Table of contents:
3.1. The perpetrator confined one or more women.
3.1.1. Evidence showing confinement of one or more women.
P.1. Evidence of confinement in an enclosed space with prevention of movement to other spaces.
P.1.1. Evidence of victims being locked in cells.
P.1.2. Evidence of victims being detained in guarded garages.
P.1.3. Evidence of victims being detained in locked or guarded storage rooms.
P.2. Evidence of confinement in established or makeshift camps or detention centres.
P.2.1. Evidence of confinement in a camp.
P.2.2. Evidence of confinement in a detention centre.
P.2.3. Evidence of confinement in an office building.
P.2.4. Evidence of confinement in a school.
P.2.5. Evidence of confinement in a veterinary station.
P.2.6. Evidence of confinement in military barracks.
P.2.7. Evidence of confinement in a stadium.
P.2.8. Evidence of confinement in a warehouse.
P.2.9. Evidence of confinement in a cinema.
P.3. Evidence of confinement in homes or cities.
P.3.1. Evidence of house arrest.
P.3.2. Evidence of restriction to a closed village or city.
3.2. The women had been forcibly made pregnant.
P.4. Medical evidence of pregnancy.
P.5. Not sufficient: Evidence of a failed attempt to impregnate.
3.2.2. Evidence that one or more women were forcibly made pregnant.
P.6. Evidence of the forcible nature of the initial act leading to pregnancy.
P.6.1. Evidence of vaginal rape.
P.6.2. Evidence of forcible artificial insemination.
P.7. Evidence of forcing a woman to remain pregnant by limiting her reproductive choices.
P.7.1. Evidence of preventing contraceptive use.
P.7.2. Evidence of preventing abortion.
P.8. Evidence of the general use of force in making a woman remain pregnant.
P.8.1. Evidence of the use of physical force.
P.8.2. Evidence of punishment.
P.8.3. P.8.3. Evidence of a fear of violence or duress.
P.8.4. Evidence of psychological oppression using discrimination.
P.8.5. Evidence of psychological oppression using intimidation.
P.8.6. Evidence of psychological oppression using humiliation.
P.8.7. Evidence of taking advantage of a coercive environment.
P.9. Not required: Evidence that the victim did not consent.
3.3. The perpetrator intended to affect the ethnic composition of any population; or.
3.3.1. Evidence establishing the ethnic composition of a population.
3.4. The perpetrator intended to carry out grave violations of international law.
P.13. Evidence that the perpetrator intended to permanently stigmatize a victim.
Element:
3.1. The perpetrator confined one or more women.
A. Evidentiary comment:
Forced pregnancy is a new crime under the Rome Statute, and resulted from one of the most controversial negotiations in Rome. (E. La Haye, "Article 8(2)(b)(xxii)-4Forced Pregnancy", in R. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), p. 193). Several delegations, including the Holy See and the United Arab Emirates, feared that policies not to provide abortion services might be interpreted as forced pregnancy under elements proposed by the United States and Swiss delegations. In the end, no compromise was reached and the elements of the crime reproduce verbatim the definition of forced pregnancy contained in article 7 (2) (f) of the Rome Statute. As a result, the structure of element 1 does not match other crimes in the Statute and does not correspond to the structure set out in paragraph 7 of the general introduction to the Elements of Crimes document.
Forced pregnancy was not included in the Statutes of the ICTY or ICTR, and has not yet been addressed in any international criminal judgments. Accordingly, many of the means of proof below have been formulated based on evidence adduced in other crimes with similar elements. Regarding the means of proving the confinement of one or more women, one commentator has noted:
The words unlawful confinement should be interpreted as any form of deprivation of physical liberty contrary to international law and standards.215 In contrast to paragraph 1(e) [of Article 7 of the Rome Statute, "Imprisonment or other severe deprivation of physical liberty"], this definition does not require the deprivation of liberty to be severe. (M. Boot, "(f) Forced Pregnancy", in O. Triffterer (ed.), Commentary on the Rome Statute (1999), article 7, margin No. 108).
"215. It has also been noted in the commentary on the definition of torture, regarding the concept of lawful sanctions, that [i]t is international law and not domestic law which ultimately determines whether a certain practice may be regarded as lawful, Report of the UN Special Rapporteur on torture, U.N. Doc. E/CN.4/1998/17, para. 42; see margin No. 104."
The means of proving confinement for forced pregnancy are therefore excerpted from the means of proof for unlawful confinement, article 8 (2) (a) (vii), which similarly does not require proof of severity. The means of proof may expand or narrow when the ICC judges interpret article 7 (1) (g)-4 in future cases.
3.1.1. Evidence showing confinement of one or more women.
P.1. Evidence of confinement in an enclosed space with prevention of movement to other spaces.
P.1.1. Evidence of victims being locked in cells.
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. 536:
"536. Prosecution witnesses testified that they were detained in cells,1108 and garages in the yard of the SUP,1109 where they were guarded.1110 Hasan Bicic testified that when he was detained at the SUP on 18 April 1992, the entrance to the building was surrounded by two lines of soldiers.1111"
"1108. Izet Izetbegovic, T. 2279; Sulejman Tihic, T.1410-11, T. 1414; Witness C, T. 7918-19; Witness Q, T. 11724-25; Osman Jasarevic, Rule 92bis Statement, para. 56.
1109. Esad Dagovic, T. 3994-96; Exhibit P14a (n. 56); Witness A, Rule 92bis Statement, para. 86.
1110. Detainees were guarded by persons with camouflage paint on their faces (Hasan Bicic, T. 2650). Sulejman Tihic stated that when he was arrested and taken to the SUP on 18 April 1992, he saw people in all kinds of uniforms including Grey Wolves, JNA, Serb Territorial Defence, Police, Red Berets and different camouflage uniforms (Sulejman Tihic, T. 1374, T. 1377).
1111. Hasan Bicic, T. 2644."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 112:
"112. The Trial Chamber is of the view that any form of arbitrary physical deprivation of liberty of an individual may constitute imprisonment under Article 5(e) as long as the other requirements of the crime are fulfilled.338 In the instant case, it is alleged that the victims were deprived of their liberty by being locked in cells at the KP Dom for substantial periods of time.339"
"338. International instruments use various terms to refer to deprivation of liberty, including inter alia "arrest," "detention" and "imprisonment". The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, as adopted by the General Assembly resolution 43/173 of 9 December 1988, defines these terms in its preamble while declaring that the principles enshrined shall apply "for the protection of all persons under any form of detention or imprisonment". The Working Group on Arbitrary Detention (1991) also points out that deprivation of liberty is referred to by different names, including, "apprehension, incarceration, prison, reclusion, custody and remand", United Nations High Commissioner for Human Rights, Fact Sheet No 26, Working Group on Arbitrary Detention, p 4. The Commission on Human Rights adopted in its resolution 1997/50 the definition "deprivation of liberty imposed arbitrarily", E/CN.4/RES/1997/50, 15 April 1997, par 15.
339. FWS-109 (T 2355); FWS-66 (T 1068); FWS-198 (T 957); FWS-139 (T 319); FWS-73 (T 3194); FWS-210 (T 4833); FWS-250 (T 5021)."
[B. Evidentiary comment:]
P.1.2. Evidence of victims being detained in guarded garages.
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. 536:
"536. Prosecution witnesses testified that they were detained in cells,1108 and garages in the yard of the SUP,1109 where they were guarded.1110 Hasan Bicic testified that when he was detained at the SUP on 18 April 1992, the entrance to the building was surrounded by two lines of soldiers.1111"
"1108. Izet Izetbegovic, T. 2279; Sulejman Tihic, T.1410-11, T. 1414; Witness C, T. 7918-19; Witness Q, T. 11724-25; Osman Jasarevic, Rule 92bis Statement, para. 56.
