Convention, which expressly proscribes forced labor, prohibits forced participation in the PACs and protects the right to refuse such an obligation. The Commission also points out that the exercise of the rights protected in the American Convention can never justify attacks or reprisals by state agents. ^[28]"

"27. See Iversen v. Norway, App. No. 1468/62, Judgment of December 17, 1963, Yearbook of the European Convention on Human Rights, vol. 6, p. 338 (defining forced labor as work: 1) executed by the worker against his will; 2) which is injust or oppressive in and of itself or which involves an unjust or oppressive obligation).

28.

Velásquez Rodr?guez Case, Judgment of July 29, 1988

, par. 144."

[B. Evidentiary comment:]

P.2.2. Evidence of the reduction of a person to a servile status.

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. 534, 728:

"534. []In the Van Droogenbroeck v Belgium case,¹³⁰⁷ the European Commission observed obiter dictum, that the distinction between servitude and forced labour is not explicitly stated in the European Convention and that

It may be considered, however, that in addition to the obligation to perform certain services for others, the notion of servitude embraces the obligation for the "serf " to live on another persons property and the impossibility of altering his condition .¹³⁰⁸

The European Commission was chiefly guided in this interpretation by Article 1 of the Supplementary Slavery Convention.¹³⁰⁹"

"1307. Application No 7906/77, Decision of 5 July 1979 on the admissibility of the application, European Commission of Human Rights, D/R 17, 59.

1308 - Ibid, p 72.

1309 - Ibid."

"728. Paragraph 10.2 of Indictment IT-96-23 alleges that FWS-186 and FWS-191 were kept in the abandoned house in Trnovace for approximately 6 months starting on 2 August 1992. It further alleges that, during the time of their detention, FWS-191 was constantly raped by the accused Dragoljub Kunarac while FWS-186 was constantly raped by DP 6. Dragoljub Kunarac reserved FWS-191 for himself. According to paragraph 10.3, the girls were treated as personal property of the accused Kunarac and DP 6, they had to do household chores and they had to obey all demands."

Van Droogenbroek v. Belgium (Article 50), Application No. 7906/77, Judgement (Merits) (European Court of Human Rights), 24 June 1982, para. 58

"58. The applicant's first allegation was that by being placed at the Government's disposal he was held in "servitude", contrary to paragraph 1, in that he was subjected "to the whims of the administration". The situation complained of did not violate Article 5 par. 1 (art. 5-1) (see paragraph 42 above). Accordingly, it could have been regarded as servitude only if it involved a "particularly serious" form of "denial of freedom" (see paragraphs 79-80 of the Commission's report), which was not so in the present case."

[B. Evidentiary comment:]

P.2.3. Evidence of slavery.

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, para. 525:

"525. []

US v Oswald Pohl and Others, Judgement of 3 November 1947

, in considering war crimes and crimes against humanity charges, succinctly held as follows:

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.¹²⁷³"

"1273.

, reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, Vol V, (1997), p 958 at p 970. Other CCL 10 cases in which enslavement and related aspects were considered, include IG Farben (

US v Carl Krauch and Others

), summarised in Law Reports of Trials of War Criminals, The UN War Crimes Commission, Vol X (1997), pp 1-68 at 53; and Flick (

US v Friedrich Flick and Others

), reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, Vol VI (1997)."

United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946

, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 542:

"On 3^rd October 1939, [Frank] described the policy which he intended to put into effect [as Governor General of Poland] by stating: Poland shall be treated like a colony; the Poles will become the slaves of the Greater German World Empire. The evidence establishes that this occupation policy was based on the complete destruction of Poland as a national entity and a ruthless exploitation of its human and economic resources for the German war effort."

[B. Evidentiary comment:]

P.2.4. Evidence of trafficking in women.

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, para. 542:

"542. [] Further indications of enslavement include []the exaction of forced or compulsory labour or service []often, though not necessarily [] involving [] human trafficking.[]"

Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:

"107. As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: "the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs."^[19]"

[B. Evidentiary comment:]

P.2.5. Evidence of trafficking in children.

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, para. 542:

"542. [] Further indications of enslavement include []the exaction of forced or compulsory labour or service []often, though not necessarily [] involving [] human trafficking.[]"

Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:

[B. Evidentiary comment:]

P.2.6. Evidence that the victim could not leave, despite a lack of physical restraints.

A. Legal source/authority and evidence:

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 255:

"255. Lastly, as to the crime of enslavement, the Trial Chamber found that the women at Trnovace "were not free to go where they wanted to even if, as FWS-191 admitted, they were given the keys to the house at some point".

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001

, paras. 740, 750:

"740. The Trial Chamber further accepts that the witnesses were not free to go where they wanted to, even if, as FWS-191 admitted, they were given the keys to the house at some point. Referring to the factual findings with regard to the general background , the Trial Chamber accepts that the girls, as described by FWS-191, had nowhere to go, and had no place to hide from Dragoljub Kunarac and DP 6, even if they had attempted to leave the house. []"

"750. [] Only when the men were there would the door of the apartment be left open. Notwithstanding the fact that the door may have been open while the men were there, the Trial Chamber is satisfied that the girls were also psychologically unable to leave, as they would have had nowhere to go had they attempted to flee. They were also aware of the risks involved if they were re-captured."

Update to the Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, at para. 50, U.N. Doc. No. E/CN.4/Sub.2/2000/21 (2000):

"50. The Special Rapporteur understands that based on customary law interpretations of the crime of slavery, and thus sexual slavery, there are no requirements of any payment or exchange; of any physical restraint, detention or confinement for any set or particular length of time; nor is there a requirement of any legal disenfranchisement. [] It is the status or condition of being enslaved which differentiates sexual slavery from other crimes of sexual violence, such as rape. One respect in which slavery differs from imprisonment or arbitrary detention is that the limitations on autonomy can be solely psychological or situational, with no physical restraints."

Eve La Haye, "Article 8 (2) (b) (xxii)-2 - Sexual Slavery", in Roy S. Lee, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), p. 191:

"[I]t was stressed by some delegations that the expression similar deprivation of liberty does not exclude certain situations, which took place during the Rwandese and Bosnian conflicts, in which women, sexually abused, were not locked in a particular place and therefore were free to go, but were in fact deprived of their liberty as they had nowhere else to go and feared for their lives."

[B. Evidentiary comment:]

P.2.7. Evidence of assignment to a person or treatment as personal property.

A. Legal source/authority and evidence:

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 7:

"7. Finally, with regard to Counts 18 to 20 (crimes against humanity (enslavement and rape) and violation of the laws or customs of war (rape)), on 2 August 1992, Kunarac raped FWS-191 and aided and abetted the rape of FWS-186 by the soldier DP 6 in an abandoned house in Trnovace. [] While FWS-191 and FWS-186 were kept at the Trnovace house, Kunarac and DP 6 deprived the women of any control over their lives and treated them as their property. Kunarac established these living conditions for FWS-191 and FWS-186 in concert with DP 6, and both Kunarac and DP 6 personally committed the act of enslavement. []"

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC)

, 22 February 2001, paras. 36, 225, 742, 781

"36. Witnesses described how, as soon as they arrived at Foca High School, women and girls were either taken out of the school, or into the classrooms where they were raped.¹¹⁶ They would sometimes be raped together. Each one of them would be assigned to a soldier and raped by him. []"

"116. FWS-50, T 1249-1254; FWS-75, T 1397-1405; FWS-87, T 1676-1687; FWS-95, T 2206-2211, FWS-48, T 2645-2652 and FWS-105, T 4221-4224. Some other women were not raped but testified about seeing other women being taken out and coming back: FWS-52, T 873; FWS-51, T 1134-1137; FWS-62, T 975-979; FWS-96, T 2524-2529; D.B., T 3786-3790."

"225. D.B. recalled that she was brought to the house in Miljevina⁶⁵⁸ by a certain "Misko". [] Upon her arrival, each soldier took one girl exclusively for himself. The witness herself was selected by Radovan Stankovic, who raped her constantly during her stay in the house.⁶⁶² []"

"658. Which she identified on Ex P11, photograph 7355 - T 3818.
662. T 3830-3832."

