Table of contents:
4.1.1. Evidence of use of physical force.
4.1.2. Evidence of absence of consent or voluntary participation.
4.1.3. Evidence of punishment.
4.2. Invasion by threat of force or coercion against such person or another person.
4.2.1. Evidence of fear of violence (or duress).
4.2.2. Evidence of detention/captivity.
P.5. Evidence of formal detention.
P.5.1. Evidence of the use of detention centres/camps.
P.6. Evidence of informal detention.
P.6.1. Evidence of detention in privately owned apartments.
4.2.3. Evidence of psychological oppression.
P.7. Evidence of discrimination.
P.8. Evidence of intimidation.
2.2.4. Evidence of abuse of power.
4.2.4. Evidence of taking advantage of a coercive environment.
P.11. Evidence of an armed conflict.
P.12. Evidence of detention/captivity.
P.13. Evidence of abuse of power.
4.2.5. Evidence of absence of consent or voluntary participation.
4.2.6. Evidence of incapacity to give genuine consent.
P.14. Evidence of natural incapacity.
P.15. Evidence of induced incapacity.
Element:
51. It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity. This footnote also applies to the corresponding elements of article 8 (2) (b) (xxii)-3, 5 and 6.
4.1.1. Evidence of use of physical force.
A. Legal source/authority and evidence:
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, para. 833:
"833. According to Witness J, Musema then raped one of the women, a Tutsi woman named Immaculée Mukankusi who was 25 years old and eight months pregnant. He hit her with the butt of his gun, she fell down, he dropped his trousers and underwear to the knees and jumped on her. The witness said Immaculee was struggling and she was crying because he was saying that he was going to kill her. Musema was on top of her for about four minutes. After raping her, he put on his clothes, got up and killed her, stabbing her with the knife attached to his gun between the neck and the shoulder."
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."
"437. [ ] According to Witness PP, who then went to Kinihira herself, the three women were forced by the Interahamwe to undress and told to walk, run and perform exercises "so that they could display the thighs of Tutsi women." All this took place, she said, in front of approximately two hundred people. After this, she said the women were raped. She described in particular detail the rape of Alexia by Interahamwe who threw her to the ground and climbed on top of her saying "Now, lets see what the vagina of a Tutsi woman feels like." According to Witness PP, Alexia gave the Interahamwe named Pierre her Bible before he raped her and told him, "Take this Bible because it's our memory, because you do not know what you're doing." Then one person held her neck, others took her by the shoulders and others held her thighs apart as numerous Interahamwe continued to rape her - Bongo after Pierre, and Habarurena after Bongo."
4.1.2. Evidence of absence of consent or voluntary participation.
A. Legal source/authority and evidence:
The Prosecutor v. Jadranko Prlić et al., Trial Judgement 29 May 2013
, para. 761:"761. The Chamber established that during an operation to expel 90 Muslims from the Dum neighbourhood from their homes, soldiers of the 4th Tihomir Miić Battalion of the 3rd HVO Brigade as well as Vinko Martinović alias "Stela", Bobo Perić, Damir Perić, Ernest Takać and Nino Pehar alias "Tega", members of the Vinko Skrobo ATG, forced Muslim women to have nonconsensual sexual relations. The Chamber holds that the circumstances of these incidents - the presence of witnesses and the fact that the HVO unit itself when reporting these acts characterised them as rape - show unequivocally that the victims had not given their consent. The Chamber is also satisfied beyond any reasonable doubt that the HVO soldiers intended to have sexual relations with their victims knowing that the victims did not consent to them. The Chamber therefore finds that on 13 June 1993, soldiers of the 4th Tihomir Miić Battalion of the 3 rd HVO Brigade and Vinko Martinović alias "Stela", Bobo Perić, Damir Perić, Ernest Takać and Nino Pehar alias "Tega", members of the Vinko Skrobo ATG, raped several Muslim women during operations to expel Muslims from the Dum neighbourhood in West Mostar from their homes, thereby committing the crime of rape recognised by Article 5 of the Statute."
