Table of contents:
3.1. Exercise of the right of ownership.
3.1.1. Exercise of any or all the powers attached to the rights of ownership.
P.1. Evidence of actions indicating the buying, selling, trading or inheriting of a person.
P.1.1. Evidence of debt bondage
P.1.2. Evidence of transportation or transfer.
P.1.4. Evidence of exchanging persons.
P.1.5. Evidence of recruitment.
P.1.6. Evidence of harbouring.
P.1.7. Evidence of sending of persons.
P.1.8. Evidence of receipt of persons.
P.1.9. Evidence of monetary payment or payment in goods for a person or their services.
P.1.10. Evidence of giving a person as a gift or reward.
P.2. Evidence of actions indicating similar deprivation of liberty.
P.2.1. Evidence that a person has been subject to forced labour.
P.2.2. Evidence of the reduction of a person to a servile status.
P.2.4. Evidence of trafficking in women.
P.2.5. Evidence of trafficking in children.
P.2.6. Evidence that the victim could not leave, despite a lack of physical restraints.
P.2.7. Evidence of assignment to a person or treatment as personal property.
P.2.8. Evidence of controlling other peoples access to the victim.
3.1.2. Benefits obtained by committing the crime of enslavement.
P.3. Evidence of benefit to the perpetrator.
P.3.1. Evidence of the accruing of some gain.
3.2. Impossibility of the person to take decisions voluntarily.
3.2.1. Absence of free will or real choice while taking decisions
P.4. Evidence of lack of consent or free will.
P.4.1. Evidence of fear of violence.
P.4.2. Evidence of threat of force.
P.4.3. Evidence of other forms of coercion.
P.4.6. Evidence of false promises.
P.4.8. Evidence of abuse of power.
P.4.9. Evidence of giving or receiving of payments to achieve the consent of the person in control.
P.4.10. Evidence of the victims position of vulnerability.
P.4.11. Evidence of socio-economic conditions.
P.4.12. Evidence of ignorance of the victims.
P.4.13. Evidence that the person had no real choice as to whether they would work.
P.5. Not required: Evidence that the victim did not consent to the enslavement.
3.3. Exercise of all types of control over the person.
3.3.1. Exercise of control, physical or psychological, over the person.
P.6. Evidence of control of someones movement or their physical environment.
P.6.1. Evidence of deprivation of the right to move.
P.6.2. Evidence of solitary confinement.
P.6.3. Evidence of the restriction of freedom of choice.
P.6.4. Evidence that the person has been deprived of the exercise of other rights.
P.6.5. Evidence of being guarded by armed soldiers/persons.
P.6.6. Evidence of being supervised by agents.
P.6.7. Evidence of withholding of benefits/payments.
P.7. Evidence of psychological control.
P.7.1. Evidence of psychological oppression.
P.7.2. Evidence of psychological restraints.
P.7.3. P.7.3. Evidence that the victim felt she was treated like property.
P.8. Evidence of control of sexuality.
P.8.2. Evidence of enforced prostitution.
P.9. Evidence of measures taken to prevent or deter escape.
P.9.1. Evidence of keeping somebody in captivity/detention.
P.9.2. Evidence that the person was locked up.
P.9.3. Evidence of isolation practices.
P.9.4. Evidence of confiscation of passports.
P.10. Evidence of subjection to cruel treatment and abuse.
P.10.1. Evidence of exploitation.
P.10.2. Evidence of punishment.
P.10.3. Evidence of poor sanitary conditions.
P.10.4. Evidence of inhumane conditions of work.
P.10.5. Evidence of inhumane/degrading/cruel treatment.
P.10.6. Evidence of lack or small portions of food.
P.10.7. Evidence of the physical consequences of the work on the health of the detainees.
P.10.8. Evidence of exposure to dangerous conditions.
P.10.9. Evidence of lack of remuneration.
P.10.10. Evidence of disproportionate work.
P.10.11. Evidence of long working hours.
3.3.2. Elements showing how control has been applied.
P.11. Evidence of the duration.
P.11.1. Evidence of duration of the exercise of powers of ownership.
P.11.2. Evidence of long periods of detention.
P.12. Evidence of assertion of exclusivity.
P.12.1. Evidence of the exclusivity of the control.
3.4. Use or threat of violence.
P.13. Evidence of the use of force, threat of force or coercion during enslavement.
P.13.1. Evidence of physical violence.
P.13.2. Evidence of threat or coercion.
P.13.5. Evidence of being fired at/shot/gassed.
P.13.6. Evidence of starvation.
P.13.7. Evidence of ill-treatment.
P.13.8. Evidence of physical hardship.
P.13.9. Evidence of menace of any penalty.
P.13.10. Evidence of oppression.
P.13.11. Evidence of harassment.
P.13.12. Evidence of other forms of mistreatment/barbarous acts.
Element:
A. Evidentiary comment:
This element is identical to the first element of the Crime Against Humanity of Enslavement, Article 7 (1) (c). Commentators therefore note that sexual slavery is a type of enslavement with sexual consequences:
"109. "Enslavement" in paragraph 1(c) means "the exercise of any or all of the powers attaching to the rights of ownership over a person " (paragraph 2(c)), and "slavery" means the "status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised" (article 1 para. 1 of the 1926 Slavery Convention). The definition of "enslavement" thus contains the actus reus of the offense; the word "slavery" denotes the condition or the status of the victim and should be interpreted as being a consequence or result from acts of enslavement. But see commentary on paragraph 1(c) "enslavement", supra. In her report, the Special Rapporteur used the term "sexual" as an adjective to describe a form of slavery, not to denote a separate offense, 1998 Slavery Rapporteur Report, supra note 101, para. 30.
(Boot, M., "Rape or any other form of sexual violence of comparable gravity", in Triffterer (1999), marg. note 47). See also Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, at para. 17, U.N. Doc. No. E/CN.4/Sub.2/1998/13 (1998); Update to the Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, at para. 8, U.N. Doc. No. E/CN.4/Sub.2/2000/21 (2000); Valerie Oosterveld, "Sexual Slavery and the International Criminal Court: Advancing International Criminal Law,"25 Michigan Journal of International Law 605, 651 (2004).
3.1. Exercise of the right of ownership.
3.1.1. Exercise of any or all the powers attached to the rights of ownership.
P.1. Evidence of actions indicating the buying, selling, trading or inheriting of a person.
P.1.1. Evidence of debt bondage
A. Legal source/authority and evidence:
Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, paras. 14-15:
"14. With respect to the general phenomenon, they mentioned that these labor conditions generally affect seasonal agricultural workers [ ] held against their will through [ ] debt peonage [ ]"
"15. [ ] in addition, on arriving they are informed that they are already in debt to the estate for transportation costs, road and board, both on the trip and in their place of work. [ ]"
[B. Evidentiary comment:]
P.1.2. Evidence of transportation or transfer.
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. 42, 753:
"42. [ ] Some spent a few days in one place before being moved to another apartment, generally with different soldiers. Thus , for example, according to their testimony on or about 30 October 1992, FWS-75, FWS-87, A.S. and A.B., a girl aged twelve years at the time, were moved from "Karamans house" and taken to a apartment in the so-called Lepa-Brena block in Foca.131 [ ] In mid-November, the two women were taken to a house near the Hotel Zelengora. They stayed in this house for approximately 20 days during which they were continually raped by a group of soldiers. This group of soldiers subsequently took them to yet another apartment where they continued to rape them for about two weeks.133 On or about 25 December 1992, they were brought back to the apartment in the Lepa Brena block. [ ]"
"131. FWS-75, T 1443-1445; FWS-87, T 1707-1708 and A.S., T 2005-2007. See also FWS-190, T 3372-3375.
"753. Paragraph 11.3 of the Indictment alleges that FWS-75 and A.B. were detained in Radomir Kovacs apartment from about 31 October 1992 until about 20 November 1992, during which time they had to do household chores and sexually please soldiers , including Radomir Kovac. The Indictment alleges that Radomir Kovac and Jagos Kostic frequently raped them. [ ] Paragraph 11.3 further alleges that, around 20 November 1992, Kovac took FWS-75 and A.B. from his apartment to a house near Hotel Zelengora where he handed them to other Serb soldiers. The two girls were kept in this house, which Kovac visited for about two weeks. Thereafter, they were taken to an apartment in Pod Masala, where they remained for about fifteen days before being eventually taken back to Kovacs apartment on or about 25 December 1992. [ ]"
Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 14:
"14.With respect to the general phenomenon, they mentioned that these labor conditions generally affect seasonal agricultural workers [ ] transported to estates far from their places of residence [ ]"
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
"542.[ ] the "acquisition" or "disposal" of someone for monetary or other compensation, is not a requirement for enslavement. Doing so, however, is a prime example of the exercise of the right of ownership over someone [ ]"
[B. Evidentiary comment:]
P.1.4. Evidence of exchanging persons.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:
"193. [ ] many non-Serb detainees were taken out of the KP Dom during the period covered by the Indictment, allegedly to be exchanged or in order to carry out certain tasks such as picking plums. Many of them did not come back and were never seen again;305 [ ]"
[B. Evidentiary comment:]
P.1.5. Evidence of recruitment.
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. 525, 527:
"525. The accused in the Milch case before the US Military Tribunal was charged with slave labour and deportation to slave labour of German nationals and nationals of other countries as a crime against humanity.1271 The Tribunal held that:
Does anyone believe that the vast hordes of Slavic Jews who laboured in Germanys war industries were accorded the rights of contracting parties? They were slaves, nothing less-kidnapped, regimented, herded under armed guards, and worked until they died from disease, hunger, exhaustion. [...] [ ]"
"1271. US v Milch, Judgement of 31 July 1948, reprinted in Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No.10, Vol II (1997), p 773."
"527."[ ] The Tokyo judgement1279 also did not systematically distinguish between deportation to slave labour, slave labour and enslavement, nor did it attempt to define them in any detail.1280 With respect to the use of labour by civilians from occupied territories, the following was stated:
Having decided upon a policy of employing prisoners of war and civilian internees on work directly contributing to the prosecution of the war, and having established a system to carry that policy into execution, the Japanese went further and supplemented this source of manpower by recruiting labourers from the native population of the occupied territories. [ ]"
"1279. Reprinted in R?ling and Rüter, The Tokyo Judgment: The International Military Tribunal for the Far East (IMTFE) 29 April 1946-12 November 1948, Vol I (1977), pp 1-466 (rendered on 4-12 Nov 1948).
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:
"107. As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: "the recruitment [ ] of persons [ ][19]"
[B. Evidentiary comment:]
P.1.6. Evidence of harbouring.