"742. The Trial Chamber is satisfied that FWS-191 and FWS-186 were denied any control over their lives by Dragoljub Kunarac and DP 6 during their stay there. [] The two women were treated as the personal property of Kunarac and DP 6. The Trial Chamber is satisfied that Kunarac established these living conditions for the victims in concert with DP 6. Both men personally committed the act of enslavement. []

"781. The Trial Chamber finds that Radomir Kovacs conduct towards the two women was wanton in abusing and humiliating the four women and in exercising his de facto power of ownership as it pleased him. Kovac disposed of them in the same manner. For all practical purposes, he possessed them, owned them and had complete control over their fate, and he treated them as his property. []"

Report of the Special Rapporteur on the situation of human rights in the Democratic Republic of the Congo, U.N. Doc. No. E/CN.4/2003/43, 15 April 2003,:

"66. Girls are enlisted into armed groups, either as child soldiers or as wives of combatants, the victims of forced marriages. The cases that have been brought to the Special Rapporteurs attention amount to slavery by reason of the treatment meted out to these women, who become the private property of the soldiers. []"

[B. Evidentiary comment:]

P.2.8. Evidence of controlling other peoples access to the victim.

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. 39, 587, 759:

"39. [] FWS-95 stated, however, that one guard once tried without success to stop soldiers from entering the hall. The soldiers told him that they had a document signed by Dragan Gagovic which allowed them to enter the hall and to take women out; the document allegedly stated that soldiers needed to have sexual intercourse to improve their fighting spirit.¹²³ FWS-48 stated that some soldiers told her that they were ordered to rape their victims .¹²⁴"

"123. T 2217-2219. See also FWS-105, T 4244.
124. T 2700."

"587. While four girls, FWS-75, FWS-87, A.B. and A.S., were kept in his apartment , the accused Radomir Kovac abused them and raped three of them many times, thereby perpetuating the attack upon the Muslim civilian population. Kovac would also invite his friends to his apartment, and he sometimes allowed them to rape one of the girls."

"759. [] The Trial Chamber finds that the accused Radomir Kovac had sexual intercourse with the two women in the knowledge that they did not consent, and that he substantially assisted other soldiers in raping the two women. He did this by allowing other soldiers to visit his apartment and to rape the women or by encouraging the soldiers to do so, and by handing the girls over to other men in the knowledge that they would rape them and that the girls did not consent to the sexual intercourse. []"

[B. Evidentiary comment:]

5.1.2.B enefits obtained by committing the crime of enslavement.

P.3. Evidence of benefit to the perpetrator.

P.3.1. Evidence of the accruing of some gain.

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, para. 542:

"542. Under this definition, indications of enslavement include [] often, the accruing of some gain to the perpetrator []"

[] the "acquisition" or "disposal" of someone for monetary or other compensation is not a requirement for enslavement. Doing so, however, is a prime example of the exercise of the right of ownership over someone."

[B. Evidentiary comment:]

5.2. Imp ossibility of the person to take decisions voluntarily.

5.2.1.Ab sence of free will or real choice while taking decisions

P.4. Evidence of lack of consent or free will.

P.4.1. Evidence of fear of violence.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 194:

"194. [] 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."

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 359, 377, 740:

"359. [] In essence, the determination of whether protected persons laboured involuntarily is a factual question which has to be considered in light of all the relevant circumstances on a case by case basis. 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 fear of violence [] ⁹⁶⁸

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

"968.

P.4.2. Evidence of threat of force.

, par 542."

"377. [] 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."

Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 14:

"14. With respect to the general phenomenon, they mentioned that these labor conditions generally affect seasonal agricultural workers [] held against their will through violence []"

[B. Evidentiary comment:]

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 359:

"359. [] in essence, the determination of whether protected persons laboured involuntarily is a factual question which has to be considered in light of all the relevant circumstances on a case by case basis. 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 [] Kunarac Trial Judgment, par 542."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 68, 210, 542:

"68. [] During her time in the apartment, the girls were frequently threatened with murder ; they were locked up and had no contact whatsoever with the outside world.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 194:

"194. [] the Appeals Chamber is satisfied that the detainees worked [] in the hope of obtaining additional food.[]"

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 359:

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 [].

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

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 742:

"742. "The Trial Chamber is satisfied that FWS-191 and FWS-186 were denied any control over their lives by Dragoljub Kunarac and DP 6 during their stay there. They had to obey all orders, they had to do household chores and they had no realistic option whatsoever to flee the house in Trnovace or to escape their assailants.[]"

Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005, para. 107:

The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example [] deception [].

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

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 542:

"542. Under this definition, indications of enslavement include elements of control and ownership; the restriction or control of an individuals 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, [] deception or false promises; []"

Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 15:

"15. [] when they discover that they were deceived its too late, for they cannot leave the estate or stop working until they pay their "debts" []"

Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: paras. 107,108:

"108. [] the victims of trafficking are tricked by criminals: representatives of criminal mafias, often people of respectable appearance who pass themselves off as businessmen, make contact with the victims, and offer them work in a country of destination.[]^[20]"

"20. See Chapter V, Third Progress Report of the Rapporteurship on Migrant Workers and Their Families, IACHR. www.cidh.org/annualrep/2001sp/cap.6.htm."

Annual Report of the Inter-American Commission on Human Rights 2001, OEA/Ser./L/V/II.114 doc. 5 rev.) 16 April 2001, paras. 126, 127:

"126. []Unlike migrant smuggling or guiding operations, which, as explained, entail a mutually agreed commercial transaction, for the Rapporteurship human trafficking implies [] deceit []^[79]"

"79. Kyle and Dale, Id. pp. 32-4."

"127. Members of these criminal organizations frequently deceive people to lure them to use their services []"

[B. Evidentiary comment:]

P.4.6. Evidence of false promises.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 359:

The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example [] false promises [].

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

[B. Evidentiary comment:]

P.4.7. Evidence of fraud.

A. Legal source/authority and evidence:

United States of America v. Erhard Milch, Case No. 2, Judgement (Military Tribunal No. II), 16 April 1947, reproduced in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Proceedings, Vol. 2 (1949-53), p. 789

"It was sought to disguise the harsh realities of the German foreign labor policy by the use of specious legal and economic terms, and to make such policy appear as the exercise of conventional labor relations and labor law. The fiction a "labor contract" was frequently resorted to, especially in the operations of the Todt Organisation, which implied that foreign workers were given a free choice to work or not to work for German military industry. This, of course, was purely fictitious, as is shown by the fact that thousands of these "contract workers" jumped from the trains transporting them to Germany and fled into the woods. Does anyone believe that the vast hordes of Slavic Jews who labored in Germanys war industries were accorded the rights of contracting parties? []"

Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 14, 15:

"14. With respect to the general phenomenon, they mentioned that these labor conditions generally affect seasonal agricultural workers recruited with fraudulent promises []"

15. They alleged that the methods used to effectively deprive them of their liberty are [] a scheme of indebtedness that is a genuine trap. Once they reach the estate they realize that the promises with which they were hired, based on a price per hectare worked that has already been agreed upon are false, since the work in general is much more difficult than anticipated. []"

Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:

[B. Evidentiary comment:]

P.4.8. Evidence of abuse of power.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 359:

The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example [] the abuse of power [...].

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

Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005, para. 107:

[B. Evidentiary comment:]

P.4.9. Evidence of giving or receiving of payments to achieve the consent of the person in control.

A. Legal source/authority and evidence:

Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005, para. 107:

[B. Evidentiary comment:]

P.4.10. Evidence of the victims position of vulnerability.

A. Legal source/authority and evidence:

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003

, para. 259:

"259. As a result of the foregoing, the Chamber will have to determine on a case by case basis whether the forms of labour alleged in the Indictment were indeed undertaken voluntarily or whether the detainees were compelled to do so. To determine whether a person was not in a position to make a "real choice"⁶⁹⁵ to undertake labour in contravention of the law, the following criteria may be considered, in accordance with previous jurisprudence: [] (b) the vulnerable position in which the detainees found themselves; []"

"695.

P.4.11. Evidence of socio-economic conditions.

Judgement, para 372.

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 359, 373:

The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example [] the victims position of vulnerability [].