The Prosecutor v. Jadranko Prlić et al., Trial Judgement 29 May 2013
, para. 763-764:"763. Moreover, as the Chamber established, on 4 September 1993, a military policeman sexually penetrated a Muslim woman whom he had expelled from her home, handcuffed, undressed and threatened. Nine other members of the HVO - a second military policeman and members of the Vinko Skrobo ATG - also had sexual relations with the victim that lasted two hours, before they took her to the front line and forced her to cross it. The Chamber holds that the circumstances of the incident show unequivocally that the victim did not give her consent. The Chamber is, moreover, satisfied that when they took the woman into a room, handcuffed her, took off her trousers and proceeded repeatedly and systematically to penetrate the victim sexually, the members of the HVO intended to penetrate her knowing that the victim had not given her consent. The Chamber therefore finds that on 4 September 1993, two military policemen and members of the Vinko Skrobo ATG raped a Muslim woman during operations in September 1993 to expel Muslims from West Mostar, thereby committing the crime of rape, a crime recognised by Article 5 of the Statute.
764. The Chamber also established that on 29 September 1993 during an operation conducted by the Vinko Skrobo ATG and the 1st Light Assault Battalion of the Military Police to evict Muslim residents of the Centar II neighbourhood in West Mostar, several women, including a 16-year-old girl and Witness CX, were subjected to sexual abuse, including forced sexual relations. With regard to Witness CX, the Chamber deems that the use of force and violence against her and the extreme humiliation she suffered at the time of the events and after, notably due to the presence of her family during the sexual acts committed successively by nine HVO soldiers, unquestionably show both the lack of consent by the victim and that the soldiers intended to sexually penetrate the victim knowing that this penetration was non-consensual. The Chamber is satisfied, furthermore, that the HVO soldiers had non-consensual sexual relations with other women, including a girl of 16, with the intention to commit such acts. The Chamber therefore finds that on 29 September 1993, HVO soldiers, including members of the Vinko Skrobo ATG, raped Witness CX and other Muslim women, thereby committing the crime of rape, a crime recognised by Article 5 of the Statute."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 457, 460, 759:
"457. Sexual autonomy is violated wherever the person subjected to the act has not freely agreed to it or is otherwise not a voluntary participant."
"460. In light of the above considerations, the Trial Chamber understands that the actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victims free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim."
"759. The Trial Chamber finds that FWS-75 and A.B. were detained in Radomir Kovacs apartment for about a week, starting sometime at the end of October or early November 1992. 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. Finally, the Trial Chamber is satisfied that it has been proven beyond reasonable doubt that, after about a week, Kovac handed the two women over to other soldiers whom he knew would most likely continue to rape and abuse them. Kovac eventually sold A.B. to an unidentified soldier, and handed over FWS-75 to DP 1, in the almost certain knowledge that they would be raped again."
4.1.3. Evidence of punishment.
A. Legal source/authority and evidence:
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, paras. 430, 437:
"430. Witness NN, a Tutsi woman and the younger sister of JJ, described being raped along with another sister by two men in the courtyard of their home, just after it was destroyed by their Hutu neighbours and her brother and father had been killed. Witness NN said one of the men told her that the girls had been spared so that they could be raped. She said her mother begged the men, who were armed with bludgeons and machetes, to kill her daughters rather than rape them in front of her, and the man replied that the "principle was to make them suffer" and the girls were then raped. Witness NN confirmed on examination that the man who raped her penetrated her vagina with his penis, saying he did it in an "atrocious" manner, mocking and taunting them. She said her sister was raped by the other man at the same time, near her, so that they could each see what was happening to the other. Afterwards, she said she begged for death."
"437. According to Witness PP, who then went to Kinihira herself, the three women were forced by the Interahamwe to undress and told to walk, run and perform exercises "so that they could display the thighs of Tutsi women." All this took place, she said, in front of approximately two hundred people. After this, she said the women were raped. She described in particular detail the rape of Alexia by Interahamwe who threw her to the ground and climbed on top of her saying "Now, lets see what the vagina of a Tutsi woman feels like." According to Witness PP, Alexia gave the Interahamwe named Pierre her Bible before he raped her and told him, "Take this Bible because it's our memory, because you do not know what you're doing." Then one person held her neck, others took her by the shoulders and others held her thighs apart as numerous Interahamwe continued to rape her - Bongo after Pierre, and Habarurena after Bongo."
4.2.I nvasion by threat of force or coercion against such person or another person.
4.2.1. Evidence of fear of violence (or duress).
A. Legal source/authority and evidence:
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC - 01/04-01/07, Decision on confirmation of charges (PTC), 30 September 2008, para. 352-353:
352. The evidence admitted for the purposes of the confirmation hearing also gives substantial grounds to believe that these invasions were committed by force, threat or fear of violence or death, and/or detention.