A. Legal source/authority and evidence:
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:
"107.As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: "the [ ] harbouring [ ] of persons [ ][19]"
[B. Evidentiary comment:]
P.1.7. Evidence of sending of persons.
A. Legal source/authority and evidence:
United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 567, 489:
"[567] [ ] shortly after Sauckel had taken office, he had the governing authorities in the various occupied territories issue decrees, establishing compulsory labour service in Germany. Under the authority of these decrees Sauckels Commissioners, backed up by the police authorities of the occupied terrotries, obtained and sent to Germany the labourers which were necessary to fill the quotas given them by Sauckel. He described so-called voluntary recruiting by Janates a whole batch of male and female agents just as was done in the olden times for shanghaiing. That real voluntary recruiting was the exception rather than the rule is shown by Sauckels statement on 1st March, 1944, that out of five million foreign workers who arrived in Germany not even 200,000 came voluntarily [ ]"
"[489] The evidence showed that workers destined for the Reich were sent under guard to Germany, often packed in trains [ ]"
[B. Evidentiary comment:]
P.1.8. Evidence of receipt of persons.
A. Legal source/authority and evidence:
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:
"107. As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: "the [ ] receipt of persons [ ][19]"
[B. Evidentiary comment:]
P.1.9. Evidence of monetary payment or payment in goods for a person or their services.
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. 42, 75, 213, 587, 756, 779:
"42. [ ] On or about 25 December 1992, they were brought back to the apartment in the Lepa Brena block. A.B. was sold for 200 DM and never seen again; FWS-75 was handed to DP 1.134 While in the Lepa Brena apartment, the women were locked in and permitted no contact with the outside world.135"
"135. FWS-75, T 1599; FWS-87, T 1814-1815; A.S., T 2012 and T 2022."
"75. Sometime in February 1993, she and A.S. were sold by Radomir Kovac to two Montenegrin soldiers for 500 Deutschmarks each. [ ] During the rebuttal case, FWS-87 added that she and A.S. overheard a conversation between Kovac and two Montegrins who had come to Kovacs apartment, in which they were discussing the sale of the girls. FWS-87 rejected the Defence submission that Radomir Kovac might have paid these men for taking the girls to Montenegro.225 In particular, FWS-87 stated that Radomir Kovac had not sold his TV before they left for Montenegro.226"
"225. T 6130.
226. T 6113. The importance of the alleged sale of the TV will be dealt with later."
"213. After a month she and FWS-87 were taken away by a certain "Misko" and another man, both of whom were from Montenegro. She later learnt that they had been sold for 500 Deutschmarks each and a truckload of washing powder. The men who had bought them mocked them for having been bought at such a price. They were taken first to Niksic and then to Podgorica.627"
"587. [ ] 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."
"756. The day after they had returned, A.B. and FWS-75 were taken from Radomir Kovacs apartment. A.B. was taken by a man called "Dragec", who gave Kovac 200 Deutschmarks in the process, while FWS-75 was handed over to DP 1 and Dragan "Zelja" Zelenovic . The Trial Chamber finds that this sexual exploitation of A.B. and FWS-75, in particular their sale, constitutes a particularly degrading attack on their dignity."
"779. The Trial Chamber finds that, sometime in February 1993, two Montenegrins came to Radomir Kovacs apartment. [ ] The two girls crept out of the kitchen into the corridor from where they listened to the conversation before rushing back to the kitchen when they heard the men moving. FWS-87 heard that the two girls were being sold for 500 Deutschmarks each, but A.S. did not hear the exact words of the conversation. Not long after the transaction, possibly the next day, the two Montenegrins came back to take the girls away. While they were in the car with the two Montenegrins, these two men laughed at their being sold for such a small amount of money and, as A.S. recounted, also for a truck-load of washing powder."
[B. Evidentiary comment:]
P.1.10. Evidence of giving a person as a gift or reward.
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. 43, 587:
"43. [ ] On 2 August 1992, they, together with five other women, were taken out of the Kalinovik High School and brought to a house in Aladza.136 FWS-191 was told that the women were "rewards" for the Serbs who had captured the Rogoj pass that very day.137 [ ]"
"587. [ ] 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."
[B. Evidentiary comment:]
P.2. Evidence of actions indicating similar deprivation of liberty.
P.2.1. Evidence that a person has been subject to forced labour.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 195:
"195. [ ] the Appeals Chamber takes the view that such an opinion is not sufficient to establish forced labour and that the detainees personal conviction that they were forced to work must be proven with objective and not just subjective evidence. In this case, given the particular circumstances of the detention centre, there was sufficient objective evidence to prove that the detainees were in fact forced to work, thus bearing out their conviction that the labour they performed was forced."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 359, 373:
"359.International humanitarian law does not prohibit all labour by protected persons in armed conflicts.965 Generally, the prohibition is against forced or involuntary labour.966 It is clear from the Tribunals jurisprudence that "the exaction of forced or compulsory labour or service" is an "indication of enslavement", and a "factor to be taken into consideration in determining whether enslavement was committed".967"
"965.Kunarac Trial Judgment, par 542.
"373. In considering whether an individual detainee was forced to work, the Trial Chamber considers the following factors to be relevant: the substantially uncompensated aspect of the labour performed, the vulnerable position in which the detainees found themselves, the allegations that detainees who were unable or unwilling to work were either forced to or put in solitary confinement, claims of longer term consequences of the labour, the fact of detention and the inhumane conditions in the KP Dom."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 535, 542:
"535. [ ] The Court (ECtHR) expressly took account of the 1930 Forced and Compulsory Labour Convention and the 1957 Forced Labour Convention in interpreting "forced or compulsory labour" as used in the European Convention.1313 It found that the word "labour" is not limited to manual labour.1314 Concerning the adjective "forced", the Court stated that "it brings to mind the idea of physical or mental constraint [...]."1315 As to "compulsory", there has to be work ""exacted [...] under the menace of any penalty" and also performed against the will of the person concerned, that is work for which he "has not offered himself voluntarily"".1316 The Court also referred to the jurisprudence of the European Commission, which has consistently considered the elements of forced or compulsory labour to be that the work or service is performed against the will of the person concerned and that the requirement that the work or service is performed is unjust or oppressive or the work or service itself involves unavoidable hardship.1317 The Court expressly distanced itself from the second element identified by the Commission,1318 and adopted a different approach,1319 eventually holding that there was no compulsory labour for the purposes of Article 4(2) of the European Convention.1320"
"542. [ ] Further indications of enslavement include [ ] the exaction of forced or compulsory labour or service [ ]"
United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 526:
"The record is filled with Goerings admissions of his complicity in the use of slave labor Workers were forced to come to the Reich. That is something I have not denied That I requested inmates of concentration camps for the armament of the Luftwaffe is correct and it is to be taken as a matter of course".
Evan Julian et al. v. New Zealand, Communication No. 601/1994, Decision (Human Rights Committee), 29 April 1997, UN Doc. CCPR/C/59/D/601/1994, para. 2.4:
"2.4. In August 1945, following the Japanese surrender to Allied Forces, the horrific fate of the Far East prisoners of war was fully discovered. [ ] The vast majority had been used as forced slave labour on road and airfield construction. [ ] Many had been transported in inhumane and unsanitary conditions by sea to Japan to work on the docks, the shipyards and in coal and copper mines."
Mar?a Mej?a v. Guatemala, Case No. 10.553, Report No. 32/96, OEA/Ser.L/V/II.95 Doc. 70 rev., Decision, (Inter-American Commission on Human Rights), 16 October 1996, para. 62:
"62. The persecution by the members of the PACs and the military commissioners against those who leave the PACs constitutes a violation of Article 6.2 of the Convention. Members of the PACs are required to participate in watch patrols and other vigilance and similar types of work without any compensation. Obligatory participation in the PACs thus implies an obligation of forced labor with the PACs. [27] As a result, the Commission concludes that Article 6.2 of the Convention, which expressly proscribes forced labor, prohibits forced participation in the PACs and protects the right to refuse such an obligation. The Commission also points out that the exercise of the rights protected in the American Convention can never justify attacks or reprisals by state agents. [28]"
28. Velásquez Rodr?guez Case, Judgment ofJuly 29, 1988, par. 144."
[B. Evidentiary comment:]
P.2.2. Evidence of the reduction of a person to a servile status.
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. 534, 728:
"534. [ ]In the Van Droogenbroeck v Belgium case,1307 the European Commission observed obiter dictum, that the distinction between servitude and forced labour is not explicitly stated in the European Convention and that
It may be considered, however, that in addition to the obligation to perform certain services for others, the notion of servitude embraces the obligation for the "serf " to live on another persons property and the impossibility of altering his condition .1308
The European Commission was chiefly guided in this interpretation by Article 1 of the Supplementary Slavery Convention.1309"
"728. Paragraph 10.2 of Indictment IT-96-23 alleges that FWS-186 and FWS-191 were kept in the abandoned house in Trnovace for approximately 6 months starting on 2 August 1992. It further alleges that, during the time of their detention, FWS-191 was constantly raped by the accused Dragoljub Kunarac while FWS-186 was constantly raped by DP 6. Dragoljub Kunarac reserved FWS-191 for himself. According to paragraph 10.3, the girls were treated as personal property of the accused Kunarac and DP 6, they had to do household chores and they had to obey all demands."
Van Droogenbroek v. Belgium (Article 50), Application No. 7906/77, Judgement (Merits) (European Court of Human Rights), 24 June 1982, para. 58
"58. The applicant's first allegation was that by being placed at the Government's disposal he was held in "servitude", contrary to paragraph 1, in that he was subjected "to the whims of the administration". The situation complained of did not violate Article 5 par. 1 (art. 5-1) (see paragraph 42 above). Accordingly, it could have been regarded as servitude only if it involved a "particularly serious" form of "denial of freedom" (see paragraphs 79-80 of the Commission's report), which was not so in the present case."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
"525. [ ]The US Military Tribunal in the Pohl case, in considering war crimes and crimes against humanity charges, succinctly held as follows:
Slavery may exist even without torture. Slaves may be well fed, well clothed, and comfortably housed, but they are still slaves if without lawful process they are deprived of their freedom by forceful restraint. We might eliminate all proof of ill-treatment, overlook the starvation, beatings, and other barbarous acts, but the admitted fact of slavery - compulsory uncompensated labour - would still remain. There is no such thing as benevolent slavery. Involuntary servitude, even if tempered by humane treatment, is still slavery.1273"
[B. Evidentiary comment:]
P.2.4. Evidence of trafficking in women.
A. Legal source/authority and evidence:
"542. [ ] Further indications of enslavement include [ ]the exaction of forced or compulsory labour or service [ ]often, though not necessarily [ ] involving [ ] human trafficking.[ ]"
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:
"107. As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: "the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs."[19]"
[B. Evidentiary comment:]
P.2.5. Evidence of trafficking in children.