1109. Esad Dagovic, T. 3994-96; Exhibit P14a (n. 56); Witness A, Rule 92bis Statement, para. 86.
1110. Detainees were guarded by persons with camouflage paint on their faces (Hasan Bicic, T. 2650). Sulejman Tihic stated that when he was arrested and taken to the SUP on 18 April 1992, he saw people in all kinds of uniforms including Grey Wolves, JNA, Serb Territorial Defence, Police, Red Berets and different camouflage uniforms (Sulejman Tihic, T. 1374, T. 1377).
1111. Hasan Bicic, T. 2644."
[B. Evidentiary comment:]
P.1.3. Evidence of victims being detained in locked or guarded storage rooms.
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. 541:
"541. Detainees were held in several rooms at the TO, one large and one small, and were also held in a room referred to as a storage room, where they were guarded.1125 Dragan Lukac testified that two armed Serbian policemen from Bosanski Samac guarded the locked door to the storage room where people were detained.1126 [ ]"
"1125. Witness E, T. 7717; Dragan Lukac, T. 1735.
1126. Dragan Lukac, T. 1678."
[B. Evidentiary comment:]
P.2. Evidence of confinement in established or makeshift camps or detention centres.
P.2.1. Evidence of confinement in a camp.
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. 666:
"666. The Trial Chamber finds that family members of some of the men detained in other facilities, including the SUP and TO in Bosanski Samac, or who had been exchanged, were detained in Zasavica.1521 In late June 1992, family members of men who escaped across the Sava River into Croatia, to avoid the mobilization call, were rounded up in military trucks and taken to Zasavica, and detained in camps there. Women, children and elderly were held there, including some men.1522 [ ] People did not go voluntarily to the camp in Zasavica, nor were they able to leave the village.1526 [ ]"
"1521. Esad Dagovic, T. 3985-86; Witness K, T. 4699, T. 4707.
1522. Jelena Kapetanovic, T. 8943-46; Nusret Hadzijusufovic, T. 6954-56, Safet Dagovic, T. 7234-35, Osman Jasarevic, Rule 92bis Statement, para. 127, Ediba Bobic, T. 11271-72.
1526. Nusret Hadzijusufovic, T. 6954-56."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 116:
"116. The Trial Chamber is satisfied that, between 10 April 1992 and the beginning of June 1992, large-scale arrests of non-Serb civilian men, mostly of Muslim ethnicity, were carried out throughout Foca and its environs. Subsequent to their arrest, the men were transferred to the KP Dom."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 299, 774:
"299. [ ] The International Law Commission further indicates that arbitrary imprisonment is contrary to Article 9 of the Universal Declaration of Human Rights and to Article 9 of the International Covenant on Civil and Political Rights ("ICCPR")418 and would cover the practice of concentration camps or detention camps or "other forms of long-term detention".419"
"418. Ibid. Article 9, para. 1, of the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16 December 1996 ("ICCPR") provides that: "No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law".
419. 1996 ILC Report, p. 101."
"774. The most substantial facility was at Kaonik camp, five kilometres north of Busovaca.1593 Muslim civilians and TO members were detained in the camp on two occasions: first, after the HVO attack on the municipality in January 1993 and, secondly, after the attacks in the Lasva Valley in April 1993. [ ]"
"1593. Aerial photo, Ex. Z1862.1. Witness J, T. 4536."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 1130:
"1130. It is clear that a considerable number of prisoners were detained in the Celebici prison-camp between the period of April and December 1992. [ ]"
[B. Evidentiary comment:]
P.2.2. Evidence of confinement in a detention centre.
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. 534:
"534. Defence witnesses testified that in the initial days after war broke out in Bosanski Samac, people were detained in detention facilities within the Municipality of Bosanski Samac and in other areas that included the SUP, TO, primary and secondary schools, Zasavica, Crkvina, Brcko, and Bijeljina.1098 Some witnesses testified how hundreds of non-Serbs, including Muslim and Croat women and children, were held in detention centres,1099 and that some non-Serbs were detained in these facilities.1100 Miroslav Tadic testified that between 500 and 600 persons could have passed through the detention facilities. [ ]"
"1098. Svetozar Vasovic, T. 14964; Radovan Antic, T. 16843; Velimir Maslic, T. 14189, T. 14208-09; Miroslav Tadic, T. 15532-33. One witness, Branislav Marusic, testified that he had no knowledge that hundreds of non-Serb civilians including men, women, children, and elderly were isolated at facilities in Samac. He did not know about the situation in the prisons and detention facilities (T. 18956). The Trial Chamber notes that it will not take into consideration liability of the accused with respect to detainees held at Batkovic, on the basis that this detention centre is not covered within the scope of the Amended Indictment or the Prosecution Pre-trial Brief.
1099. Muharem Bicakcic, Deposition T. 98-99; ?eljko Volasevic, T. 16592-93, T. 17760-61; Teodor Tutnjevic, T. 17446-48; Stevan Arandjic, Deposition T. 179; Simo Zaric, T. 20073.
1100. Zeljko Volasevic, T. 17761; Naser Sejdic, T. 17556-57; Savo Djurdevic, T. 17638-39."
[B. Evidentiary comment:]
P.2.3. Evidence of confinement in an office building.
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 680:
"680. The indictment alleges that from January 1993 to January 1994, Bosnian Muslims were detained by the HVO in [ ] the SDK offices in Vitez, Kiseljak barracks, Rotilj village and the houses of Gacice 1547 ."
"1547. Second amended indictment, para. 12."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 781:
"781. A third Vitez detention centre was established in the SDK building, a block of offices in Vitez. [ ]"
[B. Evidentiary comment:]
P.2.4. Evidence of confinement in a school.
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. 534, 549, 654, 664, 668:
"534. Defence witnesses testified that in the initial days after war broke out in Bosanski Samac, people were detained in detention facilities within the Municipality of Bosanski Samac and in other areas that included the SUP, TO, primary and secondary schools, Zasavica, Crkvina, Brcko, and Bijeljina.1098 Some witnesses testified how hundreds of non-Serbs, including Muslim and Croat women and children, were held in detention centres,1099 and that some non-Serbs were detained in these facilities.1100 Miroslav Tadic testified that between 500 and 600 persons could have passed through the detention facilities. There were about 50 persons in the TO and primary school as well, and about 300 in the secondary school.1101"
"1098. Svetozar Vasovic, T. 14964; Radovan Antic, T. 16843; Velimir Maslic, T. 14189, T. 14208-09; Miroslav Tadic, T. 15532-33. One witness, Branislav Marusic, testified that he had no knowledge that hundreds of non-Serb civilians including men, women, children, and elderly were isolated at facilities in Samac. He did not know about the situation in the prisons and detention facilities (T. 18956). The Trial Chamber notes that it will not take into consideration liability of the accused with respect to detainees held at Batkovic, on the basis that this detention centre is not covered within the scope of the Amended Indictment or the Prosecution Pre-trial Brief.
1099. Muharem Bicakcic, Deposition T. 98-99; ?eljko Volasevic, T. 16592-93, T. 17760-61; Teodor Tutnjevic, T. 17446-48; Stevan Arandjic, Deposition T. 179; Simo Zaric, T. 20073.