353. In reaching this finding, the Chamber takes into account, inter alia, the following evidence:
a. Witness 249 is a Hema civilian woman [REDACTED]. She wasabducted, undressed, and raped by an Ngiti combatant at the village of Bogoro. Following death threats, she became the 'wife' of an Ngiti combatant, and was repeatedly raped. She had a child as a result of these rapes during her captivity.
b. Witness 132 is a Hema civilian woman [REDACTED]. She fled the village of Bogoro during the attack and was still in hiding when she was abducted by the combatants. She was repeatedly raped at the site of her abduction and while in captivity. She had a child as a result of these rapes during her captivity.
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:
"130. The Appeals Chamber notes, for example, that in some domestic jurisdictions, neither the use of a weapon nor the physical overpowering of a victim is necessary to demonstrate force. A threat to retaliate "in the future against the victim or any other person" is a sufficient indicium of force so long as "there is a reasonable possibility that the perpetrator will execute the threat".161 While it is true that a focus on one aspect gives a different shading to the offence, it is worth observing that the circumstances giving rise to the instant appeal and that prevail in most cases charged as either war crimes or crimes against humanity will be almost universally coercive. That is to say, true consent will not be possible."
"161. California Penal Code 1999, Title 9, Section 261(a)(6). The section also lists, among the circumstances transforming an act of sexual intercourse into rape, "where it is accomplished against a persons will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another" (Section 261(a)(2)). Consent is defined as "positive cooperation in act or attitude pursuant to an exercise of free will" (Section 261.6)."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 645, 667, 711, 761:
"645. The Trial Chamber, however, accepts the testimony of D.B. who testified that, prior to the intercourse, she had been threatened by "Gaga" that he would kill her if she did not satisfy the desires of his commander, the accused Dragoljub Kunarac. The Trial Chamber accepts D.B.s evidence that she only initiated sexual intercourse with Kunarac because she was afraid of being killed by "Gaga" if she did not do so."
"667. The Trial Chamber further accepts FWS-50s testimony about her being raped "in a beast-like manner" by an old Montenegrin soldier that night who wielded a knife and threatened to draw a cross on her back and to baptise her."
"711. The three soldiers then took her to the banks of the Cehotina River in Foča near Velečevo, where the accused tried to obtain information or a confession from FWS-183 concerning her alleged sending of messages to the Muslim forces and information about the whereabouts of her valuables while he threatened to kill her and her son. By his attempt to intimidate her, Dragoljub Kunarac also showed his hatred for Muslims, his intention to intimidate her, and his intention to discriminate against Muslims in general, and FWS-183 in particular. All three soldiers raped FWS-183. In the course of the rapes, Kunarac forced her to touch his penis and to look at him. He cursed her. The other two soldiers watched from the car, laughing. While she was raped by Dragoljub Kunarac, FWS-183 heard him tell the other soldiers to wait for their turn. Subsequently, she was raped vaginally and orally by the other soldiers. The rapes resulted in severe mental and physical pain for FWS-183."
"761. The Trial Chamber is satisfied that it has been proven beyond reasonable doubt that, while in Radomir Kovačs apartment, FWS-87 was raped by both Kovač and Jagos Kostic. Kovač 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 Kovačs absence to rape FWS-87 too. He threatened her that if she reported this to Radomir Kovač he would kill her. Kovač 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 Kovač in his apartment. Kova~ 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."
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.
97. T. 406-407; Prosecution Exhibit P3, p. 25; Defence Exhibit D13, p. 6.
98. T. 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
"199. Prosecution's Pre-trial Brief, p. 15."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 960-961:
"960. The second rape occurred when Hazim Delic came to Building A and ordered Ms. Antic to go to Building B to wash herself. After doing so, she was led to the same room in which she was first raped, where Delic, who had a pistol and a rifle and was in uniform, was sitting on a desk. She started crying once again out of fear. He ordered her to take her clothes off. She kept telling him that she was sick and asking him not to touch her. Out of fear that he would kill her she complied with his orders. Mr. Delic told her to get on the bed and to turn around and kneel. After doing so he penetrated her anus with his penis while she screamed from pain. He was unable to penetrate her fully and she started to bleed. Mr. Delic then turned her around and penetrated her vagina with his penis and ejaculated on her lower abdomen. After the rape Ms. Antic continued crying, felt very ill and experienced bleeding from her anus, which she treated with a compress, and was provided with tranquillisers."
