Table of contents:
3.1. The perpetrator caused such person or persons to engage in an act of a sexual nature.
P.1. Evidence of subjecting one or more persons to forced nudity.
P.2. Evidence of forcing a person or persons to perform exercices naked in public.
P.3. Evidence of forcing a person or persons to march around naked in public.
P.4. Evidence of forcing a person or persons to dance and strip naked in public.
P.5. Evidence of forcing a person or persons to bathe the perpetrator.
P.6. Evidence of forcing one or more persons to have sexual intercourse.
P.7. Evidence of forcing one or more persons to commit incest.
3.2.1. Evidence of use of force.
P.8. Evidence that the perpetrator used physical force on a person or persons.
3.2.2. Evidence of threat of force.
P.9. Evidence the perpetrator threatened one or more persons using a weapon.
P.9.1. Evidence of pointing a gun or rifle.
P.9.2. Evidence of threatening to cut off private parts using a knife.
P.10. Evidence that the perpetrator threatened verbally to kill one or more persons.
P.11. Evidence that the perpetrator threatened to use force against a third person.
P.12. Evidence of regular violence against detainees.
P.13. Evidence of detention in privately owned apartments.
3.2.4. Evidence of psychological oppression.
P.14. Evidence of psychological oppression amounting to de facto detention.
P.15. Evidence of constant fear.
P.15.1. Evidence of constant threat of being subject to sexual violence.
3.2.5. Evidence of abuse of power.
P.16. Evidence of victims being subjected to the authority of the perpetrator.
P.17. Evidence that the perpetrator "bribed" one or more persons to "agree" to sexual intercourse.
P.17.1. Evidence of promising to spare family members.
P.17.2. Evidence of providing food and water.
P.17.3. Evidence of changing detention conditions.
P.18. Evidence of the involvement of local authorities.
3.2.6. Evidence of a coercive environment.
P.19. Evidence of an armed conflict.
P.20. Evidence of a military presence.
P.20.1. Evidence of a military presence in a refugee camp.
3.2.7. Evidence of incapacity to give genuine consent.
P.21. Evidence of physical incapacity.
P.22. Evidence of mental incapacity.
P.23. Evidence of induced incapacity.
P.23.1. Evidence of induced incapacity caused by surprise.
P.23.2. Evidence of induced incapacity caused by misrepresentation.
P.23.3. Evidence of incapacity caused by intoxication.
Element:
The means of proof documents on sexual slavery (art. 7(1)(g)-2) and enslavement (art. 7(1)(c)) should also be consulted with regard to means of proving this crime.
3.1. The perpetrator caused such person or persons to engage in an act of a sexual nature.
P.1. Evidence of subjecting one or more persons to forced nudity.
P.2. Evidence of forcing a person or persons to perform exercices naked in public.
P.3. Evidence of forcing a person or persons to march around naked in public.
A. Legal source/authority and evidence:
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 428, 436, 686:
"428. [ ]Witness KK testified regarding an incident in which the Accused told the Interahamwe to undress a young girl named Chantal, whom he knew to be a gymnast, so that she could do gymnastics naked. The Accused told Chantal, who said she was Hutu, that she must be a Tutsi because he knew her father to be a Tutsi. As Chantal was forced to march around naked in front of many people, Witness KK testified that the Accused was laughing and happy with this."
"436.[ ] the three women were forced by the Interahamwe to undress and told to walk, run and perform exercises "so that they could display the thighs of Tutsi women." All this took place, she said, in front of approximately two hundred people. After this, she said the women were raped."
"686. [ ] The incident described by Witness KK in which the Accused ordered the Interahamwe to undress a student and force her to do gymnastics naked in the public courtyard of the bureau communal, in front of a crowd, constitutes sexual violence."
P.4. Evidence of forcing a person or persons to dance and strip naked in public.
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. 768-769:
769. A.S. testified, and the Trial Chamber accepts, that she, together with A.B. and FWS-87, were once made to strip and dance. Radomir Kovač, Jagos Kostic and possibly a third soldier watched them. Although she did not recall FWS-75 being present, A.S.s testimony fully supports FWS-87s evidence of these events."