1100. Zeljko Volasevic, T. 17761; Naser Sejdic, T. 17556-57; Savo Djurdevic, T. 17638-39.
1101. Miroslav Tadic, T. 15533-34."
"549. Prosecution witnesses testified how a group of detainees were transferred from Bijeljina to the primary and secondary school in Bosanski Samac on 13 May 1992.1148 During the spring and summer of 1992, detainees were placed in the primary1149 and secondary school gymnasiums in Bosanski Samac,1150 and guarded there.1151 The camp in the secondary school building was used to hold detainees until 30 January 1993 .1152 The gym was the only part of the secondary school left intact, as the school had burnt down.1153 The guards would rotate their duties from the secondary and elementary school to the TO and the SUP building.1154 Snjezana Delic stated that the secondary school, where there was a large number of Croats waiting to be exchanged, was referred to as an "isolation camp."1155"
"1148. Muhamed Bicic, T. 2977-78, T. 2981; Ibrahim Salkic, T. 3320, T. 3324, T. 3368; Dragan Delic, T. 6688-89, T. 6701; Hasan Subasic, T. 10957-58, T. 10960; Witness N, T. 6101-04; Hasan Bicic, T. 2710-11, T. 2715, T. 2719-21; Witness O, Rule 92bis Statement, paras 23, 35.
1149. Primary and elementary school are used interchangeably by some witnesses.
1150. Witness O, Rule 92bis Statement, para. 32; Nusret Hadzijusufovic, T. 6952-53.
1151. Ibrahim Salkic, T. 3361-62.
1152. Nusret Hadzijusufovic, T. 7077.
1153. Muhamed Bicic, T. 2980; Witness N, T. 6110.
1154. Hasan Subasic, T. 10965.
1155. Snjezana Delic, T. 6422; Osman Jasarevic, Rule 92bis Statement, paras 112-117."
"654. [ ] From May 1992 until the end of the year, numbers of those arrested and held at the SUP varied from 50 to 100 persons.1469 Around 200 arrested persons were detained at the TO during this period,1470 and between 300 and 500 arrested persons were brought to the secondary school in Bosanski Samac.1471 [ ]"
"1469. Dragan Lukac, T. 1742; Ibrahim Salkic, T. 3382.
1470. Witness E, T. 7717; Ibrahim Salkic, T. 3368; Witness L, T. 4343; Witness M, T. 5236.
1471. Hasan Subasic, T. 10960-61; Mladen Borbeli, T. 14724."
"664. The Trial Chamber finds that detainees were held at the primary and secondary school gymnasiums, several hundred metres away from the SUP and TO in Bosanski S amac. The numbers of detainees rose to 50 at the primary school, and between 300 and 500 in the secondary school.1510 The first group of detainees at the primary and secondary school were transferred there on 13 May 1992 from the JNA barracks in Bijeljina.1511 Throughout the spring and summer of 1992, people were brought to the primary and secondary schools and detained there, including men from the Kultur Dom in Crkvina and from Zasavica.1512 Detainees were held in the schools for months at a time.1513"
"1510. Hasan Subasic, T. 10960-61. Miroslav Tadic testified that 50 men were detained in the primary school and 300 at the secondary school (T. 15533).
1511. Detainees transferred to the primary and secondary schools from Bijeljina from 13 May 1992, and detained there included Muhamed Bicic, T. 2977-78, T. 2981; Ibrahim Salkic, T. 3320, T. 3324, T. 3368; Dragan Delic, T. 6688-89; Hasan Subasic, T. 10957-60, T. 10980; Witness N, T. 6098, T. 6101-04, T. 6110; Hasan Bicic, T. 2711, T. 2715, T. 2719-21.
1512. Witness O, Rule 92bis Statement, paras 32, 35; Nusret Hadzijusufovic, T. 6952-53.
1513. Ibrahim Salkic was held in the primary school from about 15-17 May 1992 until late September 1992 (T. 3328). Dragan Delic was held there from 13 May 1992 until 4 September 1992 (T. 6688-89)."
"668. [ ] After a group of detainees were transferred to Batajnica in Serbia, the rest remained in Bijeljina for approximately two weeks before being taken to facilities in Bosanski Samac that included the primary and secondary schools.1536 [ ]"
"1536. Osman Jasarevic, Rule 92bis Statement, para. 110; Hasan Bicic, T. 2701-03, T. 2705-06, T. 2711; Muhamed Bicic, T. 2977-79, T. 2981; Ibrahim Salkic, T. 3313-16, T. 3320-21; Dragan Delic, T. 6682, T. 6685, T. 6688-89; Witness N, T. 6092-96, T. 6098."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 794:
"794. [ ] The men aged between 16 and 60 years were separated from the women and children1689 and taken to the elementary school. Conditions there were very bad: 105 men were kept in a cell measuring six metres by seven metres and received hardly any water .1690 [ ]"
"1689. Witness F, T. 3437-40.
1690. Witness AH, T. 14435-36; Witness AH, T. 14435."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 413, 680, 695:
"413. Some inhabitants were transferred to the school in Dubravica 845 . According to the Commission on Human Rights, "approximately 150 Muslims were rounded up and detained for sixteen days in the Braca Ribara school in Dubravica. [ ]"
"845. Witness G, PT pp. 3867-3868; Elvir Ahmic, PT p. 3264."
"680. The indictment alleges that from January 1993 to January 1994, Bosnian Muslims were detained by the HVO in [ ] Dubravica primary school [ ] 1547 ."
"1547. Second amended indictment, para. 12."
"695. Located in a municipal building near to Vitez railway station and just over two and a half kilometres from the Hotel Vitez 1587 , Dubravica primary school was the billet for the Vitezovi unit and the Ludwig Pavlovic Brigade 1588 . During the second half of April 1993, the school also served as an HVO detention centre. Two hundred Muslim men, women and children from the villages of Vitez municipality were detained there 1589 .[ ]"
"1587. P32, witness Zeco, PT of 26 September 1997, pp. 2818-2819; witness Leach, PT of 27 June 1997, pp. 272-274.
1588. Witness Sefkija Djidic, PT of 29 July 1997, pp. 1226-1227; witness HH, PT p. 6836.
1589. Witness Zeco, PT of 26 September 1997, pp. 2819-2820; witness XX, PT p. 10466 and pp. 10468-10469."
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, para. 280:
"280. Those persons who survived the attack on Ahmici were moved to a prison camp which had been set up in Dubravica school, where they were mistreated and used, inter alia, to dig trenches in contravention of the laws of war.313 [ ] According to Witness U, the HVO was in charge of Dubravica school. 150-200 men, women and children, all Bosnian Muslims, were detained in a hall there. They were not free to leave. Witness U stayed in Dubravica school for six days, before he was evacuated by UNHCR because of his wounds.317"
"314. T. 1401.
317. T. 3029-3031."
[B. Evidentiary comment:]
P.2.5. Evidence of confinement in a veterinary station.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 780:
"780. The prosecution case is that a detention centre was established in this station and was used for the first few days of the conflict in Vitez. Evidence was given by Fuad Zeco, Director of the Station, who was taken there by HVO soldiers on the morning of 16 April, having been arrested in his home.1623 He said that there were about 40 Muslims detained in the basement on his arrival and around 70 people were detained there at any one time: the guards did not provide the detainees with any food but the detainees families could bring food for them. He also said that detainees were taken to dig trenches at Kruscica and that two were killed.1624 After four days the detainees were taken to the Dubravica school. In the Veterinary Station the detainees could move around freely, make telephone calls and receive food from home .1625"
"1623. Ex. Z2765 is a photo of the veterinary station; Fuad Zeco, T. 6508-10.