"961. The third rape occurred in Building A. It was daylight when Hazim Delic came in, armed with hand grenades, a pistol and rifle. He threatened her and she again said that she was a sick woman and asked him not to touch her. He ordered her to undress and get on the bed. She did so under pressure and threat. Mr. Delic then pulled his trousers down to his boots and raped her by penetrating her vagina with his penis. He then ejaculated on her abdomen."
4.2.2. Evidence of detention/captivity.
A. Legal source/authority and evidence:
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."
P.5. Evidence of formal detention.
P.5.1. Evidence of the use of detention centres/camps.
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. Approximately thirty-six of the detainees held at Omarska camp were women. The women detained at Omarska were of different ages; the oldest were in their sixties and there was one young girl. 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 Susic felt threatened by Zeljko Meakic when he said to her that someone had "asked whether it was true that Sifeta Susic 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"
"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.
237. Sifeta Susic, T. 3020-3021.
238. Witness J, T. 4769; Zlata Cikota, T. 3337-3338."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 574-575:
"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."
"575. In particular, the Trial Chamber finds that the Muslim civilians held at Kalinovik School, Foca High School and Partizan Sports Hall were kept in unhygienic conditions and without hot water. They were provided with insufficient food. Their freedom of movement was curtailed; they were not allowed to go to any other territory or to go back to their houses. Most of their houses were burnt down or ransacked. They were guarded and lived in an atmosphere of intimidation. The Trial Chamber is satisfied that Kalinovik School, Foca High School and Partizan Sports Hall served as detention centres at the relevant time."
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.6. Evidence of informal detention.
P.6.1. Evidence of detention in privately owned apartments.
A. Legal source/authority and evidence:
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC - 01/04-01/07, Decision on confirmation of charges (PTC), 30 September 2008, para. 434:
434. The Chamber finds that there is sufficient evidence to establish substantial grounds to believe that before and in the aftermath of the joint FRPI/FNI attack against the village of Bogoro on 24 February 2003, combatants from the FRPI and the FNI:
(i) abducted women and/or girls from villages or areas surrounding the camps for the purpose of using them as their "wives";
(ii) forced and threatened women and/or girls to engage in sexual intercourse with combatants and to serve as sexual slaves for combatants and commanders alike; and
(iii) captured and imprisoned women and/or girls to work in a military camp servicing the soldiers.
More specifically, there are substantial grounds to believe that during the attack on Bogoro, women were captured, raped and subsequently abducted by Ngiti attackers. The women were taken to camps where they were kept as prisoners in order to provide domestic services, including cooking and cleaning, and to engage in forced sexual acts with combatants and commanders.
Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC), 26 February 2009, paras. 61-62 :
"61. With the onset of darkness the women, including K20 and K58, were taken into two rooms and the courtyard cattle shed, or stable, of a house in Beleg. Later that evening two or three VJ soldiers and a policeman, at least one of whom spoke Albanian, entered one of the rooms where the women were being detained and said they needed some "girls" for cleaning. Some older women volunteered, but the soldiers used torch lights to identify five younger women or girls.K20, one of the five thus selected, explained how, after offering them cigarettes and shining the torch on their faces, the soldiers told two of the girls to return to the room. The remaining three were then taken to another house.
62. K20 was taken into a bathroom by herself and was then forcibly undressed and raped by one of the soldiers. As this was happening the policeman and other soldiers stood in the doorway occasionally illuminating the scene with a torch. Once the first soldier had finished, K20 tried to dress herself, but she was slapped by the policeman causing her to lose consciousness temporarily. She was then raped by a second soldier, and then again by a third. Although the policeman told her after the third soldier that he would be the last, a fourth soldier entered the bathroom from the hallway and also raped her. K20 could not describe the individual soldiers, but testified that they were wearing green camouflage uniforms, some with insignia, and all spoke Serbian. While K20 was being raped in the bathroom, she could hear one of the other two girls who had been taken to the house with her screaming in the next room.1 When K20 was allowed to leave the house, the Albanian-speaking police officer stated to her "the [KLA] did worse than they are doing. You can handle them." As she was leaving, she also heard the second of the other two selected girls screaming. About half an hour after she was returned to the place where the rest of the women were being detained, one of the two girls who had been taken away with her returned, followed by the other some time later. The first said that she had not been required to do anything; the second said merely that she had had to clean, but looked "lost". K20 concluded that these two girls had also been raped, as "their screams were the same as my screams while they raped me."