A. Legal source/authority and evidence:
"542. [ ] Further indications of enslavement include [ ]the exaction of forced or compulsory labour or service [ ]often, though not necessarily [ ] involving [ ] human trafficking.[ ]"
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:
"107. As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: "the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs."[19]"
[B. Evidentiary comment:]
P.2.6. Evidence that the victim could not leave, despite a lack of physical restraints.
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. 255:
"255. Lastly, as to the crime of enslavement, the Trial Chamber found that the women at Trnovace "were not free to go where they wanted to even if, as FWS-191 admitted, they were given the keys to the house at some point". 337 In coming to this finding, the Trial Chamber accepted that " the girls, as described by FWS-191, had nowhere to go, and had no place to hide from Dragoljub Kunarac and DP 6, even if they had attempted to leave the house ."338 The Appeals Chamber considers that, in light of the circumstances of the case at bar in which Serb soldiers had exclusive control over the municipality of Foca and its inhabitants, and of the consistent testimony of the victims, the findings of the Trial Chamber are entirely reasonable. For the foregoing reasons, this ground of appeal fails."
"337 - Trial Judgement, para 740.
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 740, 750:
"740. The Trial Chamber further accepts that the witnesses were not free to go where they wanted to, even if, as FWS-191 admitted, they were given the keys to the house at some point. Referring to the factual findings with regard to the general background , the Trial Chamber accepts that the girls, as described by FWS-191, had nowhere to go, and had no place to hide from Dragoljub Kunarac and DP 6, even if they had attempted to leave the house. [ ]"
"750. [ ] 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."
Update to the Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, at para. 50, U.N. Doc. No. E/CN.4/Sub.2/2000/21 (2000):
"50. The Special Rapporteur understands that based on customary law interpretations of the crime of slavery, and thus sexual slavery, there are no requirements of any payment or exchange; of any physical restraint, detention or confinement for any set or particular length of time; nor is there a requirement of any legal disenfranchisement. [ ] It is the status or condition of being enslaved which differentiates sexual slavery from other crimes of sexual violence, such as rape. One respect in which slavery differs from imprisonment or arbitrary detention is that the limitations on autonomy can be solely psychological or situational, with no physical restraints."
Eve La Haye, "Article 8 (2) (b) (xxii)-2 - Sexual Slavery", in Roy S. Lee, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), p. 191:
"[I]t was stressed by some delegations that the expression similar deprivation of liberty does not exclude certain situations, which took place during the Rwandese and Bosnian conflicts, in which women, sexually abused, were not locked in a particular place and therefore were free to go, but were in fact deprived of their liberty as they had nowhere else to go and feared for their lives."
[B. Evidentiary comment:]
P.2.7. Evidence of assignment to a person or treatment as personal property.
A. Legal source/authority and evidence:
"7. Finally, with regard to Counts 18 to 20 (crimes against humanity (enslavement and rape) and violation of the laws or customs of war (rape)), on 2 August 1992, Kunarac raped FWS-191 and aided and abetted the rape of FWS-186 by the soldier DP 6 in an abandoned house in Trnovace. [ ] While FWS-191 and FWS-186 were kept at the Trnovace house, Kunarac and DP 6 deprived the women of any control over their lives and treated them as their property. Kunarac established these living conditions for FWS-191 and FWS-186 in concert with DP 6, and both Kunarac and DP 6 personally committed the act of enslavement. [ ]"
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 36, 225, 742, 781
"36. Witnesses described how, as soon as they arrived at Foca High School, women and girls were either taken out of the school, or into the classrooms where they were raped.116 They would sometimes be raped together. Each one of them would be assigned to a soldier and raped by him. [ ]"
"225. D.B. recalled that she was brought to the house in Miljevina658 by a certain "Misko". [ ] Upon her arrival, each soldier took one girl exclusively for himself. The witness herself was selected by Radovan Stankovic, who raped her constantly during her stay in the house.662 [ ]"
"658. Which she identified on Ex P11, photograph 7355 - T 3818.
662. T 3830-3832."
"742. The Trial Chamber is satisfied that FWS-191 and FWS-186 were denied any control over their lives by Dragoljub Kunarac and DP 6 during their stay there. [ ] The two women were treated as the personal property of Kunarac and DP 6. The Trial Chamber is satisfied that Kunarac established these living conditions for the victims in concert with DP 6. Both men personally committed the act of enslavement. [ ]
"781. The Trial Chamber finds that Radomir Kovacs conduct towards the two women was wanton in abusing and humiliating the four women and in exercising his de facto power of ownership as it pleased him. Kovac disposed of them in the same manner. For all practical purposes, he possessed them, owned them and had complete control over their fate, and he treated them as his property. [ ]"
Report of the Special Rapporteur on the situation of human rights in the Democratic Republic of the Congo, U.N. Doc. No. E/CN.4/2003/43, 15 April 2003,:
"66. Girls are enlisted into armed groups, either as child soldiers or as wives of combatants, the victims of forced marriages. The cases that have been brought to the Special Rapporteurs attention amount to slavery by reason of the treatment meted out to these women, who become the private property of the soldiers. [ ]"
[B. Evidentiary comment:]
P.2.8. Evidence of controlling other peoples access to the victim.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 39, 587, 759:
"39. [ ] FWS-95 stated, however, that one guard once tried without success to stop soldiers from entering the hall. The soldiers told him that they had a document signed by Dragan Gagovic which allowed them to enter the hall and to take women out; the document allegedly stated that soldiers needed to have sexual intercourse to improve their fighting spirit.123 FWS-48 stated that some soldiers told her that they were ordered to rape their victims .124"
"123. T 2217-2219. See also FWS-105, T 4244.
124. T 2700."
"587. While four girls, FWS-75, FWS-87, A.B. and A.S., were kept in his apartment , the accused Radomir Kovac abused them and raped three of them many times, thereby perpetuating the attack upon the Muslim civilian population. Kovac would also invite his friends to his apartment, and he sometimes allowed them to rape one of the girls."
"759. [ ] The Trial Chamber finds that the accused Radomir Kovac had sexual intercourse with the two women in the knowledge that they did not consent, and that he substantially assisted other soldiers in raping the two women. He did this by allowing other soldiers to visit his apartment and to rape the women or by encouraging the soldiers to do so, 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. [ ]"
[B. Evidentiary comment:]
3.1.2.B enefits obtained by committing the crime of enslavement.
P.3. Evidence of benefit to the perpetrator.
P.3.1. Evidence of the accruing of some gain.
A. Legal source/authority and evidence:
"542. Under this definition, indications of enslavement include [ ] often, the accruing of some gain to the perpetrator [ ]"
[ ] the "acquisition" or "disposal" of someone for monetary or other compensation is not a requirement for enslavement. Doing so, however, is a prime example of the exercise of the right of ownership over someone."
3.2. Impossibility of the person to take decisions voluntarily.
3.2.1.Ab sence of free will or real choice while taking decisions
P.4. Evidence of lack of consent or free will.
P.4.1. Evidence of fear of violence.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 194:
"194. [ ] those who refused to work did so out of fear on account of the disappearances of detainees who had gone outside of the KP Dom. The climate of fear made the expression of free consent impossible and it may neither be expected of a detainee that he voice an objection nor held that a person in a position of authority need threaten him with punishment if he refuses to work in order for forced labour to be established. In such circumstances, the fact that a detainee raised an objection is immaterial in ascertaining whether it was truly impossible to object."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 359, 377,740:
"359. [ ] In essence, the determination of whether protected persons laboured involuntarily is a factual question which has to be considered in light of all the relevant circumstances on a case by case basis. Such circumstances may include the following:
The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example [ ] the fear of violence [ ] 968
What must be established is that the relevant persons had no real choice as to whether they would work."
"968. Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, par 542."
"377. [ ] The beliefs and fears of the detainees, in particular in the context of the general inhumane conditions and atmosphere in the KP Dom, are of course relevant to a determination of whether they worked voluntarily, but a reliance solely on such unsupported conclusions expressed by the witnesses would not be safe in the circumstances outlined."
"740. The Trial Chamber further accepts that the witnesses were not free to go where they wanted to, even if, as FWS-191 admitted, they were given the keys to the house at some point. Referring to the factual findings with regard to the general background , the Trial Chamber accepts that the girls, as described by FWS-191, had nowhere to go, and had no place to hide from Dragoljub Kunarac and DP 6, even if they had attempted to leave the house.[ ]"
Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 14:
"14. With respect to the general phenomenon, they mentioned that these labor conditions generally affect seasonal agricultural workers [ ] held against their will through violence [ ]"
[B. Evidentiary comment:]
P.4.2. Evidence of threat of force.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 359:
"359. [ ] in essence, the determination of whether protected persons laboured involuntarily is a factual question which has to be considered in light of all the relevant circumstances on a case by case basis. Such circumstances may include the following:
The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force [ ] 968
What must be established is that the relevant persons had no real choice as to whether they would work."
"968. Kunarac Trial Judgment, par 542."
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, 542:
"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.205 [ ]"
"205. T 1720 and T 1814-1815."
"210. A.S. stayed in Radomir Kovacs apartment for about a month or two. [ ] Jagos Kostic would rape her anytime he wanted, orally and vaginally, and she had no choice but to comply with his demands; he would also sometimes beat her and once threatened to cut her throat.621 [ ]"
"542. Under this definition, indications of enslavement include elements of control and ownership; the restriction or control of an individuals autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator . The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion ; [ ]"
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:
"107. As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: "the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force [ ][19]"
[B. Evidentiary comment:]
P.4.3. Evidence of other forms of coercion.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 194:
"194. [ ] the Appeals Chamber is satisfied that the detainees worked [ ] in the hope of obtaining additional food.[ ]"
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 359:
"359. [ ] In essence, the determination of whether protected persons laboured involuntarily is a factual question which has to be considered in light of all the relevant circumstances on a case by case basis. Such circumstances may include the following:
The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example other forms of coercion 968
What must be established is that the relevant persons had no real choice as to whether they would work."
"968. Kunarac Trial Judgment, par 542."
"742. "The Trial Chamber is satisfied that FWS-191 and FWS-186 were denied any control over their lives by Dragoljub Kunarac and DP 6 during their stay there. They had to obey all orders, they had to do household chores and they had no realistic option whatsoever to flee the house in Trnovace or to escape their assailants.[ ]"
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:
"107. As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: "the recruitment, transportation, transfer, harbouring or receipt of persons, by means of [ ]other forms of coercion [ ][19]"
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:
"107. As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: "the recruitment, transportation, transfer, harbouring or receipt of persons, by [ ] other forms [ ] of abduction [ ]".
