Table of contents
6. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.
6.1. Causation by the perpetrator.
6.1.1. The perpetrator directly caused the person to engage in acts of a sexual nature.
P.14. Evidence that the perpetrator directly caused acts of a sexual nature to occur.
P.14.1. Evidence that the perpetrator participated in acts of a sexual nature with the victim.
P.14.2. Evidence that a perpetrator ordered others to carry out acts of a sexual nature.
P.14.3. Evidence that the perpetrator assisted others in carrying out acts of a sexual nature.
6.1.2. The perpetrator placed victims in a situation where acts of a sexual nature would occur.
P.15.1. Evidence of "forced marriage".
P.15.2. Evidence of comfort stations.
P.15.3. Evidence of rape camps.
P.15.4. Evidence of domestic servitude requiring sexual activity.
6.2. Engagement in acts of a sexual nature.
6.2.1. Evidence of the forms of engagement that the perpetrator caused.
P.16.1. Evidence that a victim was forcibly raped by the perpetrator.
P.17.1. Evidence that a victim was forced to perform sexual acts on the perpetrator.
P.17.2. Evidence that the victim was forced to bathe the perpetrator.
P.18.1. Evidence that victims were forced to undress together.
P.18.2. Evidence that victims were forced to dance together while the perpetrator watched.
6.3.1. The perpetrator caused acts of a sexual nature to occur.
P.19.1. Evidence of rape or forcible sexual intercourse.
P.19.2. Evidence of gang rape.
P.19.3. Evidence of public rape or rape in front of family members.
P.19.4. Evidence of coerced performance of conjugal duties.
P.20. Evidence of other acts that of a sexual nature.
P.20.1. Evidence of the forcible removal of clothing.
P.20.2. Evidence that the victim was forced to dance naked.
P.20.3. Evidence that the victim was forced to dress in provocative clothing.
P.20.4. Evidence that the victim was forced to bathe the perpetrator.
P.21. Evidence of the results of sexual acts.
P.21.1. Evidence of sexually-transmitted diseases.
P.21.2. Evidence of pregnancy.
Element
6. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.
6.1.Ca usation by the perpetrator.
6.1.1. The perpetrator directly caused the person to engage in acts of a sexual nature.
P.14. Evidence that the perpetrator directly caused acts of a sexual nature to occur.
P.14.1. Evidence that the perpetrator participated in acts of a sexual nature with the victim.
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. 267:
"267. [ ] In connection with the abuses of FWS-75 and A.B., the Appellant was found to have raped them, to have let other soldiers into his apartment to rape them, and to have handed them over to other soldiers in the knowledge that they would be raped.380 In relation to the sufferings of FWS-87 and A.S., the Trial Chamber found that they had been repeatedly raped during the four-month period.381 [ ]"
"380 - Ibid., para 759.
381 - Ibid., paras 760 and 765."
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, 761:
"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."
"761. The Trial Chamber is satisfied that it has been proven beyond reasonable doubt that, while in Radomir Kovacs apartment, FWS-87 was raped by both Kovac and Jagos Kostic. Kovac reserved FWS-87 for himself and raped her almost every night he spent in the apartment. Jagos Kostic constantly raped A.S., and he took advantage of Kovacs absence to rape FWS-87 too. He threatened her that if she reported this to Radomir Kovac he would kill her. Kovac knew at all times that the girls did not consent to the sexual intercourse. Jagos Kostic could rape A.S. because she was held by Kovac in his apartment. Kovac therefore also substantially assisted Jagos Kostic in raping A.S., by allowing Jagos Kostic to stay in his apartment and to rape A.S. there. [ ]"
[B. Evidentiary comment:]
P.14.2. Evidence that a perpetrator ordered others to carry out acts of a sexual nature.
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. 39:
"39. [ ] 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."
[B. Evidentiary comment:]
P.14.3. Evidence that the perpetrator assisted others in carrying out acts of a sexual nature.
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, 219, 761:
"39. [ ] 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 [ ]"
"123. T 2217-2219. See also FWS-105, T 4244."
"219. After these events, "Gaga" told her to have a shower because his commander was coming, and he threatened to kill her if she did not satisfy the commanders desires. He repeated this when the accused Dragoljub Kunarac walked in.646 D.B. took off the trousers of the accused, kissed him all over the body, and then had vaginal intercourse with the accused. D.B. said she felt terribly humiliated because she had to take an active part in the events,647 which she did out of fear because of "Gagas" threats earlier on [ ]"
"646. T 3804-3805.