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. 750, 759, 780:
"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."
"759. The Trial Chamber finds that FWS-75 and A.B. were detained in Radomir Kovacs apartment for about a week, starting sometime at the end of October or early November 1992. 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. Finally, the Trial Chamber is satisfied that it has been proven beyond reasonable doubt that, after about a week, Kovac handed the two women over to other soldiers whom he knew would most likely continue to rape and abuse them. Kovac eventually sold A.B. to an unidentified soldier, and handed over FWS-75 to DP 1, in the almost certain knowledge that they would be raped again."
"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. He subjected them to degrading treatments, including beatings and other humiliating treatments."
[B. Evidentiary comment:]
4.2.3. Evidence of psychological oppression.
P.7. Evidence of discrimination.
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. 560:
"560. The Trial Chamber further finds that the rape and other forms of sexual violence were committed only against the non-Serb detainees in the camp and that they were committed solely against women, making the crimes discriminatory on multiple levels."
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, 711, 816:
"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 Foca 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"."
"711. The three soldiers then took her to the banks of the Cehotina river in Foca near Velecevo, where the accused tried to obtain information or a confession from FWS-183 concerning her alleged sending of messages to the Muslim forces and information about the whereabouts of her valuables while he threatened to kill her and her son. By his attempt to intimidate her, Dragoljub Kunarac also showed his hatred for Muslims, his intention to intimidate her, and his intention to discriminate against Muslims in general, and FWS-183 in particular. All three soldiers raped FWS-183. In the course of the rapes, Kunarac forced her to touch his penis and to look at him. He cursed her. The other two soldiers watched from the car, laughing. While she was raped by Dragoljub Kunarac, FWS-183 heard him tell the other soldiers to wait for their turn. Subsequently, she was raped vaginally and orally by the other soldiers. The rapes resulted in severe mental and physical pain for FWS-183."
"816. The Trial Chamber has no doubt that it was at least a predominant purpose, as the accused obviously intended to discriminate against the group of which his victim was a member, ie the Muslims, and against his victim in particular."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 495:
"495. The Trial Chamber considers the rape of any person to be a despicable act which strikes at the very core of human dignity and physical integrity. The condemnation and punishment of rape becomes all the more urgent where it is committed by, or at the instigation of, a public official, or with the consent or acquiescence of such an official. Rape causes severe pain and suffering, both physical and psychological. The psychological suffering of persons upon whom rape is inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long lasting."
P.8. Evidence of intimidation.
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. 551, 554-555:
"551. Witness K testified about an occasion when one of the cleaning ladies in the camp, Vinka Andzic, came to fetch her, saying that Radic needed her. Radic 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 Radic was waiting. Witness K noticed a foam mattress on the floor,897 and stated that "ShCe told me that my children would not be harmed . . . .Then he attacked me, he assaulted me, and he raped me."898 After Radic 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."
"554. Witness AT testified that Radic called her out of her room several times during her 23 days spent in Omarska camp. Like other women, she was taken to a room at the end of the corridor, where a sponge mattress was on the floor. The witness described how, on one such occasion, Radic told her to take her clothes off and forced her to have sexual intercourse with him.904 She emphasized: "I defended myself, and I asked him why he was doing that. But I had to, under pressure from him, to take my clothes off and lie down on the foam mattress."905"
"555. The Defense pointed out that the witness acknowledged, during cross-examination, that Radic 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. The Trial Chamber recalls previous holdings by the Tribunal, as well as Rule 96, dealing with evidence in cases of sexual assault, which states that a status of detention will normally vitiate consent in such circumstances.907"
"904. Witness AT, T. 6095-6098, 6155.
905. Witness AT, T. 6157-6158.
906. Witness AT, T. 6152-6155.
907. See Celebici Trial Chamber Judgement, para. 495; Furundzija Trial Chamber Judgement, para. 271; Kunarac Trial Chamber Judgement, para. 464. Rule 96 of the Rules of Procedure and Evidence provides that in cases of sexual assault, consent shall not be allowed as a defense if "the victim has been subjected to or threated [sic] with or has had reason to fear violence, duress, detention or psychological oppression"."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 574-575, 583, 711:
"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."