1624. T. 6516; Ex. Z2210.4, .5 are the death certificates.
1625. Zdrako Zuljevic, T. 24393-94."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 680, 694:
"680. The indictment alleges that from January 1993 to January 1994, Bosnian Muslims were detained by the HVO in [ ] Vitez veterinary station, Dubravica primary school, the SDK offices in Vitez, Kiseljak barracks, Rotilj village and the houses of Gacice 1547 ."
"1547. Second amended indictment, para. 12."
"694. On 16 April 1993, HVO soldiers detained a large number of male Muslim civilians in Vitez veterinary station 1581 . The station was inside a municipal building located approximately 900 metres from the Hotel Vitez 1582 . [ ] The elderly were finally transferred to the veterinary stations examination room 1584 .[ ]"
"1581. Witness Zeco, PT of 26 September 1997, pp. 2808-2810; witness D, PT of 24 September 1997, pp. 2700-2701; witness Beso, PT of 26 August 1997, PT p. 2217, p. 2219.
1582. Witness Leach, PT of 27 June 1997, pp. 272-273.
1584. Witness D, PT of 24 September 1997, pp. 2700-2701."
[B. Evidentiary comment:]
P.2.6. Evidence of confinement in military barracks.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 629:
"629. Witness AN testified that on 12 June 1993 the village of Tulica was attacked, following which he and a number of others were put onto a truck and taken to the Kiseljak barracks, where he was put in a cell together with approximately thirty -five people.881 [ ]."
"881. T. 15 678-79."
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 667-668:
"667. [ ] Lt. Col. Stevan Nikolic then contacted Captain Petrovic, and they agreed to the transfer, where detainees were loaded onto trucks with the assistance of Makso S imeunovic, Savo Cancarevic and Mihajlo Topolovac, and taken to the JNA barracks in Brcko.1530 They were guarded at the barracks by JNA soldiers.1531 This group of detainees was held there until the conflict broke out in Brcko on 1 or 2 May 1992. [ ]"
"1530. Simo Zaric, T. 19335-39, T. 19391.
1531. Hasan Subasic, T. 10956-57."
"668. The Trial Chamber finds that detainees who were held in Brcko were transferred by military escort to the JNA barracks in Bijeljina on 1 or 2 May 1992, following the outbreak of war in Brcko.1533 [ ]The barracks in Bijeljina were guarded by Serb military men, including officers and reserves.1535 [ ]"
"1533. Dragan Lukac, T. 1707; Osman Jasarevic, Rule 92bis Statement, paras 97, 99. Detainees who were transferred from Brcko and detained in the JNA barracks in Bijeljina on 1 or 2 May 1992 included Sulejman Tihic (T. 1376, T. 1451); Dragan Lukac, T. 1706-13; Hasan Bicic, T. 2701-06, T. 2711; Muhamed Bicic, T. 2967, T. 2973, T. 2977; Ibrahim Salkic, T. 3313, T. 3316, T. 3320-21, T. 3394-95; Witness N, T. 6092-96; Dragan Delic, T. 6682, T. 6685, T. 6689.
1535. Sulejman Tihic, T. 1480."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 790:
"790. In April and June 1993 two facilities were used by the HVO for the purpose of detaining Muslims from the villages around Kiseljak town, namely the barracks and municipal buildings in the town. The prisoners were initially detained in the barracks where they were kept in overcrowded and unhygienic conditions, their valuables having been taken from them.1675 [ ]"
"1675. Witness Y, T. 11004-13; Witness AN, T. 15679-80; photo of barracks, Ex. Z1894.1."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 680, 690:
"680. The indictment alleges that from January 1993 to January 1994, Bosnian Muslims were detained by the HVO in [ ] Kiseljak barracks, Rotilj village and the houses of Gacice 1547 ."
"1547. Second amended indictment, para. 12."
"690. On 23 April 1992, the HVO took over a former JNA barracks in Kiseljak where Tihomir Blaskic set up one of his headquarters 1568 . As of April 1993 until approximately November 1993 1569 , the barracks were also used as a detention centre to hold many male Muslim civilians captured by the HVO in the villages of Kiseljak municipality 1570 . At one time, there were also women and children interned at the prison 1571 . [ ]"
"1568. Witness MM, PT p. 8229; witness Friis-Pedersen, PT pp. 5485-5486.
1569. Witness Friis-Pedersen, PT pp. 5485-5486.
1570. Witness AA, PT p. 6619, pp. 6652-6653; witness DD, PT pp. 7035-7038, pp. 7058-7059; witness JJ, PT pp. 7393-7394, pp. 7410-7411.
1571. Witness Lanthier, PT p. 8303."
[B. Evidentiary comment:]
P.2.7. Evidence of confinement in a stadium.
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. 665:
"665. The Trial Chamber finds that a group of Croat women and children were taken to Crkvina in mid-May 2003. They were detained in facilities in Crkvina, together with men and the elderly, in places that included the Youth Centre,1514 a warehouse,1515 the Omladinski Dom1516 and the Sport Stadium.1517 [ ] Women residents of Bosanski Samac were allowed to leave the Sport Stadium and return home, while others from the neighbouring villages were taken to Zasavica.1520"
"1514. Dragan Lukac, T. 1660.
1515. Witness P, T. 11566, T. 11588-93.
1516. Witness O, Rule 92bis Statement, paras 25, 33.
1517. Jelena Kapetanovic, T. 8943-46; Simo Zaric, T. 19449.
1520. Jelena Kapetanovic, T. 8970-80."
[B. Evidentiary comment:]
P.2.8. Evidence of confinement in a warehouse.
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. 665:
"665. The Trial Chamber finds that a group of Croat women and children were taken to Crkvina in mid-May 2003. They were detained in facilities in Crkvina, together with men and the elderly, in places that included the Youth Centre,1514 a warehouse,1515 the Omladinski Dom1516 and the Sport Stadium.1517 [ ]"
"1514. Dragan Lukac, T. 1660.
1515. Witness P, T. 11566, T. 11588-93.
1516. Witness O, Rule 92bis Statement, paras 25, 33.
1517. Jelena Kapetanovic, T. 8943-46; Simo Zaric, T. 19449."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 794:
"794. [ ] According to Witness F, after the surrender the civilian Muslim population was ordered to gather and marched between HVO soldiers to four or five hangars or warehouses in the compound of the Nova Trgovina company where about 5,000 were detained. [ ] The women and children remained in the hangars, guarded by the HVO military police.1691"
"1691. Witness F, T. 3437-39."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 688:
"688. During the first half of 1993, male Muslim civilians, particularly from Busovaca municipality 1554 , were imprisoned by the HVO at Kaonik prison 1555 , a former JNA warehouse a little over 10 kilometres from the Hotel Vitez 1556 . The prison was made up of approximately twenty rooms, about 9 square metres, transformed for the purpose into cells to hold Muslims 1557 . [ ]."
"1554. The prisoners in Kaonik did not originate solely from the Municipality of Busovaca. Witness Y, for example, was arrested in Vitez and detained at the cultural centre in the town. Then, along with 13 other detainees, he was transferred to Kaonik prison where he remained from 5 to 14 May 1993. PT pp. 6509-6511.