Special Rapporteur on Contemporary Forms of Slavery, Systematic Rape, Sexual Slavery and Slavery-Like Practices during Armed Conflict, 22 June 1998, U.N. Doc. E/CN.4/Sub.2/1998/13 para. 21:
"21. [ ] Sexual violence covers both physical and psychological attacks directed at a person's sexual characteristics, such as forcing a person to strip naked in public, mutilating a person's genitals, or slicing off a woman's breasts. [Human Rights Watch, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath, New York, (1996) p. 62.]"
P.5. Evidence of forcing a person or persons to bathe the perpetrator.
P.6. Evidence of forcing one or more persons to have sexual intercourse.
P.7. Evidence of forcing one or more persons to commit incest.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 1065-1066:
"1065.Accordingly, on the basis of the foregoing evidence, the Trial Chamber finds that, on one occasion, Esad Lando ordered Vaso Đorđić and his brother, Veseljko Đorđić, to remove their trousers in front of the other detainees in Hangar 6. He then forced first one brother and then the other to kneel down and take the other ones penis into his mouth for a period of about two to three minutes. This act of fellatio was performed in full view of the other detainees in the Hangar."
1066. The Trial Chamber finds that the act of forcing Vaso Đorđić and Veseljko Đorđić to perform fellatio on one another constituted, at least, a fundamental attack on their human dignity. Accordingly, the Trial Chamber finds that this act constitutes the offence of inhuman treatment under Article 2 of the Statute, and cruel treatment under Article 3 of the Statute. The Trial Chamber notes that the aforementioned act could constitute rape for which liability could have been found if pleaded in the appropriate manner."
According to a commentator, "the element of "violence" is captured in the last phrase of element [3] which indicates that the conduct must be forcibly committed against the person, or that such use of force, threat of force or coercion must cause the person to engage in an act of a sexual nature. The examples of coercion appearing in element 1 are borrowed from the identical element appearing in the crime of rape." (Eve La Haye in Roy S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, p. 198). Hence, one can look at the jurisprudence taken from the crime of rape until the ICC develops its own precedents.
Attention should also be paid to parts of Rule 96 of the Rules of Procedure and Evidence governing the admissibility of evidence in cases of sexual assault at the ICTR and ICTY :
3.2.1. Evidence of use of force.
"542. [ ] 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 [ ]"
P.8. Evidence that the perpetrator used physical force on a person or persons.
A. Legal source/authority and evidence:
"210. A.S. stayed in Radomir Kovačs 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 [ ]"
"621T 2018."
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, para. 833:
"833. According to Witness J, Musema then raped one of the women, a Tutsi woman named Immaculée Mukankusi who was 25 years old and eight months pregnant. He hit her with the butt of his gun, she fell down, he dropped his trousers and underwear to the knees and jumped on her. The witness said Immaculee was struggling and she was crying because he was saying that he was going to kill her. Musema was on top of her for about four minutes. After raping her, he put on his clothes, got up and killed her, stabbing her with the knife attached to his gun between the neck and the shoulder."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 424, 437:
"424. Witness OO, a young Tutsi woman, testified that she and her family sought refuge at the bureau communal in April 1994 and encountered many other Tutsi refugees there, on the road outside the compound. While she was there, she said, some Interahamwe arrived and started killing people with machetes. She and two other girls tried to flee but were stopped by the Interahamwe who went back and told the Accused that they were taking the girls away to "sleep with" them. Witness OO told the Chamber that standing five meters away from the Accused, she heard him say in reply, "take them". She said she was then separated from the other girls and taken to a field by one Interahamwe called Antoine. When she refused to sit down, he pushed her to the ground and put his "sex" into hers, clarifying on examination that he penetrated her vagina with his penis. When she started to cry, she said he warned her that if she cried or shouted, others might come and kill her."
3.2.2. Evidence of threat of force.
P.9. Evidence the perpetrator threatened one or more persons using a weapon.
P.9.1. Evidence of pointing a gun or rifle.
A. Legal source/authority and evidence:
"772.[ ]The Trial Chamber therefore finds that, sometime between about 31 October 1992 and about 7 November 1992, while in Radomir Kovačs apartment, FWS-87, A.S. and A.B. were forced to strip and dance naked on a table while Kovač watched them from the sofa, pointing weapons at them."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 958:
"958. [ ]Mr. Delić ordered her to take her clothes off, threatened her and ignored her crying pleas for him not to touch her. He pointed a rifle at her while she took her clothes off and ordered her to lie on a bed. [ ]."