647. T 3807-3808."
"761. The Trial Chamber is satisfied that it has been proven beyond reasonable doubt that, while in Radomir Kovacs apartment, FWS-87 was raped by both Kovac and Jagos Kostic. [ ] Jagos Kostic could rape A.S. because she was held by Kovac in his apartment. Kovac therefore also substantially assisted Jagos Kostic in raping A.S., by allowing Jagos Kostic to stay in his apartment and to rape A.S. there. [ ]"
[B. Evidentiary comment:]
6.1.2. The perpetrator placed victims in a situation where acts of a sexual nature would occur.
P.15.1. Evidence of "forced marriage".
A. Legal source/authority and evidence:
Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, at para. 30, U.N. Doc. No. E/CN.4/Sub.2/1998/13 (1998):
"30. [ ] Sexual slavery also encompasses situations where women and girls are forced into "marriage" [ ]. For instance, in addition to the cases documented in Rwanda and the former Yugoslavia, there are reports from Myanmar of women and girls who have been raped and otherwise sexually abused after being forced into "marriages" or forced to work as porters or minefield sweepers for the military16"
"16. See for example, Betsy Apple, School for Rape: The Burmese Military and Sexual Violence (1998), p. 49."
Machteld Boot, "Rape or any other form of sexual violence of comparable gravity", in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999), marginal note 47:
"Sexual Slavery thus also encompasses situations where women and girls are forced into "marriage", domestic servitude or other forced labour that ultimately involves forced sexual activity, including rape by their captors111."
"111. 1998 Slavery Rapporteur Report, supra note 101, para. 30. See also Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, Ms. Radhika Coomaraswamy, U.N. Doc. E/CN.4/1998/54, para. 42."
[B. Evidentiary comment:]
P.15.2. Evidence of comfort stations.
A. Legal source/authority and evidence:
Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, at para. 30, U.N. Doc. No. E/CN.4/Sub.2/1998/13 (1998):
"30. [ ] The "comfort stations that were maintained by the Japanese military during the Second World War (see appendix) and the "rape camps" that have been well-documented in the former Yugoslavia15 are particularly egregious examples of sexual slavery."
"15. For example, see ICTFY, Indictment of Gagovic and Others, case IT-96-23-I (26 June 1996) [hereinafter Foca indictment]."
[B. Evidentiary comment:]
P.15.3. Evidence of rape camps.
A. Legal source/authority and evidence:
Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, at para. 30, U.N. Doc. No. E/CN.4/Sub.2/1998/13 (1998):
"30. [ ] The "comfort stations that were maintained by the Japanese military during the Second World War (see appendix) and the "rape camps" that have been well-documented in the former Yugoslavia15 are particularly egregious examples of sexual slavery."
"15. For example, see ICTFY, Indictment of Gagovic and Others, case IT-96-23-I (26 June 1996) [hereinafter Foca indictment]."
[B. Evidentiary comment:]
P.15.4. Evidence of domestic servitude requiring sexual activity.
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. 739:
"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."
Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, at para. 30, U.N. Doc. No. E/CN.4/Sub.2/1998/13 (1998):
"30. [ ] Sexual slavery also encompasses situations where women and girls are forced into "marriage", domestic servitude or other forced labour that ultimately involves forced sexual activity, including rape by their captors. For instance, in addition to the cases documented in Rwanda and the former Yugoslavia, there are reports from Myanmar of women and girls who have been raped and otherwise sexually abused after being forced into "marriages" or forced to work as porters or minefield sweepers for the military16. In Liberia, there are similar reports of women and girls who have been forced by combatants into working as cooks and who are also held as sexual slaves.17"
"16. See for example, Betsy Apple, School for Rape: The Burmese Military and Sexual Violence (1998), p. 49.
17. Coomaraswamy, (E/CN.4/1998/54, para. 42). It is clear that many victims of sexual slavery and sexual violence during armed conflict are children. Ms Gra?a Machel, the expert appointed by the Secretary-General to undertake a study on the impact of armed conflict on children, stated in her final report (A/51/306 of 26 August 1996, para. 45):
"In Guatemala, rebel groups use girls to prepare food, attend to the wounded and wash clothes. Girls may also be forced to provide sexual services. In Uganda, girls who are abducted by the Lords Resistance Army are married off to rebel leaders. If the man dies, the girl is put aside for ritual cleansing and then married off to another rebel.""