1555. Witness Nuhagic, PT pp. 5214-5215, pp. 5228-5229, pp. 5247-5248; witness T, PT pp. 5769-5770, pp. 5771-5805.
1556. Witness Leach, PT of 27 June 1997, PT p. 259; witness Nuhagic, PT pp. 5228-5229.
1557. Witness T, PT pp. 5771-5772; witness Nuhagic, PT pp. 5228-5229."
[B. Evidentiary comment:]
P.2.9. Evidence of confinement in a cinema.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 777:
"777. The Vitez Cinema is part of a complex variously called "the Cinema", "Cultural Centre" or "Workers University". During the war this complex housed the headquarters of the Viteska Brigade. Parts of it (first the basement, then the cinema hall) were also used after 16 April 1993, for the detention of some 200-300 Muslim men of all ages, who had been rounded up.1614 [ ]"
"1614. Witness AC, T. 12606. Witness AC, T. 12608-12. Kadir Didic was detained in the Cinema on 17 April 1993 and taken to the basement where he found his Muslim neighbours, men of between 17 and 65 years of age, in the boiler room. There was no space to lie down. Initially there was no food provided and the detainees were only able to go to the toilet in an adjacent corridor. After several days he was transferred to the cinema hall where conditions were slightly better: T. 4014-20. Ex. Z767; Ex. Z805; Ex. Z807 and Ex. Z807/1 are documents signed by Tihomir Blaskic regarding the treatment of detainees in Central Bosnia: T. 4019-22."
[B. Evidentiary comment:]
P.3. Evidence of confinement in homes or cities.
P.3.1. Evidence of house arrest.
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. 645:
"645. The BH Muslim civilian population of Sovici was taken by the HVO soldiers to a hamlet of houses that were not destroyed called the Junuzovici houses and were made to stay there.1601 [ ]"
"1601. Witness X, T 3327-3329."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 793:
"793. Muslims were still detained in Rotilj in September 1993. On 28 September a Canbat officer, Captain Liebert, visited Rotilj and found 600 people there who had been displaced from all over the municipality: they were living in about 20 houses and conditions were poor and over-crowded.1685 [ ] Witness Y and his family were detained in a small weekend house which contained five families. [ ]"
"1685. Witness TW20, Blaskic T. 8790-92"
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 697:
"697. The village of Gacice lies in the municipality of Vitez approximately two kilometres from the town of Vitez 1601 . After the attack on the village on 20 April 1993, a group of 180 women, children , elderly men and Muslim civilians were assembled in a few of the remaining houses 1602 under the control of the HVO soldiers 1603 . [ ]"
"1601. Witness Hrustic, PT p. 4791.
1602. Witness Hrustic, PT pp. 4815-4817.
1603. Witness Hrustic, PT pp. 4818-4819; witness ZZ, PT pp. 10845-10846."
[B. Evidentiary comment:]
P.3.2. Evidence of restriction to a closed village or city.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 640:
"640. The Appeals Chamber concludes that a reasonable trier of fact could have found that cordoning off Rotilj, preventing civilians from leaving the village, when the civilians were not detained in the village for their own safety, constitute imprisonment and unlawful confinement of civilians, Counts 21 and 22 (Kordic)."
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 475:
"475. On 21 May 1992, the Crisis Staff issued a "Decision on a general ban on leaving the territory of the Serbian Municipality of Bosanski Samac". The Decision stated: "No individual is to leave the territory of the Serbian Municipality of Bosanski Samac without a special permit."966 [ ]"
"966. Exhibit P90, Decision on the General Ban on leaving the Territory of the Serbian Municipality of Bosanski Samac, 21 May 1992."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 792 793:
"792. Rotilj, as has already been noted, is a village in the Kiseljak municipality , lying a few kilometres to the west of Kiseljak town itself. It is situated in a valley, a natural bowl or basin, in the hills, with one small road leading in and out.1682 According to the Prosecution , after the HVO took the village on 18-19 April 1993 (destroying Muslim houses and killing seven people)1683 they turned part of it into a detention camp for Muslims from the other villages in the municipality , together with the surviving Muslims from Rotilj itself. Once detained, the Muslims were surrounded and could not leave, being controlled by HVO soldiers and snipers stationed on the surrounding hillsides.1684"
"1682. Major Baggesen, T. 7548-51.
1683. As reported to the ECMM, Report, Ex. Z818.
1684. Major Baggesen, ibid.; Col. Morsink, T. 8035-38, giving evidence of their visit to the village on 27 April 1993. Their report is Ex. Z818."
"793. Muslims were still detained in Rotilj in September 1993. On 28 September a Canbat officer, Captain Liebert, visited Rotilj and found 600 people there who had been displaced from all over the municipality: they were living in about 20 houses and conditions were poor and over-crowded.1685 One witness who was in Rotilj from September 1993 to September 1994 said that the Muslims were not allowed out of the village and that there was no heating in it: the HVO took men out for trench-digging every day.1686 [ ] There was a barrier at the edge of the village but no fence: it was not necessary as the village was surrounded by hills controlled by the HVO and there was nowhere to go.1687 [ ]"
"1685. Witness TW20, Blaskic T. 8790-92.
1686. Witness TW25, Blaskic T. 6653-59.
1687. Witness Y, T. 11018-19."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 691:
"691. In addition, from April 1993 until January 1994 1574, Muslims from Kiseljak municipality were held captive in the village of Rotilj . The Trial Chamber recalls that the detainees were prevented from leaving the village, especially because they were being watched by snipers positioned in the hills around the village. The Muslims were therefore kept in an HVO detention camp."
"1574. In fact, up until March, witness TT, PT pp. 9334-9335."
[B. Evidentiary comment:]
3.2. The women had been forcibly made pregnant.
P.4. Medical evidence of pregnancy.
A. Legal source/authority and evidence:
Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1992/S-1/1 of 14 August 1992, U.N. Doc. No. E/CN.4/1993/50, at p. 64:
"Through interviews with physicians and a review of medical records from six major medical centres in Zagreb, Sarajevo, Zenica and Belgrade, the team of experts was able to identify 119 pregnancies resulting from rape during 1992."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1992/S-1/1 of 14 August 1992, E/CN.4/1993/50, at p. 69:
"All of the above-described rapes of Croatian and Muslim women occurred in Bosnia and Herzegovina between May and December 1992, near Prijedor, Banja Luka, Kljuc, Mahale and Sarajevo. [ ] Five were pregnant as a result of rape. Two had given birth to children. One child has been adopted and the other has been rejected by the mother and is being kept in the hospital."
[B. Evidentiary comment:]
P.5. Not sufficient: Evidence of a failed attempt to impregnate.
A. Evidentiary comment:
During Preparatory Commission proceedings from March to August 1998, a distinction was drawn between the term "forced pregnancy" and the term "forcible impregnation." One scholar has suggested that use of the term "forcible impregnation" would have permitted prosecution for the inchoate offense of attempting to forcibly impregnate, while the term "forced pregnancy" restricts prosecution to cases where pregnancy actually occurred. Similarly, "forced pregnancy" could only be prosecuted where a victim is capable of conceiving: "Assaults on victims who cannot bear children due to age, physical incapacity, or sex cannot be prosecuted as forced pregnancy because the victims cannot become pregnant."(Boon, K., "Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy and Consent,"32 Columbia Human Rights Law Review 625, at 660 (2001)). Where a woman is killed immediately after a rape, intent to commit forced pregnancy cannot be proven (K. Askin, War Crimes Against Women (1997), p. 276). However, "forcible impregnation" also fails to capture all of the elements of forced pregnancyit refers only to forcibly making a woman pregnant as opposed to keeping her pregnant. (C. Steains, "Negotiation on the Term Forced Pregnancy", in R. Lee (ed.) The International Criminal Court: the making of the Rome StatuteIssues, Negotiations, Results (1999), p. 366).