[B. Evidentiary comment:]
P.9.2. Evidence of threatening to cut off private parts using a knife.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 98:
"98. [ ]The Trial Chamber heard compelling evidence from several female detainees who testified that it was commonplace for women to be subjected to sexual intimidation or violence in Omarska.236 For example, Sifeta Susic felt threatened by Zeljko Meakic when he said to her that someone had "asked whether it was true that Sifeta Susic was raped by 20 soldiers and I said Yes, it is. I was the 20th in line."237 Several witnesses told of an occasion when a man approached a female detainee in the eating area, unbuttoned her shirt, drew a knife over one of her breasts, and threatened to cut it off.238 Many others testified that women were frequently called out from the administration building or the cafeteria at night and were subsequently raped or subjected to other forms of sexual violence.239"
"237 Sifeta Susic, T. 3020-3021.
238 Witness J, T. 4769; Zlata Cikota, T. 3337-3338.
239 Witness J, T. 4774-4775; Witness AT, T. 6083; Witness K, T. 4983; Witness A, T. 5486; Witness F, T. 5382; Sifeta Susic, T. 3018"
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, para. 82:
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 960:
"960. The second rape occurred when Hazim Delić came to Building A and ordered Ms. Antic to go to Building B to wash herself. After doing so, she was led to the same room in which she was first raped, where Delić, who had a pistol and a rifle and was in uniform, was sitting on a desk. She started crying once again out of fear. He ordered her to take her clothes off. She kept telling him that she was sick and asking him not to touch her. Out of fear that he would kill her she complied with his orders."
[B. Evidentiary comment:]
P.10. Evidence that the perpetrator threatened verbally to kill one or more persons.
A. Legal source/authority and evidence:
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, para. 833:
"833. According to Witness J, Musema then raped one of the women, a Tutsi woman named Immaculée Mukankusi who was 25 years old and eight months pregnant. He hit her with the butt of his gun, she fell down, he dropped his trousers and underwear to the knees and jumped on her. The witness said Immaculee was struggling and she was crying because he was saying that he was going to kill her. Musema was on top of her for about four minutes. After raping her, he put on his clothes, got up and killed her, stabbing her with the knife attached to his gun between the neck and the shoulder."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 68, 645, 761:
"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."
"645. The Trial Chamber, however, accepts the testimony of D.B. who testified that, prior to the intercourse, she had been threatened by "Gaga" that he would kill her if she did not satisfy the desires of his commander, the accused Dragoljub Kunarac. The Trial Chamber accepts D.B.s evidence that she only initiated sexual intercourse with Kunarac because she was afraid of being killed by "Gaga" if she did not do so."
"761. The Trial Chamber is satisfied that it has been proven beyond reasonable doubt that, while in Radomir Kovačs apartment, FWS-87 was raped by both Kovač and Jagos Kostic. Kovač reserved FWS-87 for himself and raped her almost every night he spent in the apartment. Jagos Kostic constantly raped A.S., and he took advantage of Kovačs absence to rape FWS-87 too. He threatened her that if she reported this to Radomir Kovač he would kill her. Kovač knew at all times that the girls did not consent to the sexual intercourse. Jagos Kostic could rape A.S. because she was held by Kovač in his apartment. Kovač therefore also substantially assisted Jagos Kostic in raping A.S., by allowing Jagos Kostic to stay in his apartment and to rape A.S. there."
P.11. Evidence that the perpetrator threatened to use force against a third person.
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 82, 174:
"82. The accused continued to interrogate Witness A, who was forced to remain naked in front of approximately 40 soldiers. Accused B drew a knife over the body and thigh of Witness A, threatening, inter alia, to cut out her private parts if she did not co-operate.96 As this was happening, it is alleged that the accused continued to interrogate her about her children, her alleged visits to the Moslem part of Vitez and why certain Croats had helped her when she was Moslem.97 The witness testified that the accused also issued threats against her children.98 She spoke of a direct relationship between his dissatisfaction with her answers and the assaults inflicted upon her by Accused B.99 She stated: "it was one at the same time the interrogation and the ill-treatment and the abuse".100
"96 T. 406; Defence Exhibit D13, p. 6.
