Table of contents
P.37. Evidence inferred from a utterance, a document or a deed.
P.37.1. Evidence of using physical force on a person or persons.
P.37.2. Evidence of threatening one or more persons using a weapon.
P.37.3. Evidence of pointing a gun or rifle.
P.37.4. Evidence of threatening to cut off private parts using a knife.
P.37.5. Evidence of threatening verbally to kill one or more persons.
P.37.6. Evidence of threatening to use force against a third person.
P.37.7. Evidence of "bribing" one or more persons to "agree" to sexual intercourse.
P.37.8. Evidence of promising to spare family members.
P.37.9. Evidence of providing food and water.
P.37.10. Evidence of changing detention conditions.
P.38. Evidence inferred from a circumstance.
P.38.1. Evidence of regular violence against detainees.
P.38.2. Evidence of detention in privately owned apartments.
P.38.3. Evidence of psychological oppression amounting to de facto detention.
P.38.4. Evidence of constant fear.
P.38.5. Evidence of constant threat of being subject to sexual violence.
P.38.6. Evidence of victims being subjected to the authority of the perpetrator.
P.38.7. Evidence of the involvement of local authorities.
P.38.8. Evidence of an armed conflict.
P.38.9. Evidence of a military presence.
P.38.10. Evidence of a military presence in a refugee camp.
P.38.11. Evidence of physical incapacity.
P.38.12. Evidence of mental incapacity.
P.38.13. Evidence of induced incapacity.
P.38.14. Evidence of an element of surprise inducing incapacity.
P.38.15. Evidence of an element of misrepresentation inducing incapacity.
P.38.16. Evidence of incapacity caused by intoxication.
Element
P.37. Evidence inferred from a utterance, a document or a deed.
P.37.1. Evidence of using physical force on a person or persons.
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. 210:
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 424, 437:
"424. Witness OO, a young Tutsi woman, testified that she and her family sought refuge at the bureau communal in April 1994 and encountered many other Tutsi refugees there, on the road outside the compound. While she was there, she said, some Interahamwe arrived and started killing people with machetes. She and two other girls tried to flee but were stopped by the Interahamwe who went back and told the Accused that they were taking the girls away to "sleep with" them. Witness OO told the Chamber that standing five meters away from the Accused, she heard him say in reply, "take them". She said she was then separated from the other girls and taken to a field by one Interahamwe called Antoine. When she refused to sit down, he pushed her to the ground and put his "sex" into hers, clarifying on examination that he penetrated her vagina with his penis. When she started to cry, she said he warned her that if she cried or shouted, others might come and kill her."
[B. Evidentiary comment:]
P.37.2. Evidence of threatening one or more persons using a weapon.
P.37.3. Evidence of pointing a gun or rifle.
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. 772:
"772.[ ]The Trial Chamber therefore finds that, sometime between about 31 October 1992 and about 7 November 1992, while in Radomir Kovačs apartment, FWS-87, A.S. and A.B. were forced to strip and dance naked on a table while Kovač watched them from the sofa, pointing weapons at them."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 958:
"958. [ ]Mr. Delić ordered her to take her clothes off, threatened her and ignored her crying pleas for him not to touch her. He pointed a rifle at her while she took her clothes off and ordered her to lie on a bed. [ ]."
[B. Evidentiary comment:]
P.37.4. Evidence of threatening to cut off private parts using a knife.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 98:
"98. [ ]The Trial Chamber heard compelling evidence from several female detainees who testified that it was commonplace for women to be subjected to sexual intimidation or violence in Omarska.236 For example, Sifeta Susić felt threatened by Meljko Meakić when he said to her that someone had "asked whether it was true that Sifeta Susić was raped by 20 soldiers and I said Yes, it is. I was the 20th in line."237 Several witnesses told of an occasion when a man approached a female detainee in the eating area, unbuttoned her shirt, drew a knife over one of her breasts, and threatened to cut it off.238 Many others testified that women were frequently called out from the administration building or the cafeteria at night and were subsequently raped or subjected to other forms of sexual violence.239"
"237 Sifeta Susic, T. 3020-3021.
238 Witness J, T. 4769; Zlata Cikota, T. 3337-3338.
239 Witness J, T. 4774-4775; Witness AT, T. 6083; Witness K, T. 4983; Witness A, T. 5486; Witness F, T. 5382; Sifeta Su{i}, T. 3018"
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998
, para. 82:Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 960:
[B. Evidentiary comment:]
P.37.5. Evidence of threatening verbally to kill one or more persons.