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

"373. In considering whether an individual detainee was forced to work, the Trial Chamber considers the following factors to be relevant: [] the vulnerable position in which the detainees found themselves []."

Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:

[B. Evidentiary comment:]

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 359:

The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example [] socio-economic conditions.⁹⁶⁸

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

"968.

, par 542."

Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 14:

14. [] many of these workers are poor and illiterate farmers or persons known as "sem terra," or landless rural poor from the states of Northeast Brazil, where jobs are hard to come by."

Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 108:

"108. [] the victims of this type of crime are usually people with little education, no resources, family or connections, who in their desperation become embroiled in these operations without any information at all.^[20]"

"20. See Chapter V, Third Progress Report of the Rapporteurship on Migrant Workers and Their Families, IACHR. Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 259:

"259. As a result of the foregoing, the Chamber will have to determine on a case by case basis whether the forms of labour alleged in the Indictment were indeed undertaken voluntarily or whether the detainees were compelled to do so. To determine whether a person was not in a position to make a "real choice"695 to undertake labour in contravention of the law, the following criteria may be considered, in accordance with previous jurisprudence: [] (e) the fact and the conditions of detention;⁶⁹⁶ []"

"695.

Judgement, para 372.

696.

P.5. Not required: Evidence that the victim did not consent to the enslavement.

Judgement, para 373."

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 372, 380, 386 387:

"372. The Prosecution alleges that the detainees who were called out to work were forced to do so and that their work was involuntary and unpaid. It is claimed that even ill or injured detainees were forced to work, that those who refused were sent to solitary confinement and that when working they were guarded by the regular prison guards of the KP Dom or soldiers from outside the KP Dom.1001 Having considered all the relevant evidence, the Chamber is not satisfied that the general circumstances in the KP Dom during the Accuseds 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."

"1001. Indictment, para 5.42."

"380. [] 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."

"386. [] The Trial Chamber has already considered the evidentiary value of FWS-249s subjectively expressed opinions about whether the work he undertook was forced.Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 63, 68, 751, 780:

"63. [] They were also forced to do household chores like washing, cooking, laundering and cleaning. []"

"68. [] While in the apartment, the girls were obliged to cook, clean and wash clothes.²⁰⁶"

"206. T 1830-1831."

"751. While they were detained in Radomir Kovacs apartment, the girls were required to take care of the household chores, the cooking and the cleaning."

"780. [] Radomir Kovac detained FWS-75 and A.B. for about a week, and FWS-87 and A.S. for about four months in his apartment, by locking them up and by psychologically imprisoning them, and thereby depriving them of their freedom of movement. During that time, he had complete control over their movements, privacy and labour. He made them cook for him, serve him and do the household chores for him. []"

[B. Evidentiary comment:]

A. Legal source/authority and evidence:

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 120:

"120. In these respects, the Appeals Chamber rejects the Appellants 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. [] 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."

Update to the Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, U.N. Doc. No. E/CN.4/Sub.2/2000/21, 6 June 2000, para. 51:

"51. [] As a jus cogens crime, neither a State nor its agents, including government and military officials, can consent to the enslavement of any person under any circumstances. Likewise, a person cannot, under any circumstances, consent to be enslaved or subjected to slavery. Thus, it follows that a person accused of slavery cannot raise consent of the victim as a defence.⁶¹"

"61. In the International Criminal Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda, the rules of procedure and evidence provide that in cases involving sexual assault, consent shall not be allowed as a defence if the victim had been subjected to or threatened with violence, duress, detention or psychological oppression. International Criminal Tribunal for the Former Yugoslavia, Rules of procedure and evidence, as amended on 25 July 1997, rule 96 (Evidence in cases of sexual assault); International Tribunal for Rwanda, Rules of procedure and evidence, adopted on 29 June 1995, Rule 96 (Rules of evidence in cases of sexual assault). See also final report, para. 25. "The manifestly coercive circumstances that exist in all armed conflict situations establish a presumption of non-consent and negates the need for the prosecution to establish a lack of consent as an element of the crime." Further, a defence of consent clearly should not be allowed when the sexual assault is charged and prosecuted as slavery, crimes against humanity, genocide, torture or other jus cogens crimes to which issues of consent are irrelevant."

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

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

P.6. Evidence of control of someones movement or their physical environment.

P.6.1. Evidence of deprivation of the right to move.

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. 339, 525, 542, 780:

"339. [] A.S. further testified that the girls were not free to go where they wanted while they were kept in the house.⁹³⁶"

"936. A.S. par 206."

"525. [] As to non-Jewish foreign labour , with few exceptions they were deprived of the basic civil rights of free men; they were deprived of the right to move freely or to choose their place of residence ; [] All these are the sign -marks of slavery, not free employment under contract.¹²⁷²

"1272. Ibid, p 789. Milch was found guilty of war crimes charged inCountone of the indictment in that he was responsible for the "slave labor and deportation to slave labor of the civilian populations of countries and territories occupied by the German armed forces, and in the enslavement, deportation, ill-treatment and terrorization of such persons. [...]." (ibid, p 790). Milch was also found guilty of crimes against humanity (count three) for the same war crimes insofar as they related to foreign nations (ibid, pp 790-791). With reference to the definition of the crimes in CCL 10, Judge Fitzroy D Phillips in his concurring opinion stated that CCL 10 treats as separate crimes and different types of crime deportation to slave labour (as a war crime) and enslavement (as a crime against humanity) (ibid, Concurring Opinion, p 860 at p 866). In the Krupp case (

US v Krupp and Others, Judgement of 31 July 1948

, reprinted in Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No 10, Vol IX, Part 2 (1997), p 1327), the US Military Tribunal adopted the statement of the law applicable to the deportation to slave labour and enslavement of the Milch case made by Judge Phillips (ibid, pp 1432-1433). In that case, the Tribunal also held that the employment of concentration camp inmates under the circumstances disclosed was a crime (ibid, pp 1433-1435)."

"542. Under this definition, indications of enslavement include [] the restriction or control of an individuals autonomy, [] freedom of movement []"

"780. [] [T]he Trial Chamber is satisfied that the events described in paragraph 11.6 of the Indictment have been proved beyond reasonable doubt. Radomir Kovac detained FWS-75 and A.B. for about a week, and FWS-87 and A.S. for about four months in his apartment, by locking them up and by psychologically imprisoning them, and thereby depriving them of their freedom of movement. []"

Annual Report of the Inter-American Commission on Human Rights 2001, OEA/Ser./L/V/II.114 doc. 5 rev.) 16 April 2001, para. 126:

"126. [] these organizations also impose slave-like conditions on people by forcing them to work [] as sex workers without [] freedom of movement.[]^[79]"

[B. Evidentiary comment:]

P.6.2. Evidence of solitary confinement.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:

"193.[] the KP Dom had the capacity to house more than the maximum 500-700 non-Serbs detained, but the detainees were crowded into a small number of rooms. Solitary confinement cells designed to hold one person were packed with up to 18 people at a time, making it impossible for the detainees to move around the cell, or to sleep lying down²⁹⁹[]

[] they were kept in various rooms, including solitary confinement cells []³⁰⁰"

[] Any attempts made by non-Serb detainees to improve their living conditions in the camp were punished with solitary confinement.[]³⁰⁹"

"299. Ibid., para. 135.

300. Ibid., para. 43.

309. Ibid., para. 142."

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003

, para. 259:

Krnojelac Trial Judgement

, para 372."

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 373:

"373. In considering whether an individual detainee was forced to work, the Trial Chamber considers the following factors to be relevant: [] the allegations that detainees who were unable or unwilling to work were either forced to or put in solitary confinement []."

[B. Evidentiary comment:]

P.6.3. Evidence of the restriction of freedom of choice.

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. 43, 225, 542:

"43. [] The other two women stayed in the Trnovace house for approximately six months. During this period, the women had no control whatsoever over their lives and choices.¹³⁹"

"139. See FWS-191, T 3182; FWS-186, T 2952."

"225. [] The women could not leave the house and had no choice or control over their fate.⁶⁶³"

"542. Under this definition, indications of enslavement include [] the restriction or control of an individuals autonomy, freedom of choice []"

[B. Evidentiary comment:]

P.6.4. Evidence that the person has been deprived of the exercise of other rights.