97T. 406-407; Prosecution Exhibit P3, p. 25; Defence Exhibit D13, p. 6.
98T. 408-409.
99 T. 416.
100 T. 455."
"174. The Trial Chamber notes the unchallenged submission of the Prosecution in its Pre-trial Brief that rape is a forcible act: this means that the act is "accomplished by force or threats of force against the victim or a third person, such threats being express or implied and must place the victim in reasonable fear that he, she or a third person will be subjected to violence, detention, duress or psychological oppression" ".199
"199Prosecution's Pre-trial Brief, p. 15."
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 555:
"555. The Defense pointed out that the witness acknowledged, during cross-examination, that Radić had helped her by bringing her food and water and by moving her husband from the white house to the glass house.906 However, the Trial Chamber does not find that this fact discredits the testimony of the witness in any way. Indeed, the evidence suggests that he regularly attempted to bribe or coerce victims to "agree" to sexual intercourse in exchange for favors. The Trial Chamber recalls previous holdings by the Tribunal, as well as Rule 96, dealing with evidence in cases of sexual assault, which states that a status of detention will normally vitiate consent in such circumstances.907"
"906 Witness AT, T. 6152-6155.
907See Celebici Trial Chamber Judgement, para. 495; Furundzija Trial Chamber Judgement, para. 271; Kunarac Trial Chamber Judgement, para. 464. Rule 96 of the Rules of Procedure and Evidence provides that in cases of sexual assault, consent shall not be allowed as a defense if "the victim has been subjected to or threated [sic] with or has had reason to fear violence, duress, detention or psychological oppression".
"542. [ ] The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, [ ]detention or captivity [ ]".
P.12. Evidence of regular violence against detainees.
"98. Approximately thirty-six of the detainees held at Omarska camp were women. The women detained at Omarska were of different ages; the oldest were in their sixties and there was one young girl. The Trial Chamber heard compelling evidence from several female detainees who testified that it was commonplace for women to be subjected to sexual intimidation or violence in Omarska.236"
"236 Witness J, T. 4774-4775; Witness F, T. 5382-5383; Witness B, T. 2338, 2430; Nedzija Fazlic, T. 5102; Sifeta Susic, T. 3018-3019."
"561. [ ] the Trial Chamber takes into consideration the extraordinary vulnerability of the victims and the fact that they were held imprisoned in a facility in which violence against detainees was the rule, not the exception. The detainees knew that Radić held a position of authority in the camp, that he could roam the camp at will, and order their presence before him at any time. The women also knew or suspected that other women were being raped or otherwise subjected to sexual violence in the camp. The fear was pervasive and the threat was always real that they could be subjected to sexual violence at the whim of Radić."
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 89, 271:
"89. The further abuses visited upon Witness A, who remained in the custody of the Jokers for several weeks, are not the subject matter of the charges against the accused. Witness A continued to be detained until she was released in a prisoner exchange on 15 August 1993. Whilst in captivity, she was repeatedly raped, sexually assaulted and subjected to other cruel, inhuman and degrading treatment. As a result, she experienced severe physical and mental suffering."
"271. The elements of rape, as discussed in paragraph 185 of this Judgement, were met when Accused B penetrated Witness A's mouth, vagina and anus with his penis. Consent was not raised by the Defence, and in any case, Witness A was in captivity. Further, it is the position of the Trial Chamber that any form of captivity vitiates consent."
Prosecutor v. Duko Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997 paras. 165, 175:
"165. Women who were held at Omarska were routinely called out of their rooms at night and raped. One witness testified that she was taken out five times and raped and after each rape she was beaten."
"175. At Trnopolje there was no regular regime of interrogations or beatings, as in the other camps, but beatings and killings did occur. One witness, Sulejman Besic, testified to having seen dead people wrapped in paper and wired together, their tongues pulled out and, on a later occasion, having seen the slaughtered bodies of young girls and old men in the theatre. Because this camp housed the largest number of women and girls, there were more rapes at this camp than at any other. Girls between the ages of 16 and 19 were at the greatest risk. During evenings, groups of soldiers would enter the camp, take out their victims from the dom building and rape them. Another prisoner, Vasif Gutic, who had medical training, was assigned to work in the medical unit at Trnopolje and testified to the extensive rapes that occurred at the camp. He often counselled and treated victims of rape, the youngest girl being 12 years of age. In addition, there were women who were subjected to gang rapes; one witness testified that a 19-year-old woman was raped by seven men and suffered terrible pains and came to the clinic for treatment for haemorrhaging."