The restriction of prosecutions to situations where pregnancy actually occurred also means that certain types of sexual assault cannot be prosecuted as forced pregnancy. For example, penetration by objects incapable of causing pregnancy, and oral and anal penetration, could be prosecuted as rape under article 7 (1) (g)-1 but not as forced pregnancy.
3.2.2. Evidence that one or more women were forcibly made pregnant.
A. Evidentiary comment:
According to commentators, the term "forcibly" in the first element of forced pregnancy means "done by or involving force", which does not necessarily require the use of violence. (see M. Boot, "(f) Forced Pregnancy", in O. Triffterer (ed.), Commentary on the Rome Statute (1999), article 7, margin No. 109; Boon, K., "Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy and Consent,"32 Columbia Human Rights Law Review 625, at 661 (2001)). The definition of "forcibly" is instead similar to that used in the second element of article 7 (1) (g)-1, the crime against humanity of rape. "Forcibly" therefore includes "force" and "threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power". This definition parallels footnote 12, which defines the term "forcibly" as used in article 7 (1) (d), crime against humanity of deportation or forcible transfer of population. As there is not yet any forced pregnancy jurisprudence, some excerpts from means of proof for the "forcible" element of rape are included below.
P.6. Evidence of the forcible nature of the initial act leading to pregnancy.
A. Evidentiary comment:
Though vaginal rape may prove to be a common method of causing a forced pregnancy, vaginal penetration with sexual organs is not necessary for a finding of forced pregnancy. Forced penetration could apply to any situation or technology by which a woman is made pregnant against her will. "The phrase forcibly made pregnant only requires the prosecution to prove that the woman was physically pregnant and that she came to this state through forcible means." (Boon, K., "Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy and Consent,"32 Columbia Human Rights Law Review 625, at 671-72 (2001)). Accordingly, the means of proof for forcible pregnancy are not only dependent on future ICC jurisprudence, but on scientific advances in reproductive technology.
P.6.1. Evidence of vaginal rape.
A. Legal source/authority and evidence:
Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 280:
"280. [ ]Witness DD stated that he learned only later that the women had been raped, when he saw them again and they told him that the Interahamwe had made them their wives, raped them and impregnated them. [ ]"
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 87, 174:
"87. The attacks then moved on to Witness A: Accused B had warned Dugi, another soldier, not to hit her as he had "other methods" for women,118 methods which he then put to use. Accused B hit Witness A119 and forced her to perform oral sex on him. He raped her vaginally and anally, and made her lick his penis clean.120"
"118. T. 413; Prosecution Exhibit P3, p. 26; Defence Exhibit D13, p. 7.
119. Defence Exhibit D13, p. 7; Defence Exhibit 8, p. 6.
120. T. 415 and T. 350; Defence Exhibit D13, p. 6; Defence Exhibit D8, p. 6."
"174. This act is the penetration of the vagina, the anus or mouth by the penis, or of the vagina or anus by other object. In this context, it includes penetration, however slight, of the vulva, anus or oral cavity, by the penis and sexual penetration of the vulva or anus is not limited to the penis.200"
"200. Ibid., [Prosecutions Pre-trial Brief] p. 15."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 947, 962:
"947. Ms. Antic further testified that she was raped a second time by Hazim Delic. On this occasion, she said that she was ordered by Mr. Delic to go to Building B with Ms. Cecez, to take a bath. She stated that she complied with this order, and was then taken to the same room where she had been raped previously. She testified that Delic started to rape her anally causing her great pain and her anus to bleed. She stated that he turned her on to her back and raped her vaginally."
"962. The Trial Chamber finds that acts of vaginal penetration by the penis and anal penetration by the penis, under circumstances that were undoubtedly coercive, constitute rape. These rapes were intentionally committed by Hazim Delic who was an official of the Bosnian authorities running the prison-camp."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 424, 430:
"424. 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."
"430. Witness NN confirmed on examination that the man who raped her penetrated her vagina with his penis, saying he did it in an "atrocious" manner, mocking and taunting them. She said her sister was raped by the other man at the same time, near her, so that they could each see what was happening to the other. Afterwards, she said she begged for death."
Final report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992), U.N. Doc. No. S/1994/674, at paras. 248, 250:
"248. [ ] One woman was detained by her neighbour (who was a soldier) near her village for six months. She was raped almost daily by three or four soldiers. She was told that she would give birth to a chetnik boy who would kill Muslims when he grew up. They repeatedly said their President had ordered them to do this. [ ]"
"250. [ ] (b) Many reports state that the perpetrators said they were ordered to rape, or that the aim was to ensure that the victims and their families would never want to return to the area. Perpetrators tell female victims that they will bear children of the perpetrators ethnicity, that they must become pregnant, and then hold them in custody until it is too late for the victims to get an abortion. [ ]"
[B. Evidentiary comment:]
P.6.2. Evidence of forcible artificial insemination.
Boon, K., "Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy and Consent,"32 Columbia Human Rights Law Review 625, at 661 (2001):
"[ ] Medical advances suggest that women could now be forcibly made pregnant by artificial insemination, an act that could fall within the scope of the forced pregnancy provision. [ ]"
[B. Evidentiary comment:]
P.7. Evidence of forcing a woman to remain pregnant by limiting her reproductive choices.
P.7.1. Evidence of preventing contraceptive use.
A. Legal source/authority and evidence:
Boon, K., "Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy and Consent,"32 Columbia Human Rights Law Review 625, at 661 (2001):
"Furthermore, acts that make a woman pregnant as well as acts that prevent her from controlling her reproductive cycles will be relevant to the concept of force. If a woman is not permitted to control her reproductive cycles by way of being "forcibly" prevented from using contraceptives, for example, the acts could constitute evidence of a forced pregnancy."
[B. Evidentiary comment:]
P.7.2. Evidence of preventing abortion.
Final report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992), U.N. Doc. No. S/1994/674, at paras. 248, 250:
"248. [ ] Some captors also state that they are trying to impregnate the women. Pregnant women are detained until it is too late for them to obtain an abortion. One woman was detained by her neighbour (who was a soldier) near her village for six months. She was raped almost daily by three or four soldiers. She was told that she would give birth to a chetnik boy who would kill Muslims when he grew up. They repeatedly said their President had ordered them to do this. [ ]"
"250. [ ] (b) Many reports state that the perpetrators said they were ordered to rape, or that the aim was to ensure that the victims and their families would never want to return to the area. Perpetrators tell female victims that they will bear children of the perpetrators ethnicity, that they must become pregnant, and then hold them in custody until it is too late for the victims to get an abortion. [ ]"
Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1992/S-1/1 of 14 August 1992, at p. 69:
"[ ] Another ethnic Croat woman was detained in a special house where she was raped by several men every night for approximately two months. Every night she could hear screams and cries of other women. She reported that, while raping her, the men were shouting you will have a Serbian child. She also reported being told that, if she were pregnant, she would be forced to stay there until six months of pregnancy."
[B. Evidentiary comment:]
P.8. Evidence of the general use of force in making a woman remain pregnant.
P.8.1. Evidence of the use of physical force.