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, para. 525:

"525. [] As to non-Jewish foreign labour , with few exceptions they were deprived of the basic civil rights of free men;[] to live in a household with their families; to rear and educate their children ; to marry; to visit public places of their own choosing; to negotiate, either individually or through representatives of their own choice, the conditions of their own employment ; to organize in trade unions; to exercise free speech or other free expression of opinion; to gather in peaceful assembly; and they were frequently deprived of their right to worship according to their own conscience. All these are the sign -marks of slavery, not free employment under contract.¹²⁷²"

US v Krupp and Others, Judgement of 31 July 1948

, reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, Vol IX, Part 2 (1997), p 1327), the US Military Tribunal adopted the statement of the law applicable to the deportation to slave labour and enslavement of the Milch case made by Judge Phillips (ibid, pp 1432-1433). In that case, the Tribunal also held that the employment of concentration camp inmates under the circumstances disclosed was a crime (ibid, pp 1433-1435)."

[B. Evidentiary comment:]

P.6.5. Evidence of being guarded by armed soldiers/persons.

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 794, 834:

"794. Prosecution witnesses testified that while working, they were guarded by armed soldiers. Witnesses who had to dig trenches, build bunkers or work on other military sites,¹⁸⁰⁵as well as witnesses who had to do farm work, to work in factories or had other non-military assignments were guarded by armed soldiers,¹⁸⁰⁶often from the 4th Detachment.¹⁸⁰⁷Witness G testified that sometimes the armed guards caught people who tried to escape and beat them badly.¹⁸⁰⁸"

"834. [] it has been established that this work was not rendered voluntarily. Civilians were compelled to work under the supervision of armed guards,¹⁹⁴³[]"

"1943. Esad Dagovic, T. 3925; Witness L, T. 4282; Nusret Hadzijusufovic, T. 6876, T. 6881, T. 6886; Safet Dagovic, T. 7201; Kemal Mehinovic, T. 7398-99."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 750:

"750. The Trial Chamber is satisfied that the girls could not and did not leave the apartment without one of the men accompanying them. []"

[B. Evidentiary comment:]

P.6.6. Evidence of being supervised by agents.

A. Legal source/authority and evidence:

United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946

, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 489:

"[] they were subject to constant supervision by the Gestapo and the SS []"

[B. Evidentiary comment:]

P.6.7. Evidence of withholding of benefits/payments.

A. Legal source/authority and evidence:

United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946

, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 489:

" [] theoretically at least the workers were paid, house, and fed by the DAF, and even permitted to transfer their savings and to send mail and parcels back to their native country; but restrictive regulations took a proportion of the pay []"

[B. Evidentiary comment:]

P.7. Evidence of psychological control.

P.7.1. Evidence of psychological oppression.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:

"193. [] the conditions of detention were physically taxing and the non-Serb detainees were generally subject to a psychologically exhausting regime while detained at the KP Dom. []

-The non-Serb detainees were subjected to harrowing psychological abuse during their period of detention at the KP Dom. The detainees were exposed to the sounds of torture and beatings over a period of months, in particular in June and July 1992, and they constantly feared that they would be the next to be selected;³¹⁰ []"

"310. Ibid., para. 143"

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 359:

The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example [] psychological oppression [] ⁹⁶⁸

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

"968.

P.7.2. Evidence of psychological restraints.

, par 542."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 747:

"747. [] Paragraph 11.2 alleges that Radomir Kovac detained FWS-75 and A.B. - between about 31 October 1992 until December 1992 - and FWS-87 and A.S. - from the same date until February 1993 - in a apartment over which he had control. The Indictment alleges that, while being so kept, the girls had to perform household chores, that they were frequently [] psychologically oppressed and kept in constant fear."

[B. Evidentiary comment:]

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. 750, 780:

"750. [] Notwithstanding the fact that the door may have been open while the men were there, the Trial Chamber is satisfied that the girls were also psychologically unable to leave, as they would have had nowhere to go had they attempted to flee. They were also aware of the risks involved if they were re-captured."

"50. The Special Rapporteur understands that based on customary law interpretations of the crime of slavery, and thus sexual slavery, there are no requirements of any payment or exchange; of any physical restraint, detention or confinement for any set or particular length of time; nor is there a requirement of any legal disenfranchisement. [] One respect in which slavery differs from imprisonment or arbitrary detention is that the limitations on autonomy can be solely psychological or situational, with no physical restraints."

[B. Evidentiary comment:]

P.7.3. P.7.3. Evidence that the victim felt she was treated like property.

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, para. 264:

"264. FWS-191 testified that "Zaga" came to the house in Trnovace until the end of September. [] She felt like she was his property. []"

P.8. Evidence of control of sexuality.

P.8.1. Evidence of rape.

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. 542, 554, 739, 741:

"542. [] Further indications of enslavement include [] the exaction of forced or compulsory labour or service [] often, though not necessarily [] sex []"

"554. The Prosecutor does not submit that convictions for rape and enslavement under Article 5 based on the same conduct should be entered against the accused. The alleged repeated violations of the sexual integrity of the victims, by various means, is one of the main factors to be considered when determining whether enslavement was committed.¹³⁵⁷ She states that

The main characteristic of the enslavement exercised by the accused Kunarac and Kovac was the sexual exploitation of the girls and women. All the controls exerted served that purpose. Repeated violations of the victims sexual integrity, through rape and other sexual violence, were some of the most obvious exercises of the powers of ownership by the accused.¹³⁵⁸ []"

"1357. Prosecutors Final Trial Brief, pars 800-807.

1358. Prosecutors Final Trial Brief, par 801."

"739 The Trial Chamber accepts from FWS-191 that the girls at Trnovace did anything they were ordered to do by the soldiers while being kept there. The testimonies of both FWS-191 and FWS-186 substantiated convincingly that the girls were kept in the house to be used by Dragoljub Kunarac and DP 6 for sexual services whenever the soldiers returned to the house."

"741. The Trial Chamber is satisfied that it has been proven beyond reasonable doubt that FWS-191 was raped by Dragoljub Kunarac and that FWS-186 was raped by DP 6, continuously and constantly whilst they were kept in the house in Trnovace.[]"

B. Evidentiary comment:

This evidence itself is not enough to prove the existence of the crime of enslavement. Indeed, as stated in paragraph 186 of Kunarac Appeal Judgment, "enslavement even if based on sexual exploitation, is a distinct offence from that of rape []"

P.8.2. Evidence of enforced prostitution.

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, para. 542:

"542. [] Further indications of enslavement include [] the exaction of forced or compulsory labour or service [] often, though not necessarily [] prostitution []"

The Trial Chamber is satisfied that it has been proven beyond reasonable doubt that FWS-191 was raped by Dragoljub Kunarac and that FWS-186 was raped by DP 6, continuously and constantly whilst they were kept in the house in Trnovace. Kunarac in fact asserted his exclusivity over FWS-191 by forbidding any other soldier to rape her."

Annual Report of the Inter-American Commission on Human Rights 2001, OEA/Ser./L/V/II.114 doc. 5 rev.) 16 April 2001, para. 126:

"126.[] these organizations also impose slave-like conditions on people by forcing them to work [] as sex workers []^[79]"

"79. Kyle and Dale, Id. pp. 32-4."

[B. Evidentiary comment:]

P.9. Evidence of measures taken to prevent or deter escape.

P.9.1. Evidence of keeping somebody in captivity/detention.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 359:

"359.[] in essence, the determination of whether protected persons laboured involuntarily is a factual question which has to be considered in light of all the relevant circumstances on a case by case basis. 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 [] detention or captivity []⁹⁶⁸

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

"968.

United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946

, par 542."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 527, 542, 740:

"527.[] after being recruited, the labourers were transported to and confined in camps. Little or no distinction appears to have been made between these conscripted labourers on the one hand and prisoners of war and civilian internees on the other hand. They were all regarded as slave labourers to be used to the limit of their endurance. For this reason, we have included these conscripted labourers in the term "civilian internees" whenever that term is used in this chapter.¹²⁸¹"

"1281. Ibid, pp 416-417 (the Chapter referred to is Chapter VIII ("Conventional War Crimes (Atrocities)") of the judgement."