P.13. Evidence of detention in privately owned apartments.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 132:
"132. For the most part, the Appellants in this case were convicted of raping women held in de facto military headquarters, detention centres and apartments maintained as soldiers residences. As the most egregious aspect of the conditions, the victims were considered the legitimate sexual prey of their captors. Typically, the women were raped by more than one perpetrator and with a regularity that is nearly inconceivable. (Those who initially sought help or resisted were treated to an extra level of brutality). Such detentions amount to circumstances that were so coercive as to negate any possibility of consent."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 68, 210, 750, 780:
"68. [ ] During her time in the apartment, the girls were frequently threatened with murder; they were locked up and had no contact whatsoever with the outside world.205 [ ]"
"205 T 1720 and T 1814-1815."
"210. A.S. stayed in Radomir Kovačs 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 [ ]"
"621T 2018."
"750. The Trial Chamber is satisfied that the girls could not and did not leave the apartment without one of the men accompanying them. When the men were away, they would be locked inside the apartment with no way to get out. Only when the men were there would the door of the apartment be left open. Notwithstanding the fact that the door may have been open while the men were there, the Trial Chamber is satisfied that the girls were also psychologically unable to leave, as they would have had nowhere to go had they attempted to flee. They were also aware of the risks involved if they were re-captured."
"780. Radomir Kovač vac detained FWS-75 and A.B. for about a week, and FWS-87 and A.S. for about four months in his apartment, by locking them up and by psychologically imprisoning them, and thereby depriving them of their freedom of movement. During that time, he had complete control over their movements, privacy and labour. He made them cook for him, serve him and do the household chores for him. He subjected them to degrading treatments, including beatings and other humiliating treatments."
3.2.4. Evidence of psychological oppression.
"542. [ ] The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example [ ] psychological oppression [ ]."
P.14. Evidence of psychological oppression amounting to de facto detention.
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. 747, 750, 780:
"747. [ ] Paragraph 11.2 alleges that Radomir Kovač vac detained FWS-75 and A.B. - between about 31 October 1992 until December 1992 - and FWS-87 and A.S. - from the same date until February 1993 - in a apartment over which he had control. The Indictment alleges that, while being so kept, the girls had to perform household chores, that they were frequently [ ] psychologically oppressed and kept in constant fear."
"750. The Trial Chamber is satisfied that the girls could not and did not leave the apartment without one of the men accompanying them. When the men were away, they would be locked inside the apartment with no way to get out. Only when the men were there would the door of the apartment be left open. Notwithstanding the fact that the door may have been open while the men were there, the Trial Chamber is satisfied that the girls were also psychologically unable to leave, as they would have had nowhere to go had they attempted to flee. They were also aware of the risks involved if they were re-captured."
"780. Radomir Kovač vac detained FWS-75 and A.B. for about a week, and FWS-87 and A.S. for about four months in his apartment, by locking them up and by psychologically imprisoning them, and thereby depriving them of their freedom of movement. During that time, he had complete control over their movements, privacy and labour. He made them cook for him, serve him and do the household chores for him. He subjected them to degrading treatments, including beatings and other humiliating treatments."
P.15. Evidence of constant fear.
A. Legal source/authority and evidence:
"747. [ ] Paragraph 11.2 alleges that Radomir Kovač vac 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."
P.15.1. Evidence of constant threat of being subject to sexual violence.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 561:
"561. [ ] the Trial Chamber takes into consideration the extraordinary vulnerability of the victims and the fact that they were held imprisoned in a facility in which violence against detainees was the rule, not the exception. The detainees knew that Radić held a position of authority in the camp, that he could roam the camp at will, and order their presence before him at any time. The women also knew or suspected that other women were being raped or otherwise subjected to sexual violence in the camp. The fear was pervasive and the threat was always real that they could be subjected to sexual violence at the whim of Radić."
