Table of contents
P.26. Evidence inferred from an utterance, a document or a deed.
P.26.1. Evidence that the perpetrator participated in acts of a sexual nature.
P.26.2. Evidence that the perpetrator ordered acts of a sexual nature.
P.27. Evidence inferred from a circumstance.
P.27.1. Evidence that the perpetrator encouraged the commission of acts of a sexual nature.
P.27.2. Evidence that the perpetrator was present while acts of a sexual nature were occurring.
P.27.3. Evidence that acts of a sexual nature took place in the perpetrators apartment.
Element
8.b.i. [Mental element for Element 4] [Consequence of causing such persons to engage in acts of a sexual nature: ] The perpetrator meant to cause such person or persons to engage in one or more acts of a sexual nature;OR
P.26. Evidence inferred from an utterance, a document or a deed.
P.26.1. Evidence that the perpetrator participated in 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. 589:
"589. [ ] Vukovic also knew of the rapes which were being perpetrated , as he himself raped FWS-50 that very day in Buk Bijela. Although this rape is not charged in Indictment IT-96-23/1 and will not be considered for conviction or sentencing purposes, it shows Vukovics knowledge of and willing participation in the attack upon the Muslim civilians."
Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, at para. 79, U.N. Doc. No. E/CN.4/Sub.2/1998/13 (1998):
"79. [ ] Of course, a commander who participates in or is present during the commission of acts of sexual violence is directly liable as a perpetrator, or may be charged with aiding and abetting the commission of the crime."
[B. Evidentiary comment:]
P.26.2. Evidence that the perpetrator ordered acts of a sexual nature.
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. 76, U.N. Doc. No. E/CN.4/Sub.2/1998/13 (1998):
"76. Under the legal doctrine of command responsibility, commanders, superiors and other authorities are liable for crimes perpetrated by their subordinates. Any commander or other responsible authority who orders a subordinate to commit acts of sexual slavery or sexual violence, or who otherwise knew or should have known that such acts were likely to be committed and failed to take steps to prevent them, may be held fully responsible for the commission of the international crimes which those acts constitute, including war crimes, crimes against humanity, slavery, genocide or torture.62 [ ]
"62. Commission of Experts Report (S/1994/674), para. 55."
[B. Evidentiary comment:]
P.27. Evidence inferred from a circumstance.
P.27.1. Evidence that the perpetrator encouraged the commission of 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. 759:
"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, [ ]."
[B. Evidentiary comment:]
P.27.2. Evidence that the perpetrator was present while acts of a sexual nature were occurring.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 300, 651:
"300. [ ] When she returned, girls and women from Partizan had been brought into the house and were being raped. Among them were FWS-87 and D.B., possibly also FWS-50.832 She herself was raped by a man called "Vojvoda". During that time, the witness recalled that "Zaga" was in the main room looking at weapons. She was not quite certain when she first saw him in the house on that day, but she thought it was during the morning and around noontime.833 She had the impression that he must have been aware of what was going on in the house.834"
"832. T 3346.
833. T 3348-3350 and T 3414.
834. T 3350."
"651. The Trial Chamber is also satisfied that Dragoljub Kunarac was aware of the gang-rape of FWS-75 during her stay in the house. Firstly, the Trial Chamber accepts the evidence provided by FWS-75 as to Kunarac entering the room while she was still being raped by "Bane" and telling her to get dressed because they had to go. Secondly , the witnesses as well as Kunarac in his statement of March 1998, Ex P67, said that the sexual intercourse of D.B. and Kunarac and the gang-rape of FWS-75 by a group of soldiers took place in adjacent rooms. The Trial Chamber is satisfied that Kunarac must have heard sounds caused by this incident. Thirdly, the fact that the accused Kunarac and "Gaga" took the girls to Ulica Osmana Dikica no 16 in concert makes it highly unlikely, and therefore incredible, that Dragoljub Kunarac would not have known that FWS-75 was brought to the house for the purposes of rape , as was D.B."
[B. Evidentiary comment:]
P.27.3. Evidence that acts of a sexual nature took place in the perpetrators apartment.
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. 586:
"586. The accused Radomir Kovac, too, was fully aware of the attack against the Muslim villagers and aware of the fact that his acts were part of the attack. [ ] The Trial Chamber notes that two of the women who were later kept in Kovacs apartment, FWS-87 and FWS-75, had actually been captured in this village that very day. [ ]"
[B. Evidentiary comment:]