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 359:
"359. [ ] in essence, the determination of whether protected persons laboured involuntarily is a factual question which has to be considered in light of all the relevant circumstances on a case by case basis. Such circumstances may include the following:
The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example [ ] deception [ ] 968
What must be established is that the relevant persons had no real choice as to whether they would work."
"968 - Kunarac Trial Judgment, par 542."
"542. Under this definition, indications of enslavement include elements of control and ownership; the restriction or control of an individuals autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator . The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, [ ] deception or false promises; [ ]"
Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 15:
"15. [ ] when they discover that they were deceived its too late, for they cannot leave the estate or stop working until they pay their "debts" [ ]"
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: paras. 107,108:
"107. As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: "the recruitment, transportation, transfer, harbouring or receipt of persons, by means of [ ] deception [ ][19]"
"108. [ ] the victims of trafficking are tricked by criminals: representatives of criminal mafias, often people of respectable appearance who pass themselves off as businessmen, make contact with the victims, and offer them work in a country of destination.[ ][20]"
Annual Report 2001 I-ACommHR, (OEA/Ser./L/V/II.114 doc. 5 rev.), 16 April 2001, para. 126|Annual Report of the Inter-American Commission on Human Rights 2001, OEA/Ser./L/V/II.114 doc. 5 rev.) 16 April 2001, paras. 126, 127:
"126. [ ]Unlike migrant smuggling or guiding operations, which, as explained, entail a mutually agreed commercial transaction, for the Rapporteurship human trafficking implies [ ] deceit [ ][79]"
"79. Kyle and Dale, Id. pp. 32-4."
"127. Members of these criminal organizations frequently deceive people to lure them to use their services [ ]"
[B. Evidentiary comment:]
P.4.6. Evidence of false promises.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 359:
"359. [ ] In essence, the determination of whether protected persons laboured involuntarily is a factual question which has to be considered in light of all the relevant circumstances on a case by case basis. Such circumstances may include the following:
The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example [ ] false promises [ ] 968
What must be established is that the relevant persons had no real choice as to whether they would work."
"968 - Kunarac Trial Judgment, par 542."
"527. [ ] this recruiting of labourers was accomplished by false promises [ ]"
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
United States of America v. Erhard Milch, Case No. 2, Judgement (Military Tribunal No. II), 16 April 1947, reproduced in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Proceedings, Vol. 2 (1949-53), p. 789:
"It was sought to disguise the harsh realities of the German foreign labor policy by the use of specious legal and economic terms, and to make such policy appear as the exercise of conventional labor relations and labor law. The fiction a "labor contract" was frequently resorted to, especially in the operations of the Todt Organisation, which implied that foreign workers were given a free choice to work or not to work for German military industry. This, of course, was purely fictitious, as is shown by the fact that thousands of these "contract workers" jumped from the trains transporting them to Germany and fled into the woods. Does anyone believe that the vast hordes of Slavic Jews who labored in Germanys war industries were accorded the rights of contracting parties? [ ]"
Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 14, 15:
"14. With respect to the general phenomenon, they mentioned that these labor conditions generally affect seasonal agricultural workers recruited with fraudulent promises [ ]"
15. They alleged that the methods used to effectively deprive them of their liberty are [ ] a scheme of indebtedness that is a genuine trap. Once they reach the estate they realize that the promises with which they were hired, based on a price per hectare worked that has already been agreed upon are false, since the work in general is much more difficult than anticipated. [ ]"
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:
"107. As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: "the recruitment, transportation, transfer, harbouring or receipt of persons, by means of [ ] fraud [ ][19]"
[B. Evidentiary comment:]
P.4.8. Evidence of abuse of power.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 359:
"359. [ ] In essence, the determination of whether protected persons laboured involuntarily is a factual question which has to be considered in light of all the relevant circumstances on a case by case basis. Such circumstances may include the following:
The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example [ ] the abuse of power [...] 968
What must be established is that the relevant persons had no real choice as to whether they would work."
"968. Kunarac Trial Judgment, par 542."
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:
"107. As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: "the recruitment, transportation, transfer, harbouring or receipt of persons, by means [ ] of the abuse of power [ ][19]"
[B. Evidentiary comment:]
P.4.9. Evidence of giving or receiving of payments to achieve the consent of the person in control.
A. Legal source/authority and evidence:
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:
"107. As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: "the recruitment, transportation, transfer, harbouring or receipt of persons, by means [ ] of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person [ ][19]"
[B. Evidentiary comment:]
P.4.10. Evidence of the victims position of vulnerability.
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 259:
"259. As a result of the foregoing, the Chamber will have to determine on a case by case basis whether the forms of labour alleged in the Indictment were indeed undertaken voluntarily or whether the detainees were compelled to do so. To determine whether a person was not in a position to make a "real choice"695 to undertake labour in contravention of the law, the following criteria may be considered, in accordance with previous jurisprudence: [ ] (b) the vulnerable position in which the detainees found themselves; [ ]"
"695. Krnojelac Trial Judgement, para 372.
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 359, 373:
"359. [ ] in essence, the determination of whether protected persons laboured involuntarily is a factual question which has to be considered in light of all the relevant circumstances on a case by case basis. Such circumstances may include the following:
The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example [ ] the victims position of vulnerability [ ] 968
What must be established is that the relevant persons had no real choice as to whether they would work."
"968. Kunarac Trial Judgment, par 542."
"373. In considering whether an individual detainee was forced to work, the Trial Chamber considers the following factors to be relevant: [ ] the vulnerable position in which the detainees found themselves [ ]."
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:
"107. As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: "the recruitment, transportation, transfer, harbouring or receipt of persons, by means of [ ] a position of vulnerability [ ][19]"
[B. Evidentiary comment:]
P.4.11. Evidence of socio-economic conditions.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 359:
"359. [ ] In essence, the determination of whether protected persons laboured involuntarily is a factual question which has to be considered in light of all the relevant circumstances on a case by case basis. Such circumstances may include the following:
The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example [ ] socio-economic conditions.968
What must be established is that the relevant persons had no real choice as to whether they would work."
"968. Kunarac Trial Judgment, par 542."
Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 14:
14. [ ] many of these workers are poor and illiterate farmers or persons known as "sem terra," or landless rural poor from the states of Northeast Brazil, where jobs are hard to come by."
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 108:
"108. [ ] the victims of this type of crime are usually people with little education, no resources, family or connections, who in their desperation become embroiled in these operations without any information at all.[20]"
"20. See Chapter V, Third Progress Report of the Rapporteurship on Migrant Workers and Their Families, IACHR. http://www.cidh.org/annualrep/2001sp/cap.6.htm."
[B. Evidentiary comment:]
P.4.12. Evidence of ignorance of the victims.
A. Legal source/authority and evidence:
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 108:
"108. [ ] the traffickers take advantage of the fact that the victims do not know their rights, and they exploit cultural and language barriers to charge the migrants exorbitant amounts and make them believe that they are receiving a fair wage for their work.[ ][20]"
"20. See Chapter V, Third Progress Report of the Rapporteurship on Migrant Workers and Their Families, IACHR. http://www.cidh.org/annualrep/2001sp/cap.6.htm."
[B. Evidentiary comment:]
P.4.13. Evidence that the person had no real choice as to whether they would work.
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 259:
"259. As a result of the foregoing, the Chamber will have to determine on a case by case basis whether the forms of labour alleged in the Indictment were indeed undertaken voluntarily or whether the detainees were compelled to do so. To determine whether a person was not in a position to make a "real choice"695 to undertake labour in contravention of the law, the following criteria may be considered, in accordance with previous jurisprudence: [ ] (e) the fact and the conditions of detention;696 [ ]"
"695. Krnojelac Trial Judgement, para 372.
696. Krnojelac Trial Judgement, para 373."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 372, 380, 386 387:
"372. The Prosecution alleges that the detainees who were called out to work were forced to do so and that their work was involuntary and unpaid. It is claimed that even ill or injured detainees were forced to work, that those who refused were sent to solitary confinement and that when working they were guarded by the regular prison guards of the KP Dom or soldiers from outside the KP Dom.1001 Having considered all the relevant evidence, the Chamber is not satisfied that the general circumstances in the KP Dom during the Accuseds administration were of such a nature as to render the work of every detainee involuntary. Whether a particular detainee was forced to work is to be assessed on an individual basis, as to whether he had no real choice as to whether he had to work."
"1001. Indictment, para 5.42."
"380. [ ] the issue in every case is as already stated, whether the particular detainee had lost his choice to consent or to refuse the work he was doing."
"386. [ ] The Trial Chamber has already considered the evidentiary value of FWS-249s subjectively expressed opinions about whether the work he undertook was forced.1079 It is clear that FWS-249 obviously felt that he was forced to work. However, in the absence of any indication that during the Accuseds administration he did not want to work, or additional evidence regarding the nature and conditions of the work he did such as to indicate that he worked involuntarily, the substantive reasons advanced for his view that he was objectively forced to work is an insufficient basis for the Trial Chamber to find that he was in fact forced to work. It was not established that he lost his real choice as to whether he would work, whatever his apparent belief that he had no choice. As such, it has not been demonstrated that FWS-249 was forced to work in the metal workshop during the Accuseds administration."
"387. [ ]the Trial Chamber is not satisfied that it has been demonstrated that he was forced to work in the metal workshop. The desire for additional food, by itself and without more, did not deny his choice as to whether he would work."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 63, 68, 751, 780:
"63. [ ] They were also forced to do household chores like washing, cooking, laundering and cleaning. [ ]"
"68. [ ] While in the apartment, the girls were obliged to cook, clean and wash clothes.206"
"751. While they were detained in Radomir Kovacs apartment, the girls were required to take care of the household chores, the cooking and the cleaning."
"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. [ ]"
[B. Evidentiary comment:]
P.5. Not required: Evidence that the victim did not consent to the enslavement.
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. 120:
"120. In these respects, the Appeals Chamber rejects the Appellants contention that lack of resistance or the absence of a clear and constant lack of consent during the entire time of the detention can be interpreted as a sign of consent. Indeed, the Appeals Chamber does not accept the premise that lack of consent is an element of the crime since, in its view, enslavement flows from claimed rights of ownership; accordingly, lack of consent does not have to be proved by the Prosecutor as an element of the crime. [ ] In this respect, the Appeals Chamber considers that circumstances which render it impossible to express consent may be sufficient to presume the absence of consent. In the view of the Appeals Chamber, the circumstances in this case were of this kind."