[B. Evidentiary comment:]
3.2.5. Evidence of abuse of power.
"542. [ ] The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, [ ] the abuse of power [ ]."
P.16. Evidence of victims being subjected to the authority of the perpetrator.
A. Legal source/authority and evidence:
"548. Radić grossly abused his position and took advantage of the vulnerability of the detainees. On one occasion he called Witness J into his office and told her that he could help her if she had sexual intercourse with him."
"561. [ ] the Trial Chamber takes into consideration the extraordinary vulnerability of the victims and the fact that they were held imprisoned in a facility in which violence against detainees was the rule, not the exception. The detainees knew that Radić held a position of authority in the camp, that he could roam the camp at will, and order their presence before him at any time. The women also knew or suspected that other women were being raped or otherwise subjected to sexual violence in the camp. The fear was pervasive and the threat was always real that they could be subjected to sexual violence at the whim of Radić."
"780. Radomir Kovač vac detained FWS-75 and A.B. for about a week, and FWS-87 and A.S. for about four months in his apartment, by locking them up and by psychologically imprisoning them, and thereby depriving them of their freedom of movement. During that time, he had complete control over their movements, privacy and labour. He made them cook for him, serve him and do the household chores for him. He subjected them to degrading treatments, including beatings and other humiliating treatments."
P.17. Evidence that the perpetrator "bribed" one or more persons to "agree" to sexual intercourse.
A. Legal source/authority and evidence:
"542. [ ] The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, [ ] promises; [ ]"
P.17.1. Evidence of promising to spare family members.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 551:
"551. Witness K testified about an occasion when one of the cleaning ladies in the camp, Vinka Andzic, came to fetch her, saying that Radić needed her. Radić had previously attempted to coerce her into having sex with him by saying that her children would not be killed if she would agree to having sexual intercourse with him.896 She was led upstairs to the conference room where Radić was waiting. Witness K noticed a foam mattress on the floor,897 and stated that "He told me that my children would not be harmed . . . .Then he attacked me, he assaulted me, and he raped me."898 After Radić left, she said that she stayed in the room for a while to try to stop her bleeding, which was due not only to her menstruating but also to the forced penetration of her vagina."899
"896 Witness K, T. 4983-4984, 5056.
897 Witness K, T. 4983-4984.
898 Witness K, T. 4984-4985, 4987-4988.
899 Witness K, T. 5058."
[B. Evidentiary comment:]
P.17.2. Evidence of providing food and water.
P.17.3. Evidence of changing detention conditions.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 555:
"555. The Defense pointed out that the witness acknowledged, during cross-examination, that Radić had helped her by bringing her food and water and by moving her husband from the white house to the glass house.906 However, the Trial Chamber does not find that this fact discredits the testimony of the witness in any way. Indeed, the evidence suggests that he regularly attempted to bribe or coerce victims to "agree" to sexual intercourse in exchange for favors."
"906Witness AT, T. 6152-6155."
[B. Evidentiary comment:]
P.18. Evidence of the involvement of local authorities.
A. Legal source/authority and evidence:
"576. All this was done in full view, in complete knowledge and sometimes with the direct involvement of the local authorities, particularly the police forces. The head of Foča police forces, Dragan Gagovic, was personally identified as one of the men who came to these detention centres to take women out and rape them."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 495:
3.2.6. Evidence of a coercive environment.
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 129:
"129. [ ] with regard to the role of force in the definition of rape, the Appeals Chamber notes that the Trial Chamber appeared to depart from the Tribunals prior definitions of rape.158 However, in explaining its focus on the absence of consent as the conditio sine qua non of rape, the Trial Chamber did not disavow the Tribunals earlier jurisprudence, but instead sought to explain the relationship between force and consent. Force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape.159 In particular , the Trial Chamber wished to explain that there are "factors [other than force] which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim".160 A narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force."
"158 See, e.g., Furundzija Trial Judgement, para 185. Prior attention has focused on force as the defining characteristic of rape. Under this line of reasoning, force or threat of force either nullifies the possibility of resistance through physical violence or renders the context so coercive that consent is impossible.
159 Trial Judgment, para 458.
160 Ibid., para 438."
P.19. Evidence of an armed conflict.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 130:
"646. The Trial Chamber rejects the evidence of the accused Dragoljub Kunarac that he was not aware of the fact that D.B. only initiated sexual intercourse with him for reasons of fear for her life. The Trial Chamber regards it as highly improbable that the accused Kunarac could realistically have been "confused" by the behaviour of D.B., given the general context of the existing war-time situation and the specifically delicate situation of the Muslim girls detained in Partizan or elsewhere in the Foča region during that time. As to whether or not he was aware of the threat by "Gaga" against D.B., the Trial Chambers finds it irrelevant as to whether or not Kunarac heard "Gaga" repeat this threat against D.B. when he walked into the room, as D.B. testified. The Trial Chamber is satisfied that D.B. did not freely consent to any sexual intercourse with Kunarac. She was in captivity and in fear for her life after the threats uttered by "Gaga"."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 495:
"495. Furthermore, it is difficult to envisage circumstances in which rape, by, or at the instigation of a public official, or with the consent or acquiescence of an official, could be considered as occurring for a purpose that does not, in some way, involve punishment, coercion, discrimination or intimidation. In the view of this Trial Chamber this is inherent in situations of armed conflict."
"686.[ ]The Tribunal notes in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal. Sexual violence falls within the scope of "other inhumane acts", set forth Article 3(i) of the Tribunals Statute, "outrages upon personal dignity," set forth in Article 4(e) of the Statute, and "serious bodily or mental harm," set forth in Article 2(2)(b) of the Statute."
"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."
P.20. Evidence of a military presence.
P.20.1. Evidence of a military presence in a refugee camp.
A. Legal source/authority and evidence:
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998,, para. 686:
"686.[ ]The Tribunal notes in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal. Sexual violence falls within the scope of "other inhumane acts", set forth Article 3(i) of the Tribunals Statute, "outrages upon personal dignity," set forth in Article 4(e) of the Statute, and "serious bodily or mental harm," set forth in Article 2(2)(b) of the Statute."
[B. Evidentiary comment:]
3.2.7. Evidence of incapacity to give genuine consent.
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 459-460:
"459. Given that it is evident from the Furundija case that the terms coercion, force, or threat of force were not to be interpreted narrowly and that coercion in particular would encompass most conduct which negates consent, this understanding of the international law on the subject does not differ substantially from the Furundija definition."
"460. In light of the above considerations, the Trial Chamber understands that the actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victims free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim."
P.21. Evidence of physical incapacity.
P.22. Evidence of mental incapacity.
A. Legal source/authority and evidence:
"387. A number of jurisdictions provide that specified sexual acts will constitute rape not only where accompanied by force or threat of force but also in the presence of other specified circumstances. These circumstances include that the victim was put in a state of being unable to resist, was particularly vulnerable or incapable of resisting because of physical or mental incapacity, or was induced into the act by surprise or misrepresentation."
P.23. Evidence of induced incapacity.
P.23.1. Evidence of induced incapacity caused by surprise.
P.23.2. Evidence of induced incapacity caused by misrepresentation.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 387:
"387. A number of jurisdictions provide that specified sexual acts will constitute rape not only where accompanied by force or threat of force but also in the presence of other specified circumstances. These circumstances include that the victim was put in a state of being unable to resist, was particularly vulnerable or incapable of resisting because of physical or mental incapacity, or was induced into the act by surprise or misrepresentation."
[B. Evidentiary comment:]
P.23.3. Evidence of incapacity caused by intoxication.
P.24. Evidence of age-related incapacity.
A. Legal source/authority and evidence:
"591. Zoran Vuković also perpetuated the attack by personally raping at least two Muslim girls, FWS-75 and FWS-50. While raping FWS-50, a girl whom he knew was of the same age as his own daughter, Zoran Vuković boasted that he could have done much worse to her and that she was lucky about this coincidence."
"The last part of this [third] element deals with the alternative circumstance in which the invasion was committed against a person incapable of giving genuine consent. This is meant to cover cases where a child, an elderly, a disabled person or a person under the influence of for example drugs, is subject to rape. These examples are captured in footnote 51 which states: "It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity." In these circumstances, non-consent is presumed, as such persons are deemed to be incapable of giving genuine consent. "Genuine" is meant to cover concepts such as voluntary and informed consent."