[B. Evidentiary comment:]
6.2. Engagement in acts of a sexual nature.
6.2.1. Evidence of the forms of engagement that the perpetrator caused.
A. Evidentiary comment:
It should be noted that forms of engagement discussed below may not cover all the situations where it would be appropriate to enter a conviction for sexual slavery. For example, situations where two male victims are forced to have sexual intercourse with each other are not uncommon during armed conflicts. Such situations have not yet arisen in the jurisprudence of the ICTY or the ICTR, so the ICC may rapidly expand the means of proof acceptable for showing forms of engagement.
P.16.1. Evidence that a victim was forcibly raped by the perpetrator.
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. 68, 210, 761:
"68. FWS-87 testified that she stayed at the apartment of Radomir Kovac in the Lepa Brena block for about four months, and had almost daily contact with him. She was raped by him vaginally and orally almost every night, and sometimes also by Jagos Kostic who lived in the apartment together with the accused Kovac. FWS-75 was also raped by Radomir Kovac, and A.S. would generally be raped by Jagos Kostic.204 [ ]"
"204. T 1712 and T 1832."
"210. [ ] During her stay she would sleep in one room with Jagos Kostic, while FWS-87 would sleep in the same room as Kovac; she could hear when he raped FWS-87.620 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 [ ]"
[B. Evidentiary comment:]
P.17.1. Evidence that a victim was forced to perform sexual acts on the perpetrator.
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 219:
"219. After these events, "Gaga" told her to have a shower because his commander was coming, and he threatened to kill her if she did not satisfy the commanders desires. He repeated this when the accused Dragoljub Kunarac walked in.646 D.B. took off the trousers of the accused, kissed him all over the body, and then had vaginal intercourse with the accused. D.B. said she felt terribly humiliated because she had to take an active part in the events,647 which she did out of fear because of "Gagas" threats earlier on [ ]"
"646. T 3804-3805.
647. T 3807-3808."
[B. Evidentiary comment:]
P.17.2. Evidence that the victim was forced to bathe the perpetrator.
[B. Evidentiary comment:]
P.18.1. Evidence that victims were forced to undress together.
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 70:
"70. FWS-87 recalled several incidents when she had to strip in front of Radomir Kovac. She stated that on one occasion in Radomir Kovacs apartment, she, FWS-75 , A.S. and A.B. had to undress and stand beside each other, while Radomir Kovac and Jagos Kostic, who were both armed at the time, looked at them.208"
"208. T 1713."
[B. Evidentiary comment:]
P.18.2. Evidence that victims were forced to dance together while the perpetrator watched.
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 86, 773:
"86. Like FWS-87, witness A.S. recalled one incident, which she could not tie to an exact date, when she, together with FWS-87 and A.B. was ordered to strip by Radomir Kovac and forced to dance naked. A.S. could not recall, however, whether FWS-75 was amongst this group and whether there were other soldiers besides Kovac and Jagos Kostic.246"
"246. See par 211."
"773. The accused Radomir Kovac certainly knew that, having to stand naked on a table , while the accused watched them, was a painful and humiliating experience for the three women involved, even more so because of their young age. The Trial Chamber is satisfied that Kovac must have been aware of that fact, but he nevertheless ordered them to gratify him by dancing naked for him."
[B. Evidentiary comment:]
6.3.1.The perpetrator caused acts of a sexual nature to occur.
P.19.1. Evidence of rape or forcible sexual intercourse.
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, paras. 132, 267:
"132. For the most part, the Appellants in this case were convicted of raping women held in de facto military headquarters, detention centres and apartments maintained as soldiers residences. As the most egregious aspect of the conditions, the victims were considered the legitimate sexual prey of their captors. Typically, the women were raped by more than one perpetrator and with a regularity that is nearly inconceivable. (Those who initially sought help or resisted were treated to an extra level of brutality). Such detentions amount to circumstances that were so coercive as to negate any possibility of consent."
"267. [ ] In connection with the abuses of FWS-75 and A.B., the Appellant was found to have raped them, to have let other soldiers into his apartment to rape them, and to have handed them over to other soldiers in the knowledge that they would be raped.380 In relation to the sufferings of FWS-87 and A.S., the Trial Chamber found that they had been repeatedly raped during the four-month period.381 [ ] In the case of FWS-87 and A.S., for instance, the Trial Chamber was satisfied that the former was raped "almost every night" by the Appellant when he spent the night at his apartment and that the Appellants flatmate, Jagos Kostic, "constantly raped A.S.".382 [ ]"
"380 - Ibid., para 759.
381 - Ibid., paras 760 and 765.