Update to the Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, U.N. Doc. No. E/CN.4/Sub.2/2000/21, 6 June 2000,:
"51. [ ] As a jus cogens crime, neither a State nor its agents, including government and military officials, can consent to the enslavement of any person under any circumstances. Likewise, a person cannot, under any circumstances, consent to be enslaved or subjected to slavery. Thus, it follows that a person accused of slavery cannot raise consent of the victim as a defence.61"
"61. In the International Criminal Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda, the rules of procedure and evidence provide that in cases involving sexual assault, consent shall not be allowed as a defence if the victim had been subjected to or threatened with violence, duress, detention or psychological oppression. International Criminal Tribunal for the Former Yugoslavia, Rules of procedure and evidence, as amended on 25 July 1997, rule 96 (Evidence in cases of sexual assault); International Tribunal for Rwanda, Rules of procedure and evidence, adopted on 29 June 1995, Rule 96 (Rules of evidence in cases of sexual assault). See also final report, para. 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."
3.3. Exercise of all types of control over the person.
3.3.1. Exercise of control, physical or psychological, over the person.
P.6. Evidence of control of someones movement or their physical environment.
P.6.1. Evidence of deprivation of the right to move.
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. 339, 525, 542, 780:
"339. [ ] A.S. further testified that the girls were not free to go where they wanted while they were kept in the house.936"
"525. [ ] As to non-Jewish foreign labour , with few exceptions they were deprived of the basic civil rights of free men; they were deprived of the right to move freely or to choose their place of residence ; [ ] All these are the sign -marks of slavery, not free employment under contract.1272
"542. Under this definition, indications of enslavement include [ ] the restriction or control of an individuals autonomy, [ ] freedom of movement [ ]"
"780. [ ] [T]he Trial Chamber is satisfied that the events described in paragraph 11.6 of the Indictment have been proved beyond reasonable doubt. 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. [ ]"
Annual Report of the Inter-American Commission on Human Rights 2001, OEA/Ser./L/V/II.114 doc. 5 rev.) 16 April 2001, para. 126:
"126. [ ] these organizations also impose slave-like conditions on people by forcing them to work [ ] as sex workers without [ ] freedom of movement.[ ][79]"
[B. Evidentiary comment:]
P.6.2. Evidence of solitary confinement.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:
"193.[ ] the KP Dom had the capacity to house more than the maximum 500-700 non-Serbs detained, but the detainees were crowded into a small number of rooms. Solitary confinement cells designed to hold one person were packed with up to 18 people at a time, making it impossible for the detainees to move around the cell, or to sleep lying down299[ ]
[ ] they were kept in various rooms, including solitary confinement cells [ ]300"
[ ] Any attempts made by non-Serb detainees to improve their living conditions in the camp were punished with solitary confinement.[ ]309"
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 259:
"259.As a result of the foregoing, the Chamber will have to determine on a case by case basis whether the forms of labour alleged in the Indictment were indeed undertaken voluntarily or whether the detainees were compelled to do so. To determine whether a person was not in a position to make a "real choice"695 to undertake labour in contravention of the law, the following criteria may be considered, in accordance with previous jurisprudence: [ ] (c) the allegations that detainees who were unable or unwilling to work were either forced to do so or put in solitary confinement; [ ]"
"695. Krnojelac Trial Judgement, para 372."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 373:
"373. In considering whether an individual detainee was forced to work, the Trial Chamber considers the following factors to be relevant: [ ] the allegations that detainees who were unable or unwilling to work were either forced to or put in solitary confinement [ ]."
[B. Evidentiary comment:]
P.6.3. Evidence of the restriction of freedom of choice.
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. 43, 225, 542:
"43. [ ] The other two women stayed in the Trnovace house for approximately six months. During this period, the women had no control whatsoever over their lives and choices.139"
"139. See FWS-191, T 3182; FWS-186, T 2952."
"225. [ ] The women could not leave the house and had no choice or control over their fate.663"
"542. Under this definition, indications of enslavement include [ ] the restriction or control of an individuals autonomy, freedom of choice [ ]"
[B. Evidentiary comment:]
P.6.4. Evidence that the person has been deprived of the exercise of other rights.
A. Legal source/authority and evidence:
"525. [ ] As to non-Jewish foreign labour , with few exceptions they were deprived of the basic civil rights of free men;[ ] to live in a household with their families; to rear and educate their children ; to marry; to visit public places of their own choosing; to negotiate, either individually or through representatives of their own choice, the conditions of their own employment ; to organize in trade unions; to exercise free speech or other free expression of opinion; to gather in peaceful assembly; and they were frequently deprived of their right to worship according to their own conscience. All these are the sign -marks of slavery, not free employment under contract.1272"
[B. Evidentiary comment:]
P.6.5. Evidence of being guarded by armed soldiers/persons.
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC),17 October 2003, paras. 794, 834:
"794. Prosecution witnesses testified that while working, they were guarded by armed soldiers. Witnesses who had to dig trenches, build bunkers or work on other military sites,1805 as well as witnesses who had to do farm work, to work in factories or had other non-military assignments were guarded by armed soldiers,1806 often from the 4th Detachment.1807 Witness G testified that sometimes the armed guards caught people who tried to escape and beat them badly.1808"
"834. [ ] it has been established that this work was not rendered voluntarily. Civilians were compelled to work under the supervision of armed guards,1943 [ ]"
"750. The Trial Chamber is satisfied that the girls could not and did not leave the apartment without one of the men accompanying them. [ ]"
[B. Evidentiary comment:]
P.6.6. Evidence of being supervised by agents.
A. Legal source/authority and evidence:
United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 489:
"[ ] they were subject to constant supervision by the Gestapo and the SS [ ]"
[B. Evidentiary comment:]
P.6.7. Evidence of withholding of benefits/payments.
A. Legal source/authority and evidence:
United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 489:
" [ ] theoretically at least the workers were paid, house, and fed by the DAF, and even permitted to transfer their savings and to send mail and parcels back to their native country; but restrictive regulations took a proportion of the pay [ ]"
[B. Evidentiary comment:]
P.7. Evidence of psychological control.
P.7.1. Evidence of psychological oppression.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:
"193. [ ] the conditions of detention were physically taxing and the non-Serb detainees were generally subject to a psychologically exhausting regime while detained at the KP Dom. [ ]
-The non-Serb detainees were subjected to harrowing psychological abuse during their period of detention at the KP Dom. The detainees were exposed to the sounds of torture and beatings over a period of months, in particular in June and July 1992, and they constantly feared that they would be the next to be selected;310 [ ]"
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 359:
"359. [ ] In essence, the determination of whether protected persons laboured involuntarily is a factual question which has to be considered in light of all the relevant circumstances on a case by case basis. Such circumstances may include the following:
The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example [ ] psychological oppression [ ] 968
What must be established is that the relevant persons had no real choice as to whether they would work."
"968. Kunarac Trial Judgment, par 542."
"747. [ ] Paragraph 11.2 alleges that Radomir Kovac 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.7.2. Evidence of psychological restraints.
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. 750, 780:
"750. [ ] 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."
"780. [ ] [T]he Trial Chamber is satisfied that the events described in paragraph 11.6 of the Indictment have been proved beyond reasonable doubt. 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. [ ]"
Update to the Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, at para. 50, U.N. Doc. No. E/CN.4/Sub.2/2000/21 (2000):
"50. The Special Rapporteur understands that based on customary law interpretations of the crime of slavery, and thus sexual slavery, there are no requirements of any payment or exchange; of any physical restraint, detention or confinement for any set or particular length of time; nor is there a requirement of any legal disenfranchisement. [ ] One respect in which slavery differs from imprisonment or arbitrary detention is that the limitations on autonomy can be solely psychological or situational, with no physical restraints."
[B. Evidentiary comment:]
P.7.3. P.7.3. Evidence that the victim felt she was treated like property.
A. Legal source/authority and evidence:
"264. FWS-191 testified that "Zaga" came to the house in Trnovace until the end of September. [ ] She felt like she was his property. [ ]"
[B. Evidentiary comment:]
P.8. Evidence of control of sexuality.
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. 542, 554, 739, 741:
"542. [ ] Further indications of enslavement include [ ] the exaction of forced or compulsory labour or service [ ] often, though not necessarily [ ] sex [ ]"
"554. The Prosecutor does not submit that convictions for rape and enslavement under Article 5 based on the same conduct should be entered against the accused. The alleged repeated violations of the sexual integrity of the victims, by various means, is one of the main factors to be considered when determining whether enslavement was committed.1357 She states that
The main characteristic of the enslavement exercised by the accused Kunarac and Kovac was the sexual exploitation of the girls and women. All the controls exerted served that purpose. Repeated violations of the victims sexual integrity, through rape and other sexual violence, were some of the most obvious exercises of the powers of ownership by the accused.1358 [ ]"
"1357. Prosecutors Final Trial Brief, pars 800-807.
1358. Prosecutors Final Trial Brief, par 801."
"739. The Trial Chamber accepts from FWS-191 that the girls at Trnovace did anything they were ordered to do by the soldiers while being kept there. The testimonies of both FWS-191 and FWS-186 substantiated convincingly that the girls were kept in the house to be used by Dragoljub Kunarac and DP 6 for sexual services whenever the soldiers returned to the house."
"741. The Trial Chamber is satisfied that it has been proven beyond reasonable doubt that FWS-191 was raped by Dragoljub Kunarac and that FWS-186 was raped by DP 6, continuously and constantly whilst they were kept in the house in Trnovace.[ ]"
B. Evidentiary comment:
This evidence itself is not enough to prove the existence of the crime of enslavement. Indeed, as stated in paragraph 186 of Kunarac Appeal Judgment, "enslavement even if based on sexual exploitation, is a distinct offence from that of rape [ ]"
P.8.2. Evidence of enforced prostitution.
A. Legal source/authority and evidence:
"542. [ ] Further indications of enslavement include [ ] the exaction of forced or compulsory labour or service [ ] often, though not necessarily [ ] prostitution [ ]"
The Trial Chamber is satisfied that it has been proven beyond reasonable doubt that FWS-191 was raped by Dragoljub Kunarac and that FWS-186 was raped by DP 6, continuously and constantly whilst they were kept in the house in Trnovace. Kunarac in fact asserted his exclusivity over FWS-191 by forbidding any other soldier to rape her."
Annual Report of the Inter-American Commission on Human Rights 2001, OEA/Ser./L/V/II.114 doc. 5 rev.) 16 April 2001, para. 126:
"126.[ ] these organizations also impose slave-like conditions on people by forcing them to work [ ] as sex workers [ ][79]"
"79. Kyle and Dale, Id. pp. 32-4."
[B. Evidentiary comment:]
P.9. Evidence of measures taken to prevent or deter escape.