A. Legal source/authority and evidence:
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, para. 833:
"833. According to Witness J, Musema then raped one of the women, a Tutsi woman named Immaculée Mukankusi who was 25 years old and eight months pregnant. He hit her with the butt of his gun, she fell down, he dropped his trousers and underwear to the knees and jumped on her. The witness said Immaculee was struggling and she was crying because he was saying that he was going to kill her. Musema was on top of her for about four minutes. After raping her, he put on his clothes, got up and killed her, stabbing her with the knife attached to his gun between the neck and the shoulder."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 424, 437:
"424. Witness OO, a young Tutsi woman, testified that she and her family sought refuge at the bureau communal in April 1994 and encountered many other Tutsi refugees there, on the road outside the compound. While she was there, she said, some Interahamwe arrived and started killing people with machetes. She and two other girls tried to flee but were stopped by the Interahamwe who went back and told the Accused that they were taking the girls away to "sleep with" them. Witness OO told the Chamber that standing five meters away from the Accused, she heard him say in reply, "take them". She said she was then separated from the other girls and taken to a field by one Interahamwe called Antoine. When she refused to sit down, he pushed her to the ground and put his "sex" into hers, clarifying on examination that he penetrated her vagina with his penis. When she started to cry, she said he warned her that if she cried or shouted, others might come and kill her."
"437. [ ] According to Witness PP, who then went to Kinihira herself, the three women were forced by the Interahamwe to undress and told to walk, run and perform exercises "so that they could display the thighs of Tutsi women." All this took place, she said, in front of approximately two hundred people. After this, she said the women were raped. She described in particular detail the rape of Alexia by Interahamwe who threw her to the ground and climbed on top of her saying "Now, lets see what the vagina of a Tutsi woman feels like." According to Witness PP, Alexia gave the Interahamwe named Pierre her Bible before he raped her and told him, "Take this Bible because it's our memory, because you do not know what you're doing." Then one person held her neck, others took her by the shoulders and others held her thighs apart as numerous Interahamwe continued to rape her - Bongo after Pierre, and Habarurena after Bongo."
[B. Evidentiary comment:]
P.8.2. Evidence of punishment.
A. Legal source/authority and evidence
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 495:
"495. Furthermore, it is difficult to envisage circumstances in which rape, by, or at the instigation of a public official, or with the consent or acquiescence of an official, could be considered as occurring for a purpose that does not, in some way, involve punishment, coercion, discrimination or intimidation. In the view of this Trial Chamber this is inherent in situations of armed conflict."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 430, 437:
"430. Witness NN, a Tutsi woman and the younger sister of JJ, described being raped along with another sister by two men in the courtyard of their home, just after it was destroyed by their Hutu neighbours and her brother and father had been killed. Witness NN said one of the men told her that the girls had been spared so that they could be raped. She said her mother begged the men, who were armed with bludgeons and machetes, to kill her daughters rather than rape them in front of her, and the man replied that the "principle was to make them suffer" and the girls were then raped. Witness NN confirmed on examination that the man who raped her penetrated her vagina with his penis, saying he did it in an "atrocious" manner, mocking and taunting them. She said her sister was raped by the other man at the same time, near her, so that they could each see what was happening to the other. Afterwards, she said she begged for death."
"437. According to Witness PP, who then went to Kinihira herself, the three women were forced by the Interahamwe to undress and told to walk, run and perform exercises "so that they could display the thighs of Tutsi women." All this took place, she said, in front of approximately two hundred people. After this, she said the women were raped. She described in particular detail the rape of Alexia by Interahamwe who threw her to the ground and climbed on top of her saying "Now, lets see what the vagina of a Tutsi woman feels like." According to Witness PP, Alexia gave the Interahamwe named Pierre her Bible before he raped her and told him, "Take this Bible because it's our memory, because you do not know what you're doing." Then one person held her neck, others took her by the shoulders and others held her thighs apart as numerous Interahamwe continued to rape her - Bongo after Pierre, and Habarurena after Bongo."
[B. Evidentiary comment:]
P.8.3. P.8.3. Evidence of a fear of violence or duress.
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:
"130. The Appeals Chamber notes, for example, that in some domestic jurisdictions, neither the use of a weapon nor the physical overpowering of a victim is necessary to demonstrate force. A threat to retaliate "in the future against the victim or any other person" is a sufficient indicium of force so long as "there is a reasonable possibility that the perpetrator will execute the threat".161 While it is true that a focus on one aspect gives a different shading to the offence, it is worth observing that the circumstances giving rise to the instant appeal and that prevail in most cases charged as either war crimes or crimes against humanity will be almost universally coercive. That is to say, true consent will not be possible."
"161. California Penal Code 1999, Title 9, Section 261(a)(6). The section also lists, among the circumstances transforming an act of sexual intercourse into rape, "where it is accomplished against a persons will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another" (Section 261(a)(2)). Consent is defined as "positive cooperation in act or attitude pursuant to an exercise of free will" (Section 261.6)."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 645, 667, 711, 761:
"645. The Trial Chamber, however, accepts the testimony of D.B. who testified that, prior to the intercourse, she had been threatened by "Gaga" that he would kill her if she did not satisfy the desires of his commander, the accused Dragoljub Kunarac. The Trial Chamber accepts D.B.s evidence that she only initiated sexual intercourse with Kunarac because she was afraid of being killed by "Gaga" if she did not do so."
"667. The Trial Chamber further accepts FWS-50s testimony about her being raped "in a beast-like manner" by an old Montenegrin soldier that night who wielded a knife and threatened to draw a cross on her back and to baptise her."
"711. The three soldiers then took her to the banks of the Cehotina River in Foča near Velečevo, where the accused tried to obtain information or a confession from FWS-183 concerning her alleged sending of messages to the Muslim forces and information about the whereabouts of her valuables while he threatened to kill her and her son. By his attempt to intimidate her, Dragoljub Kunarac also showed his hatred for Muslims, his intention to intimidate her, and his intention to discriminate against Muslims in general, and FWS-183 in particular. All three soldiers raped FWS-183. In the course of the rapes, Kunarac forced her to touch his penis and to look at him. He cursed her. The other two soldiers watched from the car, laughing. While she was raped by Dragoljub Kunarac, FWS-183 heard him tell the other soldiers to wait for their turn. Subsequently, she was raped vaginally and orally by the other soldiers. The rapes resulted in severe mental and physical pain for FWS-183."
"761. The Trial Chamber is satisfied that it has been proven beyond reasonable doubt that, while in Radomir Kovačs apartment, FWS-87 was raped by both Kovač and Jagos Kostic. Kovač reserved FWS-87 for himself and raped her almost every night he spent in the apartment. Jagos Kostic constantly raped A.S., and he took advantage of Kovačs absence to rape FWS-87 too. He threatened her that if she reported this to Radomir Kovač he would kill her. Kovač knew at all times that the girls did not consent to the sexual intercourse. Jagos Kostic could rape A.S. because she was held by Kovač in his apartment. Kova~ therefore also substantially assisted Jagos Kostic in raping A.S., by allowing Jagos Kostic to stay in his apartment and to rape A.S. there."
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 82, 174:
"82. The accused continued to interrogate Witness A, who was forced to remain naked in front of approximately 40 soldiers. Accused B drew a knife over the body and thigh of Witness A, threatening, inter alia, to cut out her private parts if she did not co-operate.96 As this was happening, it is alleged that the accused continued to interrogate her about her children, her alleged visits to the Moslem part of Vitez and why certain Croats had helped her when she was Moslem.97 The witness testified that the accused also issued threats against her children.98 She spoke of a direct relationship between his dissatisfaction with her answers and the assaults inflicted upon her by Accused B.99 She stated: "it was one at the same time the interrogation and the ill-treatment and the abuse".100
"96. T. 406; Defence Exhibit D13, p. 6.