"542. [] Detaining or keeping someone in captivity, without more, would, depending on the circumstances of a case, usually not constitute enslavement."

"740. The Trial Chamber is satisfied that Kunarac and DP 6, both being Serb soldiers in the Foca area, were fully aware of this fact. The Trial Chamber accepts the evidence of FWS-191 and FWS-186 that the girls performed household chores for the soldiers whilst under captivity."

, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 489:

"[] the employers were [] ordered, if possible, to house them in stables, not in their own homes. []"

[B. Evidentiary comment:]

P.9.2. Evidence that the person was locked up.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:

"193. [] Many non-Serb detainees were taken out of the KP Dom during the period covered by the Indictment, allegedly to be exchanged or in order to carry out certain tasks such as picking plums. Many of them did not come back and were never seen again;³⁰⁵ []"

"305. Ibid., para. 48."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 780:

Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 108:

"108. [] the victims agree to travel to the country of destination without papers. Once a person has agreed to the terms, the operation swings into action: the traffickers smuggle the workers into the country of destination and once there, keep them locked up []^[20]"

"20. See Chapter V, Third Progress Report of the Rapporteurship on Migrant Workers and Their Families, IACHR. Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:

"193. [] there was a deliberate policy of isolating detainees within the KP Dom. Only those detainees given work assignments were permitted to spend prolonged periods outside of their rooms. Detainees who were taken to work assignments outside of the KP Dom were kept isolated in a separate room to prevent news about the "outside world" from spreading among the other detainees. To ensure compliance with these unwritten "rules" on communication, violations were punished with solitary confinement and /or mistreatment, such as beatings;³⁰⁷"

"307. Ibid., para. 134."

Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 15:

"15. [] the estates are far from any transportation, so its not easy to flee."

[B. Evidentiary comment:]

P.9.4. Evidence of confiscation of passports.

A. Legal source/authority and evidence:

Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 108:

"108.[] the victims agree to travel to the country of destination without papers. Once a person has agreed to the terms, the operation swings into action: the traffickers smuggle the workers into the country of destination and once there [] take away their travel documents if these are legitimate, and force them into farm work.[]^[20]"

"20. See Chapter V, Third Progress Report of the Rapporteurship on Migrant Workers and Their Families, IACHR.

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001

, para. 542:

"542. [] Further indications of enslavement include exploitation []".

United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946

, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 489:

"Under the authority [of Hitler] Sauckel set up a programme for the mobilisation of the labour resources available to the Reich. One of the important parts of this mobilisation was the systematic exploitation, by force, of the labour resources of the occupied territories []."

"The resources and needs of the occupied countries were completely disregarded in carrying out this policy. The treatment of the laborers was governed by Sauckels instructions of 20 April 1942 to the effect that- All the men must be fed, sheltered and treated in such a way as to exploit them to the highest possible extent, at the lowest conceivable degree of expenditure."

Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005, para. 107:

"107. As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: "the recruitment, transportation, transfer, harbouring or receipt of persons [] for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs."^[19]"

Annual Report of the Inter-American Commission on Human Rights 2001, OEA/Ser./L/V/II.114 doc. 5 rev.) 16 April 2001, para. 126:

"126. []Unlike migrant smuggling or guiding operations, which, as explained, entail a mutually agreed commercial transaction, for the Rapporteurship human trafficking implies elements of violence, coercion, and deceit with the intention to exploit people (usually women and children) []^[79]"

"79. Kyle and Dale, Id. pp. 32-4."

[B. Evidentiary comment:]

P.10.2. Evidence of punishment.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:

"193. [] Many of the detainees were subjected to beatings and other forms of mistreatment, sometimes for no reason, sometimes as a punishment for minor breaches of the prison regulations or in order to obtain information or a confession from them.[]³⁰⁴ []"

"304. Ibid., para. 46."

United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946

, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 489:

"[] the evidence relating to the Krupp Works in Essen showed that punishments of the most cruel kind were inflicted on the workers []"

"[] in the case of the Pole employed on farms in Germany, the employers were given authority to inflict corporal punishment []"

[B. Evidentiary comment:]

P.10.3. Evidence of poor sanitary conditions.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:

"193. [] hygienic conditions were deplorable and washing facilities minimal, while medical care was inadequate and medicine in very short supply. A basic medical service was provided but those in need of urgent medical attention were left unattended or given insufficient treatment. At least one detainee died as a result of the lack of or late medical care;³⁰²[]"

"302. Ibid., para. 44."

United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946

, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 489:

" [] the camps in which they were housed were insanitary [sic] []"

Bert R?ling and C. F. Ruter, eds, The Tokyo Judgement: The International Military Tribunal for the Far East (1977), p. 416:

"The lot of these conscripted labourers was made worse by the fact that generally they were ignorant of the principles of hygiene applicable to their unusual and crowded conditions and succumbed more readily to the diseases resulting from the insanitary [sic] conditions of conferment and work forced upon them by their Japanese captors."

[B. Evidentiary comment:]

P.10.4. Evidence of inhumane conditions of work.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 373:

"373. In considering whether an individual detainee was forced to work, the Trial Chamber considers the following factors to be relevant: [] the fact of detention and the inhumane conditions in the KP Dom."

United States of America v. Friedrich Flick et al., Case No. 5, Judgement

(Military Tribunal No. IV), 22 December 1947, reproduced in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Proceedings, Vol. 6 (1949-53), p. 1198

"The charges in this count to the effect that the laborers thus employed in the defendants plants were exploited by the defendants under inhuman conditions with respect to their personal liberty []"

Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 12, 14:

"12. In this respect, they noted that in September 1989 the victim, then 17 years of age, as well as 60 other workers, were held against their will and forced to work [] in inhuman and illegal conditions.[]"

"14. With respect to the general phenomenon, they mentioned that these labor conditions generally affect seasonal agricultural [] forced to work in inhuman conditions. []"

[B. Evidentiary comment:]

P.10.5. Evidence of inhumane/degrading/cruel treatment.

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 91:

"91. The Trial Chamber notes that certain types of forced labour may amount to cruel and inhumane treatment if the conditions under which the labour is rendered are such as to create danger for the life or health of the civilians, or may arouse in them feelings of fear, and humiliation. It should be noted here that the principle of humane treatment enshrined in the Geneva Conventions implies an obligation for the occupying powers to protect civilians against inhumane acts.¹⁶⁶ Forcing protected persons to work in life-threatening circumstances fails to meet the obligation for protection against acts of violence and may result in inflicting upon these persons physical and mental suffering. It has been held that placing detainees in life-threatening situations constitutes cruel and inhuman treatment. ^167"

"166.

Celebici Trial Judgement

, para. 528.

167 -

Blaskic Trial Judgement

, para. 700."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 780:

"780. [] Radomir Kovac detained FWS-75 and A.B. for about a week, and FWS-87 and A.S. for about four months in his apartment, by locking them up and by psychologically imprisoning them, and thereby depriving them of their freedom of movement. [] He subjected them to degrading treatments, including beatings and other humiliating treatments."

[B. Evidentiary comment:]

P.10.6. Evidence of lack or small portions of food.

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 796:

"796. A number of witnesses testified that while performing forced labour they did not receive any food,¹⁸²⁵or received one meal a day.¹⁸²⁶One Prosecution witness, Witness G, testified that her family received "packages" from the work obligation.^1827"

"1825. Esad Dagovic,T. 3924-25; Witness L, T. 4294.

1826. Witness K, T. 4649; Witness M, T. 5070; Nusret Hadzijusufovic, T. 6881, T. 6927, T. 6928. Safet Dagovic, T. 7208, T. 7238.

1827. Witness G, T. 4155."

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:

"193. [] the conditions under which non-Serbs were detained were below any legal standard regulating the treatment of civilians in times of armed conflict. Non-Serb detainees were given insufficient food, as a result of which many of them suffered substantial weight loss, sometimes more than 40 kilograms or up to a third of their weight.[] There was a deliberate policy to feed the non-Serb detainees barely enough for their survival. All non-Serb detainees suffered considerable weight loss ranging from 20 to 40 kilograms during their detention at the KP Dom Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 259:

Krnojelac Trial Judgement

, para 378."