P.9.1. Evidence of keeping somebody in captivity/detention.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 359:
"359.[ ] in essence, the determination of whether protected persons laboured involuntarily is a factual question which has to be considered in light of all the relevant circumstances on a case by case basis. Such circumstances may include the following:
The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example [ ] detention or captivity [ ]968
What must be established is that the relevant persons had no real choice as to whether they would work."
"968. Kunarac Trial Judgment, par 542."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 527, 542, 740:
"527.[ ] after being recruited, the labourers were transported to and confined in camps. Little or no distinction appears to have been made between these conscripted labourers on the one hand and prisoners of war and civilian internees on the other hand. They were all regarded as slave labourers to be used to the limit of their endurance. For this reason, we have included these conscripted labourers in the term "civilian internees" whenever that term is used in this chapter.1281"
"542. [ ] Detaining or keeping someone in captivity, without more, would, depending on the circumstances of a case, usually not constitute enslavement."
"740. The Trial Chamber is satisfied that Kunarac and DP 6, both being Serb soldiers in the Foca area, were fully aware of this fact. The Trial Chamber accepts the evidence of FWS-191 and FWS-186 that the girls performed household chores for the soldiers whilst under captivity."
United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 489:
"[ ] the employers were [ ] ordered, if possible, to house them in stables, not in their own homes. [ ]"
[B. Evidentiary comment:]
P.9.2. Evidence that the person was locked up.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:
"193. [ ] Many non-Serb detainees were taken out of the KP Dom during the period covered by the Indictment, allegedly to be exchanged or in order to carry out certain tasks such as picking plums. Many of them did not come back and were never seen again;305 [ ]"
"780. [ ] [T]he Trial Chamber is satisfied that the events described in paragraph 11.6 of the Indictment have been proved beyond reasonable doubt. 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. [ ]"
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 108:
"108. [ ] the victims agree to travel to the country of destination without papers. Once a person has agreed to the terms, the operation swings into action: the traffickers smuggle the workers into the country of destination and once there, keep them locked up [ ][20]"
"20. See Chapter V, Third Progress Report of the Rapporteurship on Migrant Workers and Their Families, IACHR. http://www.cidh.org/annualrep/2001sp/cap.6.htm."
[B. Evidentiary comment:]
P.9.3. Evidence of isolation practices.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:
"193. [ ] there was a deliberate policy of isolating detainees within the KP Dom. Only those detainees given work assignments were permitted to spend prolonged periods outside of their rooms. Detainees who were taken to work assignments outside of the KP Dom were kept isolated in a separate room to prevent news about the "outside world" from spreading among the other detainees. To ensure compliance with these unwritten "rules" on communication, violations were punished with solitary confinement and /or mistreatment, such as beatings;307"
Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 15:
"15. [ ] the estates are far from any transportation, so its not easy to flee."
[B. Evidentiary comment:]
P.9.4. Evidence of confiscation of passports.
A. Legal source/authority and evidence:
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 108:
"108.[ ] the victims agree to travel to the country of destination without papers. Once a person has agreed to the terms, the operation swings into action: the traffickers smuggle the workers into the country of destination and once there [ ] take away their travel documents if these are legitimate, and force them into farm work.[ ][20]"
"20. See Chapter V, Third Progress Report of the Rapporteurship on Migrant Workers and Their Families, IACHR. http://www.cidh.org/annualrep/2001sp/cap.6.htm."
[B. Evidentiary comment:]
P.10. Evidence of subjection to cruel treatment and abuse.
P.10.1. Evidence of exploitation.
A. Legal source/authority and evidence:
"542. [ ] Further indications of enslavement include exploitation [ ]".
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 107:
"107. As in other sectors involving migrant workers, there have been cases of person trafficking among migrant farm workers in the Americas. According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, trafficking in persons is defined as follows: "the recruitment, transportation, transfer, harbouring or receipt of persons [ ] for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs."[19]"
Annual Report of the Inter-American Commission on Human Rights 2001, OEA/Ser./L/V/II.114 doc. 5 rev.) 16 April 2001, para. 126:
"126. [ ]Unlike migrant smuggling or guiding operations, which, as explained, entail a mutually agreed commercial transaction, for the Rapporteurship human trafficking implies elements of violence, coercion, and deceit with the intention to exploit people (usually women and children) [ ][79]"
"79. Kyle and Dale, Id. pp. 32-4."
[B. Evidentiary comment:]
P.10.2. Evidence of punishment.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:
"193. [ ] Many of the detainees were subjected to beatings and other forms of mistreatment, sometimes for no reason, sometimes as a punishment for minor breaches of the prison regulations or in order to obtain information or a confession from them.[ ]304 [ ]"
United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 489:
"[ ] the evidence relating to the Krupp Works in Essen showed that punishments of the most cruel kind were inflicted on the workers [ ]"
"[ ] in the case of the Pole employed on farms in Germany, the employers were given authority to inflict corporal punishment [ ]"
[B. Evidentiary comment:]
P.10.3. Evidence of poor sanitary conditions.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:
"193. [ ] hygienic conditions were deplorable and washing facilities minimal, while medical care was inadequate and medicine in very short supply. A basic medical service was provided but those in need of urgent medical attention were left unattended or given insufficient treatment. At least one detainee died as a result of the lack of or late medical care;302[ ]"
United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 489
" [ ] the camps in which they were housed were insanitary [sic] [ ]"
Bert R?ling and C. F. Ruter, eds, The Tokyo Judgement: The International Military Tribunal for the Far East (1977), p. 416:
"The lot of these conscripted labourers was made worse by the fact that generally they were ignorant of the principles of hygiene applicable to their unusual and crowded conditions and succumbed more readily to the diseases resulting from the insanitary [sic] conditions of conferment and work forced upon them by their Japanese captors."
[B. Evidentiary comment:]
P.10.4. Evidence of inhumane conditions of work.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 373:
"373. In considering whether an individual detainee was forced to work, the Trial Chamber considers the following factors to be relevant: [ ] the fact of detention and the inhumane conditions in the KP Dom."
Bert R?ling and C. F. Ruter, eds, The Tokyo Judgement: The International Military Tribunal for the Far East (1977), p. 416:
"The charges in this count to the effect that the laborers thus employed in the defendants plants were exploited by the defendants under inhuman conditions with respect to their personal liberty [ ]"
Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 12, 14:
"12. In this respect, they noted that in September 1989 the victim, then 17 years of age, as well as 60 other workers, were held against their will and forced to work [ ] in inhuman and illegal conditions.[ ]"
"14. With respect to the general phenomenon, they mentioned that these labor conditions generally affect seasonal agricultural [ ] forced to work in inhuman conditions. [ ]"
[B. Evidentiary comment:]
P.10.5. Evidence of inhumane/degrading/cruel treatment.
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 91:
"91. The Trial Chamber notes that certain types of forced labour may amount to cruel and inhumane treatment if the conditions under which the labour is rendered are such as to create danger for the life or health of the civilians, or may arouse in them feelings of fear, and humiliation. It should be noted here that the principle of humane treatment enshrined in the Geneva Conventions implies an obligation for the occupying powers to protect civilians against inhumane acts.166 Forcing protected persons to work in life-threatening circumstances fails to meet the obligation for protection against acts of violence and may result in inflicting upon these persons physical and mental suffering. It has been held that placing detainees in life-threatening situations constitutes cruel and inhuman treatment. 167"
"166. Celebici Trial Judgement, para. 528.
167 - Blakić Trial Judgement, para. 700."
"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. [ ] He subjected them to degrading treatments, including beatings and other humiliating treatments."
United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 489
"The evidence showed that workers destined for the Reich were sent under guard to Germany, often packed in trains without adequate heat, food, clothing, or sanitary facilities. The evidence further showed that the treatment of the laborers in Germany in many cases was brutal and degrading.[ ]"
United States v. Oswald Pohl and Others, Judgement of 3 November 1947, reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, Vol V, (1997), pp. 972-973:
"[ ] the endless hours of exhausting labor, the beatings and killing, the starvation, the degradation [ ]"
Bert R?ling and C. F. Ruter, eds, The Tokyo Judgement: The International Military Tribunal for the Far East (1977), p. 416:
"[ ] we must conclude that the cruel and atrocious practices which are known to have characterized the slave labor program in many places where it was employed did not prevail in the plants and establishments under the control of the defendants.[ ]"
[B. Evidentiary comment:]
P.10.6. Evidence of lack or small portions of food.
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 796:
"796. A number of witnesses testified that while performing forced labour they did not receive any food,1825 or received one meal a day.1826 One Prosecution witness, Witness G, testified that her family received "packages" from the work obligation.1827"
"1825. Esad Dagovic,T. 3924-25; Witness L, T. 4294.
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:
"193. [ ] the conditions under which non-Serbs were detained were below any legal standard regulating the treatment of civilians in times of armed conflict. Non-Serb detainees were given insufficient food, as a result of which many of them suffered substantial weight loss, sometimes more than 40 kilograms or up to a third of their weight.[ ] There was a deliberate policy to feed the non-Serb detainees barely enough for their survival. All non-Serb detainees suffered considerable weight loss ranging from 20 to 40 kilograms during their detention at the KP Dom 301; [ ]"
United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 489:
"[ ] and the food was very often less than the minimum necessary to give the workers strength to do their jobs. [ ]"
[B. Evidentiary comment:]
P.10.7. Evidence of the physical consequences of the work on the health of the detainees.
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 259:
"259. As a result of the foregoing, the Chamber will have to determine on a case by case basis whether the forms of labour alleged in the Indictment were indeed undertaken voluntarily or whether the detainees were compelled to do so. To determine whether a person was not in a position to make a "real choice"695 to undertake labour in contravention of the law, the following criteria may be considered, in accordance with previous jurisprudence: [ ] (f) the physical consequences of the work on the health of the internees.697"
"697. Krnojelac Trial Judgement, para 378."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 373, 378:
"373. In considering whether an individual detainee was forced to work, the Trial Chamber considers the following factors to be relevant: [ ] claims of longer term consequences of the labour [ ]"
"378. The physical consequences of the work on the health of the detainees, if any, also constitutes a factor relevant to the determination as to whether someone was forced to work. However, the evidence adduced on this point is also equivocal. FWS-249 gave evidence that he and the other working detainees were exhausted after work, and that he personally suffers from back problems.1021 He said that his doctors assumed that these problems resulted from the physical work at the KP Dom.1022 However, as established above, the Trial Chamber is not satisfied that his back problems are a direct consequence of the labour he performed while at the KP Dom.1023 FWS-142 testified that he was exhausted and had no strength when asked in September 1993 by Savo Todovic whether he would work in the Miljevina mine.1024 This incident took place after the Accuseds administration."
[B. Evidentiary comment:]
P.10.8. Evidence of exposure to dangerous conditions.
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 800:
"800. A number of witnesses forced to dig trenches or to work on other military sites close to or on the frontline were exposed to direct gunfire, sniper fire, shelling, and other dangerous military "exchange."1848 Frequently the workers were located between the two enemy lines and were exposed to crossfire.1849 Esad Dagovic was not allowed to hide during the crossfire.1850"
[B. Evidentiary comment:]
P.10.9. Evidence of lack of remuneration.
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 795:
"795. Prosecution witnesses testified that they were never paid for the work they did. Esad Dagovic,1811 Witness L,1812 Witness K and her family,1813 Witness M,1814 Witness N and his son,1815 Nusret Hadzijusufovic,1816 Safet Dagovic,1817 Kemal Mehinovic,1818 Witness C,1819 Jelena Kapetanovic,1820 Ediba Bobi cs son,1821 and Witness Gs oldest brother,1822 Snjezana Delics brother in law,1823 and Hasan Subasics mother1824 were not paid for their work. Most of them were not asked to keep a record of their working hours, nor were they aware of anybody keeping a record of their work."
1816 - Nusret Hadzijusufovic, T. 6926.
1817 - Safet Dagovic, T. 7198.
1818 - Kemal Mehinovic, T. 7402-03, T. 7465-66.
1820 - Jelena Kapetanovic, T. 10291-92, T. 10310
1821 - Ediba Bobic, T. 11262, T. 11276.
1823 - Snjezana Delic, T. 6448.
1824 - Hasan Subasic, T. 10971."
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 259:
"259. As a result of the foregoing, the Chamber will have to determine on a case by case basis whether the forms of labour alleged in the Indictment were indeed undertaken voluntarily or whether the detainees were compelled to do so. To determine whether a person was not in a position to make a "real choice"695 to undertake labour in contravention of the law, the following criteria may be considered, in accordance with previous jurisprudence: (a) the substantially uncompensated aspect of the labour performed; [ ]"
"695. Krnojelac Trial Judgement, para 372.
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 373-374:
"373. In considering whether an individual detainee was forced to work, the Trial Chamber considers the following factors to be relevant: the substantially uncompensated aspect of the labour performed [ ]"
"374. The Trial Chamber is satisfied that, except for the extra food which the working detainees received and the cigarettes that some of them sometimes received, their work was substantially uncompensated.1002 By the Accuseds own account, the KP Dom did not have enough money to pay them.1003 The Trial Chamber is also satisfied that the working detainees were generally under armed supervision.1004"
"542. [ ] Further indications of enslavement include [ ] the exaction of forced or compulsory labour or service, often without remuneration [ ]"
Van der Mussele v. Belgium, Application No. 8919/80, Judgement (Merits) (European Court of Human Rights), 23 November 1983, para. 40:
"40. The Court has not overlooked this aspect of the problem. While remunerated work may also qualify as forced or compulsory labour, the lack of remuneration and of reimbursement of expenses constitutes a relevant factor when considering what is proportionate or in the normal course of affairs. [ ]"
Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 12:
"12. In this respect, they noted that in September 1989 the victim, then 17 years of age, as well as 60 other workers, were held against their will and forced to work without remuneration [ ]"
Annual Report of the Inter-American Commission on Human Rights 2001, OEA/Ser./L/V/II.114 doc. 5 rev.) 16 April 2001, para. 126:
"126. [ ] these organizations also impose slave-like conditions on people by forcing them to work [ ] as sex workers without pay [ ][79]"
"79. Kyle and Dale, Id. pp. 32-4."
[B. Evidentiary comment:]
P.10.10. Evidence of disproportionate work.
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 834:
"834. The Trial Chamber is satisfied that civilians who had to report every day in front of the Pensioners Home as well as civilians who were detained1938 were forced to dig trenches,1939 build bunkers,1940 carry sandbags or railway sleepers for the construction of trenches, 1941 and build other fortifications1942 on the frontline[ ] "
"1938. Osman Jasarevic, Rule 92bis Statement, para. 108.
1940 - Nusret Hadzijusufovic, T. 6875; Kemal Mehinovic, T. 7400.
1941 - Esad Dagovic, T. 5914; Witness C, T. 7909."
Van der Mussele v. Belgium, Application No. 8919/80, Judgement (Merits) (European Court of Human Rights), 23 November 1983, para. 37:
"37. [ ] if the service imposed a burden which was so excessive or disproportionate to the advantages attached to the future exercise of that profession, that the service could not be treated as having been voluntarily accepted beforehand; this could apply, for example, in the case of a service unconnected with the profession in question."
[B. Evidentiary comment:]
P.10.11. Evidence of long working hours.
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 794:
"794. A number of Prosecution witnesses testified that they had to work every day for at least 10 and 12 hours, and sometimes at night.1809 Defence witnesses testified that civilians with work assignments worked during the day, between 8.30-9.00 a.m. and 4.00 p.m., 6.00 p.m., or 9.00 p.m.1810"
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 259:
"259. As a result of the foregoing, the Chamber will have to determine on a case by case basis whether the forms of labour alleged in the Indictment were indeed undertaken voluntarily or whether the detainees were compelled to do so. To determine whether a person was not in a position to make a "real choice"695 to undertake labour in contravention of the law, the following criteria may be considered, in accordance with previous jurisprudence: [ ] (d) claims of longer term consequences of the labour; [ ]"
"695. Krnojelac Trial Judgement, para 372."
[B. Evidentiary comment:]
3.3.2. Elements showing how control has been applied.
P.11. Evidence of the duration.
P.11.1. Evidence of duration of the exercise of powers of ownership.
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. 121:
"121 [ ] the Trial Chamber found that the duration of the detention is another factor that can be considered but that its importance will depend on the existence of other indications of enslavement.149 The Appeals Chamber upholds this finding and observes that the duration of the enslavement is not an element of the crime. The question turns on the quality of the relationship between the accused and the victim. A number of factors determine that quality. One of them is the duration of the relationship. The Appeals Chamber considers that the period of time, which is appropriate, will depend on the particular circumstances of each case."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 542, 732:
"542. [ ] the duration of the suspected exercise of powers attaching to the right of ownership is another factor that may be considered when determining whether someone was enslaved; however, its importance in any given case will depend on the existence of other indications of enslavement [ ]"
"732. The Trial Chamber is satisfied that FWS-191 and FWS-186 were kept in the Trnovace house for five to six months, a period that the Trial Chamber accepts as falling under the time frame set out in the Indictment as "approximately 6 months".
[B. Evidentiary comment:]
P.11.2. Evidence of long periods of detention.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:
"193. [ ] the KP Dom held several hundred Muslim civilian men, who were detained there for periods lasting from four months to more than two and a half years298 [ ]"
[B. Evidentiary comment:]
P.12. Evidence of assertion of exclusivity.
P.12.1. Evidence of the exclusivity of the control.
A. Legal source/authority and evidence:
"741. [ ] Kunarac in fact asserted his exclusivity over FWS-191 by forbidding any other soldier to rape her [ ]."
[B. Evidentiary comment:]
3.4. Use or threat of violence.
P.13. Evidence of the use of force, threat of force or coercion during enslavement.
P.13.1. Evidence of physical violence.
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. 210, 525, 749:
"210. A.S. stayed in Radomir Kovacs apartment for about a month or two. [ ] Jagos Kostic would rape her anytime he wanted, orally and vaginally, and she had no choice but to comply with his demands; he would also sometimes beat her and once threatened to cut her throat.621 [ ]"
"525. [ ]The US Military Tribunal in the Pohl case, in considering war crimes and crimes against humanity charges, succinctly held as follows:
Slavery may exist even without torture. Slaves may be well fed, well clothed, and comfortably housed, but they are still slaves if without lawful process they are deprived of their freedom by forceful restraint [ ]"
"749. The Trial Chamber is also satisfied that, while kept in Radomir Kovacs apartment, these girls were constantly raped, humiliated and degraded. They were sometimes beaten, slapped or threatened by one of the occupants of the apartment. The accused Kovac once slapped FWS-75 because she refused to sleep with a soldier whom he had brought in. Twelve-year old A.B. was sent in her place. Kovac also beat FWS-75 up on other occasions."
Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 15:
"15. They alleged that the methods used to effectively deprive them of their liberty are violence pure and simple [ ]"
Mar?a Mej?a v. Guatemala, Case No. 10.553, Report No. 32/96, OEA/Ser.L/V/II.95 Doc. 70 rev., Decision, (Inter-American Commission on Human Rights), 16 October 1996, para. 63:
"63. [ ] in addition, in reprisal for working with the CERJ and refusing to work with the PACs, military commissioners and PAC members threatened [ ] continuously the members of the Parraxtut Segundo community, forcing 39 persons to leave their homes in that community, and attacked Am?lcar Méndez and members of the community when they attempted to return to their homes on March 27, 1990. These reprisals for having refused to serve in the PACs amount to clear violations of Article 6.2 of the Convention."
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 108:
"108. [ ] intimidation and violence are routinely used in such cases. The victims of trafficking who resist are physically attacked [ ][20]"
Annual Report of the Inter-American Commission on Human Rights 2001, OEA/Ser./L/V/II.114 doc. 5 rev.) 16 April 2001, para. 126:
"126. [ ]Unlike migrant smuggling or guiding operations, which, as explained, entail a mutually agreed commercial transaction, for the Rapporteurship human trafficking implies elements of violence [ ][79]"
"79. Kyle and Dale, Id. pp. 32-4."
[B. Evidentiary comment:]
P.13.2. Evidence of threat or coercion.
A. Legal source/authority and evidence:
"210. A.S. stayed in Radomir Kovacs apartment for about a month or two. [ ] Jagos Kostic would rape her anytime he wanted, orally and vaginally, and she had no choice but to comply with his demands; he would also sometimes beat her and once threatened to cut her throat.621 [ ]"
United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 489:
"[ ] and if they attempted to leave their jobs they were sent to correction camps or concentration camps. The concentration camps were also used to increase the supply of labor. Concentration camp commanders were ordered to work their prisoners to the limits of their physical power."
Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 15:
"15. [ ] they are threatened, told theyll be killed if they try to escape. [ ]"
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 108:
"108. [ ] aware of the victims fear and ignorance of their rights and situation as migrants, the members of these criminal bands also threaten to hand their victims over to the authorities, telling them that they will have to serve long prison sentences for illegally entering the countries where they are working.[ ][20]"
"20. See Chapter V, Third Progress Report of the Rapporteurship on Migrant Workers and Their Families, IACHR. http://www.cidh.org/annualrep/2001sp/cap.6.htm."
Annual Report of the Inter-American Commission on Human Rights 2001, OEA/Ser./L/V/II.114 doc. 5 rev.) 16 April 2001, para. 126:
"126. [ ]Unlike migrant smuggling or guiding operations, which, as explained, entail a mutually agreed commercial transaction, for the Rapporteurship human trafficking implies [ ] coercion [ ][79]"
"79. Kyle and Dale, Id. pp. 32-4."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 834:
"834. [ ] it has been established that this work was not rendered voluntarily. Civilians were compelled to work under the supervision of armed guards,1943 who beat [ ]those who tried to escape.1944 [ ]"
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, paras. 193-194:
"193. [ ] Many of the detainees were subjected to beatings [ ] sometimes for no reason, [ ] Many were returned to their rooms with visible wounds and bruises resulting from the beating;304
"194. [ ] the Appeals Chamber is satisfied that the detainees worked to avoid being beaten [ ]"
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 360:
"360. The Trial Chamber is not satisfied that FWS-73, Aziz Telo, Atif Jaserevic and Mustafa Telo were forced to work on the Accuseds house. FWS-73s evidence that he was kicked to work once for having refused to work has already been addressed. It is not clear what work it was to which that evidence related,1180 and there is no other relevant evidence in relation to his work on the Accuseds house.
"1180. Ekrem Zekovic (T 3443)."
"525. [ ]The US Military Tribunal in the Pohl case, in considering war crimes and crimes against humanity charges, succinctly held as follows:
Slavery may exist even without torture. [ ]We might eliminate all proof of [ ] beatings [ ]"
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 108:
"108. [ ] the victims of trafficking who resist are [ ] beaten and even murdered. The victims of this type of crime are usually people with little education, no resources, family or connections, who in their desperation become embroiled in these operations without any information at all.[20]"
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Annual Report of the Inter-American Commission on Human Rights 2004, OEA/Ser.L/V/II.122/Doc. 5 rev. 1, 23 February 2005: para. 108:
"108. [ ] the victims of trafficking who resist are [ ] even murdered. [ ][20]"
"20. See Chapter V, Third Progress Report of the Rapporteurship on Migrant Workers and Their Families, IACHR. http://www.cidh.org/annualrep/2001sp/cap.6.htm."
Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 12:
"12. [ ] they said that the other worker accompanying him, known only by his nickname "Paraná," was hit by the gunfire and killed. Their bodies were dumped on a lot near where they were taken in a pick-up truck by the killers.[ ]"
[B. Evidentiary comment:]
P.13.5. Evidence of being fired at/shot/gassed.
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 834:
"834. [ ] it has been established that this work was not rendered voluntarily. Civilians were compelled to work under the supervision of armed guards,1943 who [ ] fired at those who tried to escape.1944 [ ]"
1944 - Witness G, T. 4091-92."
United States v. Oswald Pohl and Others, Judgement of 3 November 1947, reprinted in Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, Vol V, (1997), pp. 972-973:
"When grinder or lathes broke down under hard use, they were scrapped; when inmates collapsed from exhaustion or hunger, they were shot or gassed [The Nazis] talked and wrote frankly and volubly about it they still kept them hard at work. Tasks were found even for the bedridden, while they awaited their turn at the gas chambers [ ]"
Jose Pereyra v. Brazil, Case No. 11.289, Report No. 95/03, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, Friendly Settlement (Inter-American Commission on Human Rights), 24 October 2003, para. 12:
"12. [ ] when they sought to escape from the estate, the young Pereira and another worker were fired upon by rifle-fire by the contractor and his armed aides, in retaliation for fleeing. They added that José Pereira suffered gunshot wounds, but miraculously survived, his assailants leaving him for dead. They said that the other worker accompanying him, known only by his nickname "Paraná," was hit by the gunfire and killed. Their bodies were dumped on a lot near where they were taken in a pick-up truck by the killers. Pereira made his way to a near-by estate and received care, and was able to file his complaint. He argues that the case is illustrative of a more general practice of "slave" labor and of the lack of judicial guarantees and labor security, which make this practice widespread."
[B. Evidentiary comment:]
P.13.6. Evidence of starvation.
A. Legal source/authority and evidence:
"525. [ ]The US Military Tribunal in the Pohl case, in considering war crimes and crimes against humanity charges, succinctly held as follows:
Slavery may exist even without torture [ ] we might eliminate all proof of [ ] overlook the starvation.
[B. Evidentiary comment:]
P.13.7. Evidence of ill-treatment.
A. Legal source/authority and evidence:
"525. [ ]The US Military Tribunal in the Pohl case, in considering war crimes and crimes against humanity charges, succinctly held as follows:
Evan Julian et al. v. New Zealand, Communication No. 601/1994, Decision (Human Rights Committee), 29 April 1997, UN Doc. CCPR/C/59/D/601/1994, para. 2.5:
"2.5 As a consequence of the barbaric conditions in the camps, the released prisoners were in bad physical condition, suffered severely from malnutrition with vitamin deficiency diseases such as beri-beri and pellagra, malaria and other tropical diseases, tuberculosis, tropical sores and the effects of physical ill-treatment. It is submitted that as a direct consequence, the New Zealand Veterans still suffer significant residual disabilities and incapacities."
[B. Evidentiary comment:]
P.13.8. Evidence of physical hardship.
A. Legal source/authority and evidence:
"542. [ ] Further indications of enslavement include [ ]the exaction of forced or compulsory labour or service [ ]often, though not necessarily [ ] involving physical hardship [ ]"
[B. Evidentiary comment:]
P.13.9. Evidence of menace of any penalty.
A. Legal source/authority and evidence:
Van der Mussele v. Belgium, Application No. 8919/80, Judgement (Merits) (European Court of Human Rights), 23 November 1983, paras. 34-35:
"34. [ ] on this point, the minority of the Commission agreed with the majority. What there has to be is work "exacted ... under the menace of any penalty" and also performed against the will of the person concerned, that is work for which he "has not offered himself voluntarily."
"35. The definition given in Article 2 § 1 of ILO Convention No. 29 leads the Court to inquire firstly whether there existed in the circumstances of the present case "the menace of any penalty". Had Mr. Van der Mussele refused without good reason to defend Mr. Ebrima, his refusal would not have been punishable with any sanction of a criminal character. On the other hand, he would have run the risk of having the Council of the Ordre strike his name off the roll of pupils or reject his application for entry on the register of avocats (see paragraph 19 above); these prospects are sufficiently daunting to be capable of constituting "the menace of [a] penalty", having regard both to the use of the adjective "any" in the definition and to the standards adopted by the ILO on this point ("Abolition of Forced Labour": General Survey by the Committee of Experts on Application of Conventions and Recommendations, 1979, paragraph 21)."
[B. Evidentiary comment:]
P.13.10. Evidence of oppression.
A. Legal source/authority and evidence:
Van der Mussele v. Belgium, Application No. 8919/80, Judgement (Merits) (European Court of Human Rights), 23 November 1983, para. 37:
"37. On the basis of jurisprudence of its own which dates back to 1963 (admissibility decision on application no. 1468/62, Iversen v. Norway, Yearbook of the Convention, vol. 6, pp. 327-329) and which it has subsequently re-affirmed, the Commission expressed the opinion that for there to be forced or compulsory labour, for the purposes of Article 4 § 2 (art. 4-2) of the European Convention, two cumulative conditions have to be satisfied: not only must the labour be performed by the person against his or her will, but either the obligation to carry it out must be "unjust" or "oppressive" [ ]"
[B. Evidentiary comment:]
P.13.11. Evidence of harassment.
A. Legal source/authority and evidence:
Van der Mussele v. Belgium, Application No. 8919/80, Judgement (Merits) (European Court of Human Rights), 23 November 1983, para. 37:
"37. On the basis of jurisprudence of its own which dates back to 1963 (admissibility decision on application no. 1468/62, Iversen v. Norway, Yearbook of the Convention, vol. 6, pp. 327-329) and which it has subsequently re-affirmed, the Commission expressed the opinion that for there to be forced or compulsory labour, for the purposes of Article 4 § 2 (art. 4-2) of the European Convention, two cumulative conditions have to be satisfied: not only must the labour be performed by the person against his or her will, [ ]its performance must constitute "an avoidable hardship", in other words be "needlessly distressing" or "somewhat harassing". [ ]"
Mar?a Mej?a v. Guatemala, Case No. 10.553, Report No. 32/96, OEA/Ser.L/V/II.95 Doc. 70 rev., Decision, (Inter-American Commission on Human Rights), 16 October 1996, para. 63:
"63. [ ] in addition, in reprisal for working with the CERJ and refusing to work with the PACs, military commissioners and PAC members [ ] harassed continuously the members of the Parraxtut Segundo community, forcing 39 persons to leave their homes in that community, and attacked Am?lcar Méndez and members of the community when they attempted to return to their homes on March 27, 1990. These reprisals for having refused to serve in the PACs amount to clear violations of Article 6.2 of the Convention."
[B. Evidentiary comment:]
P.13.12. Evidence of other forms of mistreatment/barbarous acts.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 193:
"193. [ ] Many of the detainees were subjected to [ ] other forms of mistreatment, sometimes for no reason [ ]304"
"304. Ibid., para.46."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 525, 742:
"525. [ ]The US Military Tribunal in the Pohl case, in considering war crimes and crimes against humanity charges, succinctly held as follows:
Slavery may exist even without torture.[ ] We might eliminate all proof of [ ]other barbarous acts [ ]"
"742. [ ] they were subjected to other mistreatments, such as Kunarac inviting a soldier into the house so that he could rape FWS-191 for 100 Deutschmark if he so wished. On another occasion, Kunarac tried to rape FWS-191 while in his hospital bed, in front of other soldiers. The two women were treated as the personal property of Kunarac and DP 6. The Trial Chamber is satisfied that Kunarac established these living conditions for the victims in concert with DP 6. Both men personally committed the act of enslavement.[ ]"
Evan Julian et al. v. New Zealand, Communication No. 601/1994, Decision (Human Rights Committee), 29 April 1997, UN Doc. CCPR/C/59/D/601/1994, para. 2.3:
"2.3. [ ] they were forced to do slave labour in tropical heat without protection against the sun. Lack of housing, food and medical supplies led to diseases and deaths.[ ]"
[B. Evidentiary comment:]
P.13.13. Evidence of forcible ways of recruiting.
Bert R?ling and C. F. Ruter, eds, The Tokyo Judgement: The International Military Tribunal for the Far East (1977),:
"[T]he evidence before the Tribunal establishes the fact that the conscription of labor was accomplished in many cases by drastic and violent methods. The mistakes and blunders were on a very great scale. Manhunts took place in the streets, at motion picture houses, even at churches and at night in private houses. Houses were sometimes burnt down, and the families taken as hostages, practices which were described by the defendant Rosenberg as having their origin in the blackest periods of the slave trade."
[B. Evidentiary comment:]