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, 645, 761:
[B. Evidentiary comment:]
P.37.6. Evidence of threatening to use force against a third person.
A. Legal source/authority and evidence:
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998
, paras. 82, 174:"82. The accused continued to interrogate Witness A, who was forced to remain naked in front of approximately 40 soldiers. Accused B drew a knife over the body and thigh of Witness A, threatening, inter alia, to cut out her private parts if she did not co-operate.96 As this was happening, it is alleged that the accused continued to interrogate her about her children, her alleged visits to the Moslem part of Vitez and why certain Croats had helped her when she was Moslem.97 The witness testified that the accused also issued threats against her children.98 She spoke of a direct relationship between his dissatisfaction with her answers and the assaults inflicted upon her by Accused B.99 She stated: "it was one at the same time the interrogation and the ill-treatment and the abuse".100
"96 T. 406; Defence Exhibit D13, p. 6.
97T. 406-407; Prosecution Exhibit P3, p. 25; Defence Exhibit D13, p. 6.
98T. 408-409.
99 T. 416.
100 T. 455."
"174. The Trial Chamber notes the unchallenged submission of the Prosecution in its Pre-trial Brief that rape is a forcible act: this means that the act is "accomplished by force or threats of force against the victim or a third person, such threats being express or implied and must place the victim in reasonable fear that he, she or a third person will be subjected to violence, detention, duress or psychological oppression" ".199
"199Prosecution's Pre-trial Brief, p. 15."
[B. Evidentiary comment:]
P.37.7. Evidence of "bribing" one or more persons to "agree" to sexual intercourse.
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. [ ] The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, [ ] promises; [ ]".
[B. Evidentiary comment:]
P.37.8. Evidence of promising to spare family members.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 551:
"551. Witness K testified about an occasion when one of the cleaning ladies in the camp, Vinka Andzic, came to fetch her, saying that Radić needed her. Radić had previously attempted to coerce her into having sex with him by saying that her children would not be killed if she would agree to having sexual intercourse with him.896 She was led upstairs to the conference room where Radić was waiting. Witness K noticed a foam mattress on the floor,897 and stated that "He told me that my children would not be harmed . . . .Then he attacked me, he assaulted me, and he raped me."898 After Radić left, she said that she stayed in the room for a while to try to stop her bleeding, which was due not only to her menstruating but also to the forced penetration of her vagina."899
"896 Witness K, T. 4983-4984, 5056.
897 Witness K, T. 4983-4984.
898 Witness K, T. 4984-4985, 4987-4988.
899 Witness K, T. 5058."
[B. Evidentiary comment:]
P.37.9. Evidence of providing food and water.
P.37.10. Evidence of changing detention conditions.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 555:
"555. The Defense pointed out that the witness acknowledged, during cross-examination, that Radić had helped her by bringing her food and water and by moving her husband from the white house to the glass house.906 However, the Trial Chamber does not find that this fact discredits the testimony of the witness in any way. Indeed, the evidence suggests that he regularly attempted to bribe or coerce victims to "agree" to sexual intercourse in exchange for favors."
"906Witness AT, T. 6152-6155."
[B. Evidentiary comment:]
P.38. Evidence inferred from a circumstance.
P.38.1. Evidence of regular violence against detainees.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, paras. 98, 561:
"236 Witness J, T. 4774-4775; Witness F, T. 5382-5383; Witness B, T. 2338, 2430; Nedzija Fazlic, T. 5102; Sifeta Susic, T. 3018-3019."
"561. [ ] the Trial Chamber takes into consideration the extraordinary vulnerability of the victims and the fact that they were held imprisoned in a facility in which violence against detainees was the rule, not the exception. The detainees knew that Radić held a position of authority in the camp, that he could roam the camp at will, and order their presence before him at any time. The women also knew or suspected that other women were being raped or otherwise subjected to sexual violence in the camp. The fear was pervasive and the threat was always real that they could be subjected to sexual violence at the whim of Radić."
"574. The women were kept in various detention centres where they had to live in intolerably unhygienic conditions, where they were mistreated in many ways including, for many of them, being raped repeatedly. Serb soldiers or policemen would come to these detention centres, select one or more women, take them out and rape them. Many women and girls, including 16 of the Prosecution witnesses, were raped in that way. Some of these women were taken out of these detention centres to privately owned apartments and houses where they had to cook, clean and serve the residents, who were Serb soldiers. They were also subjected to sexual assaults."