"575. In particular, the Trial Chamber finds that the Muslim civilians held at Kalinovik School, Foca High School and Partizan Sports Hall were kept in unhygienic conditions and without hot water. They were provided with insufficient food. Their freedom of movement was curtailed; they were not allowed to go to any other territory or to go back to their houses. Most of their houses were burnt down or ransacked. They were guarded and lived in an atmosphere of intimidation. The Trial Chamber is satisfied that Kalinovik School, Foca High School and Partizan Sports Hall served as detention centres at the relevant time."
"583. Dragoljub Kunarac also knew that Muslim women were specifically targeted, as he himself took several of them to his men and raped some of them himself. In the course of one of these rapes, he expressed with verbal and physical aggression his view that the rapes against the Muslim women were one of the many ways in which the Serbs could assert their superiority and victory over the Muslims. While raping FWS-183, the accused Dragoljub Kunarac told her that she should enjoy being "fucked by a Serb". After he and another soldier had finished, Dragoljub Kunarac laughed at her and added that she would now carry a Serb baby and would not know who the father would be. In addition, the accused Dragoljub Kunarac removed many Muslim girls from various detention centres and kept some of them for various periods of time for him or his soldiers to rape."
"711. The three soldiers then took her to the banks of the Cehotina river in Foca near Velecevo, where the accused tried to obtain information or a confession from FWS-183 concerning her alleged sending of messages to the Muslim forces and information about the whereabouts of her valuables while he threatened to kill her and her son. By his attempt to intimidate her, Dragoljub Kunarac also showed his hatred for Muslims, his intention to intimidate her, and his intention to discriminate against Muslims in general, and FWS-183 in particular. All three soldiers raped FWS-183. In the course of the rapes, Kunarac forced her to touch his penis and to look at him. He cursed her. The other two soldiers watched from the car, laughing. While she was raped by Dragoljub Kunarac, FWS-183 heard him tell the other soldiers to wait for their turn. Subsequently, she was raped vaginally and orally by the other soldiers. The rapes resulted in severe mental and physical pain for FWS-183."
A. Legal source/authority and evidence:
The Prosecutor v. Jean-Pierre Bemba Gombo, Trial Judgement 21 March 2016
, paras. 472-473:"472. Not long after, a third group of armed "Banyamulengues", speaking Lingala and wearing new uniforms like those of the CAR military, came to the house. One man forced P87 around the back of the house, threw her on the ground, and took off her underwear. The soldier had his hand on his weapon which he put on the ground. He then penetrated her vagina with his penis. The man called one of his companions "in their language", who came and "did the same thing". When he finished, he called a third man, who also "did the same thing", while pointing the barrel of his rifle at her. Afterwards, P87 suffered medical and psychological consequences, including depression, skin disorders, and pelvic pain.
473. Concerning Defence submissions relating to P87s "omission of any reference of rape in a previous report to the family lawyer," the Chamber notes that she testified that feelings of shame played a role in her decision not to alert her neighbours immediately after the events and its omission from a complaint filed with the CAR Procureur general and in her victim application. The Chamber accepts this explanation, and considers that these omissions do not discredit P87. In light of the above, the Chamber finds that, on or around 30 October 2002, behind P87s house in the Fourth Arrondissement of Bangui, three perpetrators, by force, invaded P87s body by penetrating her vagina with their penises."
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 127-129, 272:
"127. The interrogation of Witness A continued in the pantry, once more before an audience of soldiers. Whilst naked but covered by a small blanket, she was interrogated by the accused. She was subjected to rape, sexual assaults, and cruel, inhuman and degrading treatment by Accused B. Witness D was also interrogated by the accused and subjected to serious physical assaults by Accused B. He was made to watch rape and sexual assault perpetrated upon a woman whom he knew, in order to force him to admit allegations made against her. In this regard, both witnesses were humiliated."
"128. Accused B beat Witness D and repeatedly raped Witness A. The accused was present in the room as he carried on his interrogations. When not in the room, he was present in the near vicinity, just outside an open door and he knew that crimes including rape were being committed. In fact, the acts by Accused B were performed in pursuance of the accused's interrogation."
"129. It is clear that in the pantry, both Witness A and Witness D were subjected to severe physical and mental suffering and they were also publicly humiliated."