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 373, 378:

"373. In considering whether an individual detainee was forced to work, the Trial Chamber considers the following factors to be relevant: [] claims of longer term consequences of the labour []"

"378. The physical consequences of the work on the health of the detainees, if any, also constitutes a factor relevant to the determination as to whether someone was forced to work. However, the evidence adduced on this point is also equivocal. FWS-249 gave evidence that he and the other working detainees were exhausted after work, and that he personally suffers from back problems.¹⁰²¹ He said that his doctors assumed that these problems resulted from the physical work at the KP Dom.¹⁰²² However, as established above, the Trial Chamber is not satisfied that his back problems are a direct consequence of the labour he performed while at the KP Dom.¹⁰²³ FWS-142 testified that he was exhausted and had no strength when asked in September 1993 by Savo Todovic whether he would work in the Miljevina mine.¹⁰²⁴ This incident took place after the Accuseds administration."

"1021. FWS-249 (T 4431-4433).

1022. FWS-249 (T 4433).

1023. See par 153, supra.

1024. FWS-142 (T 1831-1832)"

[B. Evidentiary comment:]

P.10.8. Evidence of exposure to dangerous conditions.

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 800:

"800. A number of witnesses forced to dig trenches or to work on other military sites close to or on the frontline were exposed to direct gunfire, sniper fire, shelling, and other dangerous military "exchange."¹⁸⁴⁸Frequently the workers were located between the two enemy lines and were exposed to crossfire.¹⁸⁴⁹Esad Dagovic was not allowed to hide during the crossfire.^1850"

"1848. Safet Dagovic, T. 7192, T. 7194; Nusret Hadzijusufovic, T. 6884; Kemal Mehinovic, T 7402-03; Witness C, T. 7910-12.

1849. Witness M, T. 5050-51; Witness L, T. 4286; Nusret Hadzijusufovic, T. 6877, T. 6885, T. 6889-90.

1850. Esad Dagovic, T. 3924."

[B. Evidentiary comment:]

P.10.9. Evidence of lack of remuneration.

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 795:

"795. Prosecution witnesses testified that they were never paid for the work they did. Esad Dagovic,¹⁸¹¹Witness L,¹⁸¹²Witness K and her family,¹⁸¹³Witness M,¹⁸¹⁴Witness N and his son,¹⁸¹⁵Nusret Hadzijusufovic,¹⁸¹⁶Safet Dagovic,¹⁸¹⁷Kemal Mehinovic,¹⁸¹⁸Witness C,¹⁸¹⁹Jelena Kapetanovic,¹⁸²⁰Ediba Bobi cs son,¹⁸²¹and Witness Gs oldest brother,¹⁸²²Snjezana Delics brother in law,¹⁸²³and Hasan Subasics mother¹⁸²⁴were not paid for their work. Most of them were not asked to keep a record of their working hours, nor were they aware of anybody keeping a record of their work."

"1811. Esad Dagovic, T. 3923.

1812 - Witness L, T. 4294.

1813 - Witness K, T. 4729.

1814 - Witness M, T 5111.

1815 - Witness N, T. 6196-97.

1816 - Nusret Hadzijusufovic, T. 6926.

1817 - Safet Dagovic, T. 7198.

1818 - Kemal Mehinovic, T. 7402-03, T. 7465-66.

1819 - Witness C, T. 7913.

1820 - Jelena Kapetanovic, T. 10291-92, T. 10310

1821 - Ediba Bobic, T. 11262, T. 11276.

1822 - Witness G, T. 4154.

1823 - Snjezana Delic, T. 6448.

1824 - Hasan Subasic, T. 10971."

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003

, para. 259:

Krnojelac Trial Judgement

, para 372.

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 373, 374:

"374. The Trial Chamber is satisfied that, except for the extra food which the working detainees received and the cigarettes that some of them sometimes received, their work was substantially uncompensated.

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001

, para. 542:

"542. [] Further indications of enslavement include [] the exaction of forced or compulsory labour or service, often without remuneration []"

Van der Mussele v. Belgium, Application No. 8919/80, Judgement (Merits) (European Court of Human Rights), 23 November 1983, para. 40:

"40. []The Court has not overlooked this aspect of the problem. While remunerated work may also qualify as forced or compulsory labour, the lack of remuneration and of reimbursement of expenses constitutes a relevant factor when considering what is proportionate or in the normal course of affairs. []"

Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 12:

"12. In this respect, they noted that in September 1989 the victim, then 17 years of age, as well as 60 other workers, were held against their will and forced to work without remuneration []"

Annual Report of the Inter-American Commission on Human Rights 2001, OEA/Ser./L/V/II.114 doc. 5 rev.) 16 April 2001, para. 126:

"126. [] these organizations also impose slave-like conditions on people by forcing them to work [] as sex workers without pay []^[79]"

[B. Evidentiary comment:]

P.10.10. Evidence of disproportionate work.

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 834:

"834. The Trial Chamber is satisfied that civilians who had to report every day in front of the Pensioners Home as well as civilians who were detained¹⁹³⁸were forced to dig trenches,¹⁹³⁹build bunkers,¹⁹⁴⁰carry sandbags or railway sleepers for the construction of trenches, ¹⁹⁴¹and build other fortifications¹⁹⁴²on the frontline[] ^"

"1938. Osman Jasarevic, Rule 92bis Statement, para. 108.

1939.Esad Dagovic, T. 3923; Witness L, T. 4281; Witness M, T. 5042-43; Nusret Hadzijusufovic, T. 6876, T. 6881-83, Safet Dagovic, T. 7190-91, T. 7193, T. 7200, T. 7216; Kemal Mehinovic, T. 7399-00, Exhibit P9J.

1940 - Nusret Hadzijusufovic, T. 6875; Kemal Mehinovic, T. 7400.

1941 - Esad Dagovic, T. 5914; Witness C, T. 7909."

Van der Mussele v. Belgium, Application No. 8919/80, Judgement (Merits) (European Court of Human Rights), 23 November 1983, para. 37:

"37. [] if the service imposed a burden which was so excessive or disproportionate to the advantages attached to the future exercise of that profession, that the service could not be treated as having been voluntarily accepted beforehand; this could apply, for example, in the case of a service unconnected with the profession in question."

[B. Evidentiary comment:]

P.10.11. Evidence of long working hours.

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 794:

"794. A number of Prosecution witnesses testified that they had to work every day for at least 10 and 12 hours, and sometimes at night.¹⁸⁰⁹Defence witnesses testified that civilians with work assignments worked during the day, between 8.30-9.00 a.m. and 4.00 p.m., 6.00 p.m., or 9.00 p.m.^1810"

"1809. Esad Dagovic, T. 3922-23; Witness K, T. 4646-47; Witness M, T. 5068; Safet Dagovic, T. 7193, T. 7205.

1810. Dusan Gavric, T. 17330, T. 17366; Witness DW 2/3, T. 14479. Mirko Lukic, T. 12749; Exhibits D75/1, D104 A/1, D104B/1, D 104C/1, D104D/1, D 104E/1."

Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003

, para. 259:

"259. As a result of the foregoing, the Chamber will have to determine on a case by case basis whether the forms of labour alleged in the Indictment were indeed undertaken voluntarily or whether the detainees were compelled to do so. To determine whether a person was not in a position to make a "real choice"⁶⁹⁵ to undertake labour in contravention of the law, the following criteria may be considered, in accordance with previous jurisprudence: [] (d) claims of longer term consequences of the labour; []"

"695.

5.3.2. Elements showing how control has been applied.

Judgement, para 372."

[B. Evidentiary comment:]

P.11. Evidence of the duration.

P.11.1. Evidence of duration of the exercise of powers of ownership.

A. Legal source/authority and evidence:

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 121:

"121 [] the Trial Chamber found that the duration of the detention is another factor that can be considered but that its importance will depend on the existence of other indications of enslavement.¹⁴⁹ 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."