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998
, paras. 89, 271:"89. The further abuses visited upon Witness A, who remained in the custody of the Jokers for several weeks, are not the subject matter of the charges against the accused. Witness A continued to be detained until she was released in a prisoner exchange on 15 August 1993. Whilst in captivity, she was repeatedly raped, sexually assaulted and subjected to other cruel, inhuman and degrading treatment. As a result, she experienced severe physical and mental suffering."
"271. The elements of rape, as discussed in paragraph 185 of this Judgement, were met when Accused B penetrated Witness A's mouth, vagina and anus with his penis. Consent was not raised by the Defence, and in any case, Witness A was in captivity. Further, it is the position of the Trial Chamber that any form of captivity vitiates consent."
Prosecutor v. Duko Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997 paras. 165, 175:
"165. Women who were held at Omarska were routinely called out of their rooms at night and raped. One witness testified that she was taken out five times and raped and after each rape she was beaten."
"175. At Trnopolje there was no regular regime of interrogations or beatings, as in the other camps, but beatings and killings did occur. One witness, Sulejman Besic, testified to having seen dead people wrapped in paper and wired together, their tongues pulled out and, on a later occasion, having seen the slaughtered bodies of young girls and old men in the theatre. Because this camp housed the largest number of women and girls, there were more rapes at this camp than at any other. Girls between the ages of 16 and 19 were at the greatest risk. During evenings, groups of soldiers would enter the camp, take out their victims from the dom building and rape them. Another prisoner, Vasif Gutic, who had medical training, was assigned to work in the medical unit at Trnopolje and testified to the extensive rapes that occurred at the camp. He often counselled and treated victims of rape, the youngest girl being 12 years of age. In addition, there were women who were subjected to gang rapes; one witness testified that a 19-year-old woman was raped by seven men and suffered terrible pains and came to the clinic for treatment for haemorrhaging."
[B. Evidentiary comment:]
P.38.2. Evidence of detention in privately owned apartments.
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. 132:
"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."
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, 750, 780:
"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. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001
, paras. 747, 750, 780:"747. [ ] Paragraph 11.2 alleges that Radomir Kovač 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."
"750. The Trial Chamber is satisfied that the girls could not and did not leave the apartment without one of the men accompanying them. When the men were away, they would be locked inside the apartment with no way to get out. 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."
[B. Evidentiary comment:]
P.38.4. Evidence of constant fear.
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. 747:
"747. [ ] Paragraph 11.2 alleges that Radomir Kovač 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:]
P.38.5. Evidence of constant threat of being subject to sexual violence.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 561:
"561. [ ] the Trial Chamber takes into consideration the extraordinary vulnerability of the victims and the fact that they were held imprisoned in a facility in which violence against detainees was the rule, not the exception. The detainees knew that Radić held a position of authority in the camp, that he could roam the camp at will, and order their presence before him at any time. The women also knew or suspected that other women were being raped or otherwise subjected to sexual violence in the camp. The fear was pervasive and the threat was always real that they could be subjected to sexual violence at the whim of Radić."
[B. Evidentiary comment:]
P.38.6. Evidence of victims being subjected to the authority of the perpetrator.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, paras. 548, 561:
548. Radić grossly abused his position and took advantage of the vulnerability of the detainees. On one occasion he called Witness J into his office and told her that he could help her if she had sexual intercourse with him." "561. [ ] the Trial Chamber takes into consideration the extraordinary vulnerability of the victims and the fact that they were held imprisoned in a facility in which violence against detainees was the rule, not the exception. The detainees knew that Radić held a position of authority in the camp, that he could roam the camp at will, and order their presence before him at any time. The women also knew or suspected that other women were being raped or otherwise subjected to sexual violence in the camp. The fear was pervasive and the threat was always real that they could be subjected to sexual violence at the whim of Radić."
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 Kovač 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. He subjected them to degrading treatments, including beatings and other humiliating treatments."
[B. Evidentiary comment:]
P.38.7. Evidence of the involvement of local authorities.
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. 576:
"576. All this was done in full view, in complete knowledge and sometimes with the direct involvement of the local authorities, particularly the police forces. The head of Foča police forces, Dragan Gagovic, was personally identified as one of the men who came to these detention centres to take women out and rape them."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 495:
[B. Evidentiary comment:]
P.38.8. Evidence of an armed conflict.