"272. The Trial Chamber is satisfied that all the elements of rape were met. Again, the rapes and sexual assaults were committed publicly; members of the Jokers were watching and milling around the open door of the pantry. They laughed at what was going on. The Trial Chamber finds that Witness A suffered severe physical and mental pain, along with public humiliation, at the hands of Accused B in what amounted to outrages upon her personal dignity and sexual integrity."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998,, paras. 430, 437:
"430. Witness NN confirmed on examination that the man who raped her penetrated her vagina with his penis, saying he did it in an "atrocious" manner, mocking and taunting them. She said her sister was raped by the other man at the same time, near her, so that they could each see what was happening to the other. Afterwards, she said she begged for death."
"437. According to Witness PP, who then went to Kinihira herself, the three women were forced by the Interahamwe to undress and told to walk, run and perform exercises "so that they could display the thighs of Tutsi women." All this took place, she said, in front of approximately two hundred people. After this, she said the women were raped. She described in particular detail the rape of Alexia by Interahamwe who threw her to the ground and climbed on top of her saying "Now, lets see what the vagina of a Tutsi woman feels like."
2.2.4. Evidence of abuse of power.
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. 548:
"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."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 576, 780:
"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 Foca 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."
"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. He subjected them to degrading treatments, including beatings and other humiliating treatments."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 495, 958, 960:
"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."
"958. The Trial Chamber thus finds that Ms. Antic was raped for the first time on the night of her arrival in the prison-camp. On this occasion she was called out of Building A and brought to Hazim Delic in Building B, who was wearing a uniform. He began to interrogate her and told her that if she did not do whatever he asked she would be sent to another camp or she would be shot. Mr. Delic 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. Mr. Delic then raped her by penetrating her vagina with his penis, he ejaculated on the lower part of her stomach and continued to threaten and curse her."
"960. The second rape occurred when Hazim Delic came to Building A and ordered Ms. Antic to go to Building B to wash herself. After doing so, she was led to the same room in which she was first raped, where Delic, who had a pistol and a rifle and was in uniform, was sitting on a desk. She started crying once again out of fear. He ordered her to take her clothes off. She kept telling him that she was sick and asking him not to touch her. Out of fear that he would kill her she complied with his orders. Mr. Delic told her to get on the bed and to turn around and kneel. After doing so he penetrated her anus with his penis while she screamed from pain. He was unable to penetrate her fully and she started to bleed. Mr. Delic then turned her around and penetrated her vagina with his penis and ejaculated on her lower abdomen. After the rape Ms. Antic continued crying, felt very ill and experienced bleeding from her anus, which she treated with a compress, and was provided with tranquillisers."
A. Legal source/authority and evidence:
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, paras. 430, 437:
"430. Witness NN, a Tutsi woman and the younger sister of JJ, described being raped along with another sister by two men in the courtyard of their home, just after it was destroyed by their Hutu neighbours and her brother and father had been killed. Witness NN said one of the men told her that the girls had been spared so that they could be raped. She said her mother begged the men, who were armed with bludgeons and machetes, to kill her daughters rather than rape them in front of her, and the man replied that the "principle was to make them suffer" and the girls were then raped. Witness NN confirmed on examination that the man who raped her penetrated her vagina with his penis, saying he did it in an "atrocious" manner, mocking and taunting them. She said her sister was raped by the other man at the same time, near her, so that they could each see what was happening to the other. Afterwards, she said she begged for death."
"437. According to Witness PP, who then went to Kinihira herself, the three women were forced by the Interahamwe to undress and told to walk, run and perform exercises "so that they could display the thighs of Tutsi women." All this took place, she said, in front of approximately two hundred people. After this, she said the women were raped. She described in particular detail the rape of Alexia by Interahamwe who threw her to the ground and climbed on top of her saying "Now, lets see what the vagina of a Tutsi woman feels like." According to Witness PP, Alexia gave the Interahamwe named Pierre her Bible before he raped her and told him, "Take this Bible because it's our memory, because you do not know what you're doing." Then one person held her neck, others took her by the shoulders and others held her thighs apart as numerous Interahamwe continued to rape her - Bongo after Pierre, and Habarurena after Bongo."
4.2.4. Evidence of taking advantage of a coercive environment.
P.11. Evidence of an armed conflict.
A. Legal source/authority and evidence:
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 688:
"688. 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."
P.12. Evidence of detention/captivity.
A. Legal source/authority and evidence:
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."
P.13. Evidence of abuse of power.
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. In considering whether severe pain and suffering was also inflicted upon the other victims of sexual violence, 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 Radic 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 Radic."
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."
