Table of contents:
Element:
5.b.ii. [Mental element for Element 1] Consequence of invading: The perpetrator was aware that the invading of the body, resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body would occur in the ordinary course of events; OR
P.19. Evidence inferred from an utterance, a document or a deed.
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. 587-588, 651, 653:
"587. [ ] Kovac would also invite his friends to his apartment, and he sometimes allowed them to rape one of the girls . Kovac also sold three of the girls, A.S., A.B. and FWS-87. Prior to their being sold, Kovac had given two of these girls, FWS-75 and A.B., to other Serb soldiers who abused them for more than three weeks before taking them back to Kovac, who proceeded to sell one and give the other away to acquaintances of his."
"588. The accused Radomir Kovac knew of the attack against the Muslim civilian population, and he also perpetuated it by prolonging the ordeal of these girls by selling or giving them to men whom he knew would rape them and abuse them."
"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 ?ikića 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."
"653. The Trial Chamber is therefore satisfied that the allegations made in paragraph 5.3 of the Indictment have been proved beyond reasonable doubt, namely that Dragoljub Kunarac took FWS-75 and D.B. to Ulica Osmana Dikica no 16 for them to be raped. On this occasion, Kunarac personally had sexual intercourse with D.B. in the knowledge that she did not consent and aided and abetted the gang-rape of FWS-75 at the hands of several of his soldiers by taking her to the house in the knowledge that she would be raped there and that she did not consent to the sexual intercourse."
P.20. Evidence inferred from a circumstance.
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 paras. 76, 78, 79, 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."
"78. For example, the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia indicted the highest-ranking civilian officer in a municipality in Bosnia and Herzegovina who "knew or had reason to know" that the Chief of Police in the area was about to force others to commit acts of sexual assault or had done so and failed to take "necessary and reasonable measures" to prevent such acts or to punish the Chief of Police after the acts came to his attention.64 [ ]"
"64. ICTFY, Miljkovic Indictment, paras. 31, 33, 34."
79. Thus, the law of command responsibility fully applies to all those in high-level positions with the authority to make decisions, formulate policy and influence the issuance of directives within the State, region or locale where international crimes are being committed. Holding commanders, superiors and other authorities to a "knew or should have known" standard is appropriate for assessing liability at this level, and where acts of sexual slavery or sexual violence are occurring on a widespread or notorious basis, such defendants will be presumed to have knowledge of the acts and of their international prohibition. [ ]"