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. 130:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 646:
"646. The Trial Chamber rejects the evidence of the accused Dragoljub Kunarac that he was not aware of the fact that D.B. only initiated sexual intercourse with him for reasons of fear for her life. The Trial Chamber regards it as highly improbable that the accused Kunarac could realistically have been "confused" by the behaviour of D.B., given the general context of the existing war-time situation and the specifically delicate situation of the Muslim girls detained in Partizan or elsewhere in the Foča region during that time. As to whether or not he was aware of the threat by "Gaga" against D.B., the Trial Chambers finds it irrelevant as to whether or not Kunarac heard "Gaga" repeat this threat against D.B. when he walked into the room, as D.B. testified. The Trial Chamber is satisfied that D.B. did not freely consent to any sexual intercourse with Kunarac. She was in captivity and in fear for her life after the threats uttered by "Gaga"."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 495:
"495. Furthermore, it is difficult to envisage circumstances in which rape, by, or at the instigation of a public official, or with the consent or acquiescence of an official, could be considered as occurring for a purpose that does not, in some way, involve punishment, coercion, discrimination or intimidation. In the view of this Trial Chamber this is inherent in situations of armed conflict."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 686:
"686.[ ]The Tribunal notes in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal. Sexual violence falls within the scope of "other inhumane acts", set forth Article 3(i) of the Tribunals Statute, "outrages upon personal dignity," set forth in Article 4(e) of the Statute, and "serious bodily or mental harm," set forth in Article 2(2)(b) of the Statute."
Special Rapporteur on Contemporary Forms of Slavery, Systematic Rape, Sexual Slavery and Slavery-Like Practices during Armed Conflict, 22 June 1998, U.N. Doc. E/CN.4/Sub.2/1998/13 para. 25:
"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."
[B. Evidentiary comment:]
P.38.9. Evidence of a military presence.
P.38.10. Evidence of a military presence in a refugee camp.
A. Legal source/authority and evidence:
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para 686:
"686.[ ]The Tribunal notes in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal. Sexual violence falls within the scope of "other inhumane acts", set forth Article 3(i) of the Tribunals Statute, "outrages upon personal dignity," set forth in Article 4(e) of the Statute, and "serious bodily or mental harm," set forth in Article 2(2)(b) of the Statute."
[B. Evidentiary comment:]
P.38.11. Evidence of physical incapacity.
P.38.12. Evidence of mental incapacity.
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. 387:
"387. A number of jurisdictions provide that specified sexual acts will constitute rape not only where accompanied by force or threat of force but also in the presence of other specified circumstances.These circumstances include that the victim was put in a state of being unable to resist, was particularly vulnerable or incapable of resisting because of physical or mental incapacity, or was induced into the act by surprise or misrepresentation."
[B. Evidentiary comment:]
P.38.13. Evidence of induced incapacity.
P.38.14. Evidence of an element of surprise inducing incapacity.
P.38.15. Evidence of an element of misrepresentation inducing incapacity.
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. 387:
"387. A number of jurisdictions provide that specified sexual acts will constitute rape not only where accompanied by force or threat of force but also in the presence of other specified circumstances. These circumstances include that the victim was put in a state of being unable to resist, was particularly vulnerable or incapable of resisting because of physical or mental incapacity, or was induced into the act by surprise or misrepresentation."
[B. Evidentiary comment:]
P.38.16. Evidence of incapacity caused by intoxication.
P.38.17. Evidence of age-related incapacity to consent.
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. 591:
"591. Zoran Vuković also perpetuated the attack by personally raping at least two Muslim girls, FWS-75 and FWS-50. While raping FWS-50, a girl whom he knew was of the same age as his own daughter, Zoran Vuković boasted that he could have done much worse to her and that she was lucky about this coincidence."
Eve La Haye, in Roy. S. Lee (ed.), The International Criminal Court. Elements of Crime and Rules of Procedure and Evidence (2001), p. 189:
"The last part of this [third] element deals with the alternative circumstance in which the invasion was committed against a person incapable of giving genuine consent. This is meant to cover cases where a child, an elderly, a disabled person or a person under the influence of for example drugs, is subject to rape. These examples are captured in footnote 51 which states: "It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity." In these circumstances, non-consent is presumed, as such persons are deemed to be incapable of giving genuine consent. "Genuine" is meant to cover concepts such as voluntary and informed consent."
[B. Evidentiary comment:]