4.2.5. Evidence of absence of consent or voluntary participation.
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. 129-130:
"129. [ ] with regard to the role of force in the definition of rape, the Appeals Chamber notes that the Trial Chamber appeared to depart from the Tribunals prior definitions of rape.158 However, in explaining its focus on the absence of consent as the conditio sine qua non of rape, the Trial Chamber did not disavow the Tribunals earlier jurisprudence, but instead sought to explain the relationship between force and consent. Force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape.159 In particular , the Trial Chamber wished to explain that there are "factors [other than force] which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim".160 A narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force."
"158. See, e.g., Furundzija Trial Judgement, para 185. Prior attention has focused on force as the defining characteristic of rape. Under this line of reasoning, force or threat of force either nullifies the possibility of resistance through physical violence or renders the context so coercive that consent is impossible.
159 Trial Judgment, para 458.
160. Ibid., para 438."
"130. [I]t is worth observing that the circumstances giving rise to the instant appeal and that prevail in most cases charged as either war crimes or crimes against humanity will be almost universally coercive. That is to say, true consent will not be possible."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 387, 459-460:
"387. The relevance not only of force, threat of force, and coercion but also of absence of consent or voluntary participation is suggested in the Furundija judgement itself where it is observed that:
[...] all jurisdictions surveyed by the Trial Chamber require an element of force, coercion, threat, or acting without the consent of the victim: force is given a broad interpretation and includes rendering the victim helpless."1123
"1123. Ibid, [Prosecutor v. Furundzija, Case IT-95-17/1-T, Judgement, 10 Dec 1998] par 80."
"459. Given that it is evident from the Furundija case that the terms coercion, force, or threat of force were not to be interpreted narrowly and that coercion in particular would encompass most conduct which negates consent, this understanding of the international law on the subject does not differ substantially from the Furundija definition."
"460. In light of the above considerations, the Trial Chamber understands that the actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victims free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim."
B. Evidentiary comment:
This means of proof is somewhat problematic because it is not explicitly referred to in the Rome Statute and Elements of Crimes document, but it is arguably implicit in the Furundzija judgement, which forms the basis of the relevant provision on rape in the ICC Elements of Crimes. It is noteworthy that the drafters of the elements of crimes for the Rome Statute did not have the benefit of the Kunarac Trial or Appeal Chambers decisions. The main references were to the Akayesu, Furundzija and Delalic judgements. The definitions and constitutive elements of the crime of rape used in these three cases was the basis for the negotiations on the elements. Thus, the ICC has adopted a definition of the second element of rape similar to that of the Furundzija Chamber. As a result, the ICC definition focuses on force or coercion rather than consent.
The difficulty with the ICC/Furundzija definition is that it ignores the fact, discussed by the Kunarac Appeal Chamber, that the basic principle underlying the crime of rape is lack of consent. By focusing on the concept of force/coercion, the ICC definition seems conceptually misguided, with the result that it is both too narrowly drawn, and, at the same time, too broad. The Kunarac Trial and Appeal Chambers decisions appear to broaden the scope of this second element in such a way that does not appear inconsistent with the Furundzija case (see Kunarac (TC), paras. 387, 459 and 460 and Kunarac (AC), paras. 129 and 132) and is more reflective of the true nature of rape. The Kvocka Trial judgement subsequently endorsed this second element. For the sake of completeness, evidence of absence of consent or voluntary participation is included in the subsequent section.
4.2.6. Evidence of incapacity to give genuine consent.
P.14. Evidence of natural incapacity.
P.15. Evidence of induced incapacity.
Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC) Vol II, 26 February 2009, para. 880:
"880. When they arrived at the hospital in Pritina/Prishtina, K31 was taken to the basement and put in a locked, dark room with no furniture and about 10 to 15 other women inside, all Kosovo Albanian. About 20 minutes later a soldier entered and, using a torch, selected K31 and took her into another room in the basement. He and two other soldiers beat her and forced her to drink something with a bitter taste, after which she felt as if something had hit her on the head. After two of the soldiers left the room, K31 was raped by the one who had first selected her; he bit her shoulders, arms, and breasts, and covered her mouth with his hand. While K31 was still on the floor, a second soldier came into the room and raped her twice. Afterwards this soldier called the third into the room. K31 then lost consciousness. This soldier may also have raped her while she was unconscious, but the next thing she could remember was waking up naked and on her back in the empty room. When she was finally able to stand up, she left the room and went to the first floor, which was deserted."
P.16. Evidence of age-related incapacity.
A. Legal source/authority and evidence:
"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."