382 - Ibid., para 761."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 41, 63, 68, 210, 290, 374, 735:
"41. Some of the women from Partizan and Kalinovik High School were at some point moved to different houses and apartments where they continued to be raped and mistreated. In particular, at "Karamans house" in Miljevina, soldiers had easy access to women and girls whom they raped. FWS-75, FWS-87, A.S., FWS-132, FWS-190, D.B. and other women were kept in this house for some time.
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001
, paras. 70, 86:"70. FWS-87 recalled several incidents when she had to strip in front of Radomir Kovac. She stated that on one occasion in Radomir Kovacs apartment, she, FWS-75, A.S. and A.B. had to undress and stand beside each other, while Radomir Kovac and Jagos Kostic, who were both armed at the time, looked at them.208"
"208. T 1713."
"86. Like FWS-87, witness A.S. recalled one incident, which she could not tie to an exact date, when she, together with FWS-87 and A.B. was ordered to strip by Radomir Kovac and forced to dance naked. A.S. could not recall, however, whether FWS-75 was amongst this group and whether there were other soldiers besides Kovac and Jagos Kostic.246"
"246. See par 211."
[B. Evidentiary comment:]
P.20.2. Evidence that the victim was forced to dance naked.
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. 86, 773:
"86. Like FWS-87, witness A.S. recalled one incident, which she could not tie to an exact date, when she, together with FWS-87 and A.B. was ordered to strip by Radomir Kovac and forced to dance naked. A.S. could not recall, however, whether FWS-75 was amongst this group and whether there were other soldiers besides Kovac and Jagos Kostic.246"
"246. See par 211."
"773. The accused Radomir Kovac certainly knew that, having to stand naked on a table , while the accused watched them, was a painful and humiliating experience for the three women involved, even more so because of their young age. The Trial Chamber is satisfied that Kovac must have been aware of that fact, but he nevertheless ordered them to gratify him by dancing naked for him."
[B. Evidentiary comment:]
P.20.3. Evidence that the victim was forced to dress in provocative clothing.
P.20.4. Evidence that the victim was forced to bathe the perpetrator.
A. Legal source/authority and evidence:
[B. Evidentiary comment:]
P.21. Evidence of the results of sexual acts.
P.21.1. Evidence of sexually-transmitted diseases.
A. Legal source/authority and evidence:
Abduction of Children from Northern Uganda: Report of the Secretary-General, U.N. Doc. No. E/CN.4/Sub.2/1999/69 (1999) at paras. 5, 23:
"5. [ ] Smaller children may be given chores to do and girls as young as 12 are given to commanders as "wives". Each solder may have several such wives, and many of the children have become pregnant and have contracted sexual diseases."
"23. [ ] Approximately 85 per cent of girls arrive at the Centre suffering from sexually transmitted diseases."
[B. Evidentiary comment:]
P.21.2. Evidence of pregnancy.
A. Legal source/authority and evidence:
Abduction of Children from Northern Uganda: Report of the Secretary-General, U.N. Doc. No. E/CN.4/Sub.2/1999/69 (1999) at paras. 5, 23:
"5. [ ] Smaller children may be given chores to do and girls as young as 12 are given to commanders as "wives". Each solder may have several such wives, and many of the children have become pregnant and have contracted sexual diseases."
"23. [ ] Approximately 85 per cent of girls arrive at the Centre suffering from sexually transmitted diseases."
[B. Evidentiary comment:]
P.21.3. Evidence of genital mutilation.
A. Legal source/authority and evidence:
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. 16, U.N. Doc. No. E/CN.4/Sub.2/2000/21 (2000):
"16. In June 1999, the Special Rapporteur participated in a two-day mission to Sierra Leone at the invitation of the United Nations High Commissioner for Human Rights. [ ] These and numerous other testimonies reveal that sexual slavery and other forms of sexual violence, including [ ] sexual mutilations [ ], were systematic and widespread during the armed conflict, with rebel soldiers committing the vast majority of the reported abuses.20"
"20. See Human Rights Watch, Getting Away with Murder, Mutilation, and Rape: New Testimony from Sierra Leone (June 1999), pp. 9, 31-38:
"Throughout the occupation, the rebels perpetrated organized and widespread sexual violence against girls and women. The rebels launched operations in which they rounded up girls and women, brought them to rebel command centres, and subjected them to individual and gang-rape. The sexual abuse was frequently characterized by extreme brutality. Young girls under seventeen, and particularly virgins, were specifically targeted, and hundreds of them were later abducted by the rebels", p.9."
[B. Evidentiary comment:]