"149. Ibid., para 542."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 542, 732:

"542. [] the duration of the suspected exercise of powers attaching to the right of ownership is another factor that may be considered when determining whether someone was enslaved; however, its importance in any given case will depend on the existence of other indications of enslavement []"

"732. The Trial Chamber is satisfied that FWS-191 and FWS-186 were kept in the Trnovace house for five to six months, a period that the Trial Chamber accepts as falling under the time frame set out in the Indictment as "approximately 6 months".

[B. Evidentiary comment:]

P.11.2. Evidence of long periods of detention.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:

"193. [] the KP Dom held several hundred Muslim civilian men, who were detained there for periods lasting from four months to more than two and a half years²⁹⁸ []"

"298. Judgment, para. 40."

[B. Evidentiary comment:]

P.12. Evidence of assertion of exclusivity.

P.12.1. Evidence of the exclusivity of the control.

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, para. 741:

"741. [] Kunarac in fact asserted his exclusivity over FWS-191 by forbidding any other soldier to rape her []."

[B. Evidentiary comment:]

5.4. Use or threat of violence.

P.13. Evidence of the use of force, threat of force or coercion during enslavement.

P.13.1. Evidence of physical violence.

A. Legal source/authority and evidence:

The Prosecutor v. Dominic Ongwen, Decision on the confirmation of charges against Dominic Ongwen 23 March 2016

, para. 111-112, 136-139:

"111. (P-101) testified on 9 and 10 November 2015 (ICC-02/04-01/15-T-13-CONF-ENG and -T-14-CONF-ENG). She testified that she had been in captivity with the LRA for eight years from her abduction in August 1996 by Dominic Ongwen and other LRA fighters until her escape in July 2004. The day she was abducted, Dominic Ongwen forced her to become his so-called "wife" and continued to have sex with her by force repeatedly until her escape. She was beaten when she refused to have sex with him, and at no time was she able to escape. As his so-called "wife", Dominic Ongwen also made her perform domestic duties for him, including cooking and fetching and chopping wood. As a result of rapes by Dominic Ongwen, (P-101) became pregnant three times. The second and third of her pregnancies fall within the Courts temporal jurisdiction, and for the duration of both these pregnancies she remained confined to Dominic Ongwens household without the possibility of escape.

112. In light of the available evidence, the Chamber considers that there are substantial grounds to believe that Dominic Ongwen committed pursuant to article 25(3)(a) of the Statute against (P-101), between July 2002 and July 2004, the crime of other inhumane acts as a crime against humanity in the form of forced marriage pursuant to article 7(1)(k) of the Statute (charge 50); the crime of torture as a crime against humanity pursuant to article 7(1)(f) of the Statute (charge 51) and as a war crime pursuant to article 8(2)(c)(i) of the Statute (charge 52); the crime of rape as a crime against humanity pursuant to article 7(1)(g) of the Statute (charge 53) and as a war crime pursuant to article 8(2)(e)(iv) of the Statute (charge 54); the crime of sexual slavery as a crime against humanity pursuant to article 7(1)(g) of the Statute (charge 55) and as a war crime pursuant to article 8(2)(e)(vi) of the Statute (charge 56); the crime of enslavement as a crime against humanity pursuant to article 7(1)(c) of the Statute (charge 57); as well as the crime of forced pregnancy as a crime against humanity pursuant to article 7(1)(g) of the Statute (charge 58) and as a war crime pursuant to article 8(2)(e)(vi) of the Statute (charge 59) during her two pregnancies within the relevant time.

136. Under charges 61 to 68 the Prosecutor alleges Dominic Ongwens criminal responsibility for the abduction of girls and women to serve as domestic servants, forced exclusive conjugal partners and sexual slaves in the Sinia brigade. The LRA practice of abduction of women for the purpose of turning them into forced so-called "wives" of LRA fighters, involving the systemic commission of a series of sexual and gender based crimes, is well established in the evidence before the Chamber. It should be added that, in line with the charges, the factual analysis of the Chamber is confined to this practice as it occurred within the Sinia brigade between 1 July 2002 and 31 December 2005. For its conclusions, the Chamber has reviewed the transcripts of the testimonies of Dominic Ongwens so-called "wives" (P-99, P-101, P-214, P-226, P-227, P-235 and P-236), who observed the relevant facts within the group in which they were confined, as well as the statements of numerous other witnesses who were also present in the Sinia brigade and able to observe this practice and the conduct of Dominic Ongwen in relation to it (P-142, P-199, P-202, P-205, P-233 and P-250). The Chamber has also taken note of the records of intercepted LRA radio communications for the dates of 1 April 2003, 2 April 2003, 10 March 2004, 4 August 2004, 26 June 2005 and 10 July 2005.

137. This evidence demonstrates that there was a common plan between Joseph Kony and the senior leadership of the Sinia brigade, including Dominic Ongwen, to abduct women and girls in order for them to serve as forced "wives", domestic servants and sex slaves to male LRA fighters. Between 1 July 2002 and 31 December 2005, women and girls were systematically abducted in northern Uganda in line with this plan. They were distributed to LRA fighters as so-called "wives" with no choice on their part and were regularly raped by their so-called "husbands" for protracted periods of time. Also, their movement was confined and they were forced to perform various domestic duties. They lived under constant threat of death or severe physical punishment if they failed to respect the exclusivity of the socalled "marriage" imposed on them, if they did not submit to sexual intercourse, if they tried to escape, or if they failed to perform any other duty assigned to them. Indeed, they were regularly beaten as punishment, coercion or intimidation.

138. The evidence is clear as to the fact that this conduct was ordered by Joseph Kony. The execution of the order in the Sinia brigade depended, however, on the conduct of the brigades commanders. The Chamber finds that the practice described above was an inherent design feature of the LRA and that no leading role in the LRA could be obtained or sustained without knowledge of the practice and without an intent to perpetuate it. Indeed, according to the evidence, Dominic Ongwen issued specific orders for abduction of women and girls, regulated the distribution of victims to LRA fighters, and maintained, within his authority as commander of first the Oka battalion and later the Sinia brigade, a disciplinary system which created the coercive environment in which the conduct in question was possible.

139. In light of the available evidence, the Chamber considers that the objective elements of the following crimes are sufficiently established by the evidence: other inhumane acts as a crime against humanity in the form of forced marriage pursuant to article 7(1)(k) of the Statute (charge 61); torture as a crime against humanity pursuant to article 7(1)(f) of the Statute (charge 62) and as a war crime pursuant to article 8(2)(c)(i) of the Statute (charge 63); rape as a crime against humanity pursuant to article 7(1)(g) of the Statute (charge 64) and as a war crime pursuant to article 8(2)(e)(vi) of the Statute (charge 65); sexual slavery as a crime against humanity pursuant to article 7(1)(g) of the Statute (charge 66) and as a war crime pursuant to article 8(2)(e)(vi) of the Statute (charge 67); and enslavement as a crime against humanity pursuant to article 7(1)(c) of the Statute (charge 68)."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 210, 525, 749:

"210. A.S. stayed in Radomir Kovacs apartment for about a month or two. [] Jagos Kostic would rape her anytime he wanted, orally and vaginally, and she had no choice but to comply with his demands; he would also sometimes beat her and once threatened to cut her throat.⁶²¹ []"

"621. T 2018."

"525. []

, in considering war crimes and crimes against humanity charges, succinctly held as follows:

"749. The Trial Chamber is also satisfied that, while kept in Radomir Kovacs apartment, these girls were constantly raped, humiliated and degraded. They were sometimes beaten, slapped or threatened by one of the occupants of the apartment. The accused Kovac once slapped FWS-75 because she refused to sleep with a soldier whom he had brought in. Twelve-year old A.B. was sent in her place. Kovac also beat FWS-75 up on other occasions."

Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 15:

"15. They alleged that the methods used to effectively deprive them of their liberty are violence pure and simple []"

Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005, para. 108:

"108. [] intimidation and violence are routinely used in such cases. The victims of trafficking who resist are physically attacked []^[20]"

"621. T 2018."

Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 15:

"15. [] they are threatened, told theyll be killed if they try to escape. []"

Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 108:

"108. [] aware of the victims fear and ignorance of their rights and situation as migrants, the members of these criminal bands also threaten to hand their victims over to the authorities, telling them that they will have to serve long prison sentences for illegally entering the countries where they are working.[]^[20]"

"20. See Chapter V, Third Progress Report of the Rapporteurship on Migrant Workers and Their Families, IACHR. Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 834:

"834. [] it has been established that this work was not rendered voluntarily. Civilians were compelled to work under the supervision of armed guards,¹⁹⁴³who beat []those who tried to escape.¹⁹⁴⁴[]"

"1943. Esad Dagovic, T. 3925; Witness L, T. 4282; Nusret Hadzijusufovic, T. 6876, T. 6881, T. 6886; Safet Dagovic, T. 7201; Kemal Mehinovic, T. 7398-99.

1944. Witness G, T. 4091-92"

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193, 194:

"193. [] Many of the detainees were subjected to beatings [] sometimes for no reason, [] Many were returned to their rooms with visible wounds and bruises resulting from the beating;Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 360:

"360. The Trial Chamber is not satisfied that FWS-73, Aziz Telo, Atif Jaserevic and Mustafa Telo were forced to work on the Accuseds house. FWS-73s evidence that he was kicked to work once for having refused to work has already been addressed. It is not clear what work it was to which that evidence related,

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001

, para. 525:

"525. []

P.13.6. Evidence of starvation.

, in considering war crimes and crimes against humanity charges, succinctly held as follows:

Slavery may exist even without torture. []We might eliminate all proof of [] beatings []"

Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 108:

"108. [] the victims of trafficking who resist are [] beaten and even murdered. The victims of this type of crime are usually people with little education, no resources, family or connections, who in their desperation become embroiled in these operations without any information at all.^[20]"

"834. [] it has been established that this work was not rendered voluntarily. Civilians were compelled to work under the supervision of armed guards,¹⁹⁴³who [] fired at those who tried to escape.¹⁹⁴⁴[]"

"1943. Esad Dagovic, T. 3925; Witness L, T. 4282; Nusret Hadzijusufovic, T. 6876, T. 6881, T. 6886; Safet Dagovic, T. 7201; Kemal Mehinovic, T. 7398-99.

1944 - Witness G, T. 4091-92."

Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 12:

"12. [] when they sought to escape from the estate, the young Pereira and another worker were fired upon by rifle-fire by the contractor and his armed aides, in retaliation for fleeing. They added that José Pereira suffered gunshot wounds, but miraculously survived, his assailants leaving him for dead. They said that the other worker accompanying him, known only by his nickname "Paraná," was hit by the gunfire and killed. Their bodies were dumped on a lot near where they were taken in a pick-up truck by the killers. Pereira made his way to a near-by estate and received care, and was able to file his complaint. He argues that the case is illustrative of a more general practice of "slave" labor and of the lack of judicial guarantees and labor security, which make this practice widespread."

[B. Evidentiary comment:]

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, para. 525:

"525. []

P.13.7. Evidence of ill-treatment.

, in considering war crimes and crimes against humanity charges, succinctly held as follows:

Slavery may exist even without torture [] we might eliminate all proof of [] overlook the starvation."

[B. Evidentiary comment:]

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, para. 525:

"525. []

US v Carl Krauch and Others

, in considering war crimes and crimes against humanity charges, succinctly held as follows:

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.US v Oswald Pohl and Others, Judgement of 3 November 1947, reprinted in Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No 10, Vol V, (1997), p 958 at p 970. Other CCL 10 cases in which enslavement and related aspects were considered, include IG Farben (

), summarised in Law Reports of Trials of War Criminals, The UN War Crimes Commission, Vol X (1997), pp 1-68 at 53; and Flick (

US v Friedrich Flick and Others

), reprinted in Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No 10, Vol VI (1997)."

Evan Julian et al. v. New Zealand, Communication No. 601/1994, Decision (Human Rights Committee), 29 April 1997, UN Doc. CCPR/C/59/D/601/1994, para. 2.5:

"2.5 As a consequence of the barbaric conditions in the camps, the released prisoners were in bad physical condition, suffered severely from malnutrition with vitamin deficiency diseases such as beri-beri and pellagra, malaria and other tropical diseases, tuberculosis, tropical sores and the effects of physical ill-treatment. It is submitted that as a direct consequence, the New Zealand Veterans still suffer significant residual disabilities and incapacities."

[B. Evidentiary comment:]

P.13.8. Evidence of physical hardship.

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, para. 542:

"542. [] Further indications of enslavement include []the exaction of forced or compulsory labour or service []often, though not necessarily involving physical hardship; sex; prostitution ; and human trafficking. []"

[B. Evidentiary comment:]

P.13.9. Evidence of menace of any penalty.

A. Legal source/authority and evidence:

Van der Mussele v. Belgium, Application No. 8919/80, Judgement (Merits) (European Court of Human Rights), 23 November 1983, paras. 34-35:

"34. [] on this point, the minority of the Commission agreed with the majority. What there has to be is work "exacted ... under the menace of any penalty" and also performed against the will of the person concerned, that is work for which he "has not offered himself voluntarily."

"35. The definition given in Article 2 § 1 of ILO Convention No. 29 leads the Court to inquire firstly whether there existed in the circumstances of the present case "the menace of any penalty". Had Mr. Van der Mussele refused without good reason to defend Mr. Ebrima, his refusal would not have been punishable with any sanction of a criminal character. On the other hand, he would have run the risk of having the Council of the Ordre strike his name off the roll of pupils or reject his application for entry on the register of avocats (see paragraph 19 above); these prospects are sufficiently daunting to be capable of constituting "the menace of [a] penalty", having regard both to the use of the adjective "any" in the definition and to the standards adopted by the ILO on this point ("Abolition of Forced Labour": General Survey by the Committee of Experts on Application of Conventions and Recommendations, 1979, paragraph 21)."

[B. Evidentiary comment:]

P.13.10. Evidence of oppression.

A. Legal source/authority and evidence:

Van der Mussele v. Belgium, Application No. 8919/80, Judgement (Merits) (European Court of Human Rights), 23 November 1983, para. 37:

"37. On the basis of jurisprudence of its own which dates back to 1963 (admissibility decision on application no. 1468/62, Iversen v. Norway, Yearbook of the Convention, vol. 6, pp. 327-329) and which it has subsequently re-affirmed, the Commission expressed the opinion that for there to be forced or compulsory labour, for the purposes of Article 4 § 2 (art. 4-2) of the European Convention, two cumulative conditions have to be satisfied: not only must the labour be performed by the person against his or her will, but either the obligation to carry it out must be "unjust" or "oppressive" []"

[B. Evidentiary comment:]

P.13.11. Evidence of harassment.

A. Legal source/authority and evidence:

Mar?a Mej?a v. Guatemala, Case No. 10.553, Report No. 32/96, OEA/Ser.L/V/II.95 Doc. 70 rev., Decision, (Inter-American Commission on Human Rights), 16 October 1996, para. 63:

"63. [] in addition, in reprisal for working with the CERJ and refusing to work with the PACs, military commissioners and PAC members [] harassed continuously the members of the Parraxtut Segundo community, forcing 39 persons to leave their homes in that community, and attacked Am?lcar Méndez and members of the community when they attempted to return to their homes on March 27, 1990. These reprisals for having refused to serve in the PACs amount to clear violations of Article 6.2 of the Convention."

Van der Mussele v. Belgium, Application No. 8919/80, Judgement (Merits) (European Court of Human Rights), 23 November 1983, para. 37:

"37. On the basis of jurisprudence of its own which dates back to 1963 (admissibility decision on application no. 1468/62, Iversen v. Norway, Yearbook of the Convention, vol. 6, pp. 327-329) and which it has subsequently re-affirmed, the Commission expressed the opinion that for there to be forced or compulsory labour, for the purposes of Article 4 § 2 (art. 4-2) of the European Convention, two cumulative conditions have to be satisfied: not only must the labour be performed by the person against his or her will, []its performance must constitute "an avoidable hardship", in other words be "needlessly distressing" or "somewhat harassing". []"

[B. Evidentiary comment:]

P.13.12. Evidence of other forms of mistreatment/barbarous acts.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:

"193. [] Many of the detainees were subjected to [] other forms of mistreatment, sometimes for no reason []

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001

, paras. 525, 742:

"525. []