97. T. 406-407; Prosecution Exhibit P3, p. 25; Defence Exhibit D13, p. 6.
98. T. 408-409.
99. T. 416.
100. T. 455."
"174. The Trial Chamber notes the unchallenged submission of the Prosecution in its Pre-trial Brief that rape is a forcible act: this means that the act is "accomplished by force or threats of force against the victim or a third person, such threats being express or implied and must place the victim in reasonable fear that he, she or a third person will be subjected to violence, detention, duress or psychological oppression" ".199
"199. Prosecution's Pre-trial Brief, p. 15."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 960- 961:
"960. The second rape occurred when Hazim Delic came to Building A and ordered Ms. Antic to go to Building B to wash herself. After doing so, she was led to the same room in which she was first raped, where Delic, who had a pistol and a rifle and was in uniform, was sitting on a desk. She started crying once again out of fear. He ordered her to take her clothes off. She kept telling him that she was sick and asking him not to touch her. Out of fear that he would kill her she complied with his orders. Mr. Delic told her to get on the bed and to turn around and kneel. After doing so he penetrated her anus with his penis while she screamed from pain. He was unable to penetrate her fully and she started to bleed. Mr. Delic then turned her around and penetrated her vagina with his penis and ejaculated on her lower abdomen. After the rape Ms. Antic continued crying, felt very ill and experienced bleeding from her anus, which she treated with a compress, and was provided with tranquillisers."
"961. The third rape occurred in Building A. It was daylight when Hazim Delic came in, armed with hand grenades, a pistol and rifle. He threatened her and she again said that she was a sick woman and asked him not to touch her. He ordered her to undress and get on the bed. She did so under pressure and threat. Mr. Delic then pulled his trousers down to his boots and raped her by penetrating her vagina with his penis. He then ejaculated on her abdomen."
[B. Evidentiary comment:]
P.8.4. Evidence of psychological oppression using discrimination.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 560:
"560. The Trial Chamber further finds that the rape and other forms of sexual violence were committed only against the non-Serb detainees in the camp and that they were committed solely against women, making the crimes discriminatory on multiple levels."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 646, 711, 816:
"646. The Trial Chamber rejects the evidence of the accused Dragoljub Kunarac that he was not aware of the fact that D.B. only initiated sexual intercourse with him for reasons of fear for her life. The Trial Chamber regards it as highly improbable that the accused Kunarac could realistically have been "confused" by the behaviour of D.B., given the general context of the existing war-time situation and the specifically delicate situation of the Muslim girls detained in Partizan or elsewhere in the Foca region during that time. As to whether or not he was aware of the threat by "Gaga" against D.B., the Trial Chambers finds it irrelevant as to whether or not Kunarac heard "Gaga" repeat this threat against D.B. when he walked into the room, as D.B. testified. The Trial Chamber is satisfied that D.B. did not freely consent to any sexual intercourse with Kunarac. She was in captivity and in fear for her life after the threats uttered by "Gaga"."
"711. The three soldiers then took her to the banks of the Cehotina river in Foca near Velecevo, where the accused tried to obtain information or a confession from FWS-183 concerning her alleged sending of messages to the Muslim forces and information about the whereabouts of her valuables while he threatened to kill her and her son. By his attempt to intimidate her, Dragoljub Kunarac also showed his hatred for Muslims, his intention to intimidate her, and his intention to discriminate against Muslims in general, and FWS-183 in particular. All three soldiers raped FWS-183. In the course of the rapes, Kunarac forced her to touch his penis and to look at him. He cursed her. The other two soldiers watched from the car, laughing. While she was raped by Dragoljub Kunarac, FWS-183 heard him tell the other soldiers to wait for their turn. Subsequently, she was raped vaginally and orally by the other soldiers. The rapes resulted in severe mental and physical pain for FWS-183."
"816. The Trial Chamber has no doubt that it was at least a predominant purpose, as the accused obviously intended to discriminate against the group of which his victim was a member, ie the Muslims, and against his victim in particular."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 495:
"495. The Trial Chamber considers the rape of any person to be a despicable act which strikes at the very core of human dignity and physical integrity. The condemnation and punishment of rape becomes all the more urgent where it is committed by, or at the instigation of, a public official, or with the consent or acquiescence of such an official. Rape causes severe pain and suffering, both physical and psychological. The psychological suffering of persons upon whom rape is inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long lasting."
[B. Evidentiary comment:]
P.8.5. Evidence of psychological oppression using intimidation.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, paras. 551, 554-555:
"551. Witness K testified about an occasion when one of the cleaning ladies in the camp, Vinka Andzic, came to fetch her, saying that Radic needed her. Radic had previously attempted to coerce her into having sex with him by saying that her children would not be killed if she would agree to having sexual intercourse with him.896 She was led upstairs to the conference room where Radic was waiting. Witness K noticed a foam mattress on the floor,897 and stated that "ShCe told me that my children would not be harmed . . . .Then he attacked me, he assaulted me, and he raped me."898 After Radic left, she said that she stayed in the room for a while to try to stop her bleeding, which was due not only to her menstruating but also to the forced penetration of her vagina."899
"896. Witness K, T. 4983-4984, 5056.
897. Witness K, T. 4983-4984.
898. Witness K, T. 4984-4985, 4987-4988.
899. Witness K, T. 5058."
"554. Witness AT testified that Radic called her out of her room several times during her 23 days spent in Omarska camp. Like other women, she was taken to a room at the end of the corridor, where a sponge mattress was on the floor. The witness described how, on one such occasion, Radic told her to take her clothes off and forced her to have sexual intercourse with him.904 She emphasized: "I defended myself, and I asked him why he was doing that. But I had to, under pressure from him, to take my clothes off and lie down on the foam mattress."905"
"555. The Defense pointed out that the witness acknowledged, during cross-examination, that Radic had helped her by bringing her food and water and by moving her husband from the white house to the glass house.906 However, the Trial Chamber does not find that this fact discredits the testimony of the witness in any way. Indeed, the evidence suggests that he regularly attempted to bribe or coerce victims to "agree" to sexual intercourse in exchange for favors. The Trial Chamber recalls previous holdings by the Tribunal, as well as Rule 96, dealing with evidence in cases of sexual assault, which states that a status of detention will normally vitiate consent in such circumstances.907"
"904. Witness AT, T. 6095-6098, 6155.
905. Witness AT, T. 6157-6158.
906. Witness AT, T. 6152-6155.
907. See Celebici Trial Chamber Judgement, para. 495; Furundzija Trial Chamber Judgement, para. 271; Kunarac Trial Chamber Judgement, para. 464. Rule 96 of the Rules of Procedure and Evidence provides that in cases of sexual assault, consent shall not be allowed as a defense if "the victim has been subjected to or threated [sic] with or has had reason to fear violence, duress, detention or psychological oppression"."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 574-575, 583, 711:
"574. The women were kept in various detention centres where they had to live in intolerably unhygienic conditions, where they were mistreated in many ways including, for many of them, being raped repeatedly. Serb soldiers or policemen would come to these detention centres, select one or more women, take them out and rape them. Many women and girls, including 16 of the Prosecution witnesses, were raped in that way. Some of these women were taken out of these detention centres to privately owned apartments and houses where they had to cook, clean and serve the residents, who were Serb soldiers. They were also subjected to sexual assaults."
"575. In particular, the Trial Chamber finds that the Muslim civilians held at Kalinovik School, Foca High School and Partizan Sports Hall were kept in unhygienic conditions and without hot water. They were provided with insufficient food. Their freedom of movement was curtailed; they were not allowed to go to any other territory or to go back to their houses. Most of their houses were burnt down or ransacked. They were guarded and lived in an atmosphere of intimidation. The Trial