Table of contents:
Element:
P.28. Evidence inferred from an utterance, a document or a deed.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 587 588:
"587. [ ] Kovac would also invite his friends to his apartment, and he sometimes allowed them to rape one of the girls. Kovac also sold three of the girls, A.S., A.B. and FWS-87. Prior to their being sold, Kovac had given two of these girls, FWS-75 and A.B., to other Serb soldiers who abused them for more than three weeks before taking them back to Kovac, who proceeded to sell one and give the other away to acquaintances of his."
"588. He accused Radomir Kovac knew of the attack against the Muslim civilian population, and he also perpetuated it by prolonging the ordeal of these girls by selling or giving them to men whom he knew would rape them and abuse them."
[B. Evidentiary comment:]
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. 588, 670, 686, 759:
"588. He accused Radomir Kovac knew of the attack against the Muslim civilian population, and he also perpetuated it by prolonging the ordeal of these girls by selling or giving them to men whom he knew would rape them and abuse them."
"670. [ ] The Trial Chamber is also satisfied that Kunarac took these women to this house in the knowledge that they would be raped by soldiers during the night. [ ] The fact that Kunarac took the girls to the house and left them to his men in the knowledge that they would rape them constituted an act of assistance which had a substantial effect on the acts of torture and rape later committed by his men. He therefore aided and abetted in that torture and rape."
"686. As far as the girls were raped and tortured by other men, Dragoljub Kunarac was aiding and abetting the latter by taking the girls to them in the knowledge that they would rape them and by encouraging them to do so."
"759. The Trial Chamber is satisfied that the allegations made in paragraphs 11.3 of the Indictment have all been proved beyond reasonable doubt. The Trial Chamber finds that FWS-75 and A.B. were detained in Radomir Kovacs apartment for about a week, starting sometime at the end of October or early November 1992. The Trial Chamber finds that the accused Radomir Kovac had sexual intercourse with the two women in the knowledge that they did not consent, and that he substantially assisted other soldiers in raping the two women. He did this by allowing other soldiers to visit his apartment and to rape the women or by encouraging the soldiers to do so, and by handing the girls over to other men in the knowledge that they would rape them and that the girls did not consent to the sexual intercourse. Finally, the Trial Chamber is satisfied that it has been proven beyond reasonable doubt that, after about a week, Kovac handed the two women over to other soldiers whom he knew would most likely continue to rape and abuse them. Kovac eventually sold A.B. to an unidentified soldier, and handed over FWS-75 to DP 1, in the almost certain knowledge that they would be raped again."
[B. Evidentiary comment:]
P.28.3. Evidence that the perpetrator espoused a discriminatory plan involving sexual slavery.
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. 583, 592, 654, 816:
"583. Dragoljub Kunarac also knew that Muslim women were specifically targeted, as he himself took several of them to his men and raped some of them himself. In the course of one of these rapes, he expressed with verbal and physical aggression his view that the rapes against the Muslim women were one of the many ways in which the Serbs could assert their superiority and victory over the Muslims. While raping FWS-183, the accused Dragoljub Kunarac told her that she should enjoy being "fucked by a Serb". After he and another soldier had finished, Dragoljub Kunarac laughed at her and added that she would now carry a Serb baby and would not know who the father would be. In addition, the accused Dragoljub Kunarac removed many Muslim girls from various detention centres and kept some of them for various periods of time for him or his soldiers to rape."
"592. The Trial Chamber is satisfied that the crimes committed by all three accused were part of the attack against the Muslim civilian population and that all three accused had the mens rea required under Article 5 of the Statute. The Trial Chamber is satisfied that the three accused knew about the attack, and that they committed the offences charged by directly taking advantage of the situation created. It is inconceivable that the situation could have been otherwise. Likewise, judging by their individual conduct as charged and proved on the evidence before the Trial Chamber, they were aware that there was an attack on the Muslim civilian population going on, and they willingly took an active part in it. Dragoljub Kunarac , Radomir Kovac and Zoran Vukovic mistreated Muslim girls and women, and only Muslim girls and women, because they were Muslims. They therefore fully embraced the ethnicity-based aggression of the Serbs against the Muslim civilians, and all their criminal actions were clearly part of and had the effect of perpetuating the attack against the Muslim civilian population."
"654. The accused acted intentionally and with the aim of discriminating between the members of his ethnic group and the Muslims, in particular its women and girls. The treatment reserved by Dragoljub Kunarac for his victims was motivated by their being Muslims, as is evidenced by the occasions when the accused told women, that they would give birth to Serb babies, or that they should "enjoy being fucked by a Serb". The law does not require that the purpose of discrimination be the only purpose pursued by the offender; it is enough that it forms a substantial part of his mens rea. Such was the case with the accused Kunarac."
"816. In the Final Trial Brief of the Defence, the accused Zoran Vukovic argued that, even if it were proved that he had raped a woman, the accused would have done so out of a sexual urge, not out of hatred. However, all that matters in this context is his awareness of an attack against the Muslim civilian population of which his victim was a member and, for the purpose of torture, that he intended to discriminate between the group of which he is a member and the group of his victim. There is no requirement under international customary law that the conduct must be solely perpetrated for one of the prohibited purposes of torture, such as discrimination. The prohibited purpose need only be part of the motivation behind the conduct and need not be the predominant or sole purpose. The Trial Chamber has no doubt that it was at least a predominant purpose, as the accused obviously intended to discriminate against the group of which his victim was a member, ie the Muslims, and against his victim in particular."
[B. Evidentiary comment:]
P.29. Evidence inferred from a circumstance.
A. Legal source/authority and evidence:
Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, at paras. 76, 78, 79, U.N. Doc. No. E/CN.4/Sub.2/1998/13 (1998):
"76. Under the legal doctrine of command responsibility, commanders, superiors and other authorities are liable for crimes perpetrated by their subordinates. Any commander or other responsible authority who orders a subordinate to commit acts of sexual slavery or sexual violence, or who otherwise knew or should have known that such acts were likely to be committed and failed to take steps to prevent them, may be held fully responsible for the commission of the international crimes which those acts constitute, including war crimes, crimes against humanity, slavery, genocide or torture.62 [ ]
"62. Commission of Experts Report (S/1994/674), para. 55."
"78. For example, the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia indicted the highest-ranking civilian officer in a municipality in Bosnia and Herzegovina who "knew or had reason to know" that the Chief of Police in the area was about to force others to commit acts of sexual assault or had done so and failed to take "necessary and reasonable measures" to prevent such acts or to punish the Chief of Police after the acts came to his attention.64 [ ]
79. Thus, the law of command responsibility fully applies to all those in high-level positions with the authority to make decisions, formulate policy and influence the issuance of directives within the State, region or locale where international crimes are being committed. Holding commanders, superiors and other authorities to a "knew or should have known" standard is appropriate for assessing liability at this level, and where acts of sexual slavery or sexual violence are occurring on a widespread or notorious basis, such defendants will be presumed to have knowledge of the acts and of their international prohibition. [ ]"
"64. ICTFY, Miljkovic Indictment, paras. 31, 33, 34."
[B. Evidentiary comment:]
"646. The Trial Chamber rejects the evidence of the accused Dragoljub Kunarac that he was not aware of the fact that D.B. only initiated sexual intercourse with him for reasons of fear for her life. The Trial Chamber regards it as highly improbable that the accused Kunarac could realistically have been "confused" by the behaviour of D.B., given the general context of the existing war-time situation and the specifically delicate situation of the Muslim girls detained in Partizan or elsewhere in the Foca region during that time. [ ]"
[B. Evidentiary comment:]
P.29.3. Evidence that sexual slavery was occurring on a widespread or notorious basis.
A. Legal source/authority and evidence:
Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, at para. 79, U.N. Doc. No. E/CN.4/Sub.2/1998/13 (1998):
"79. [ ] Holding commanders, superiors and other authorities to a "knew or should have known" standard is appropriate for assessing liability at this level, and where acts of sexual slavery or sexual violence are occurring on a widespread or notorious basis, such defendants will be presumed to have knowledge of the acts and of their international prohibition. [ ]"
[B. Evidentiary comment:]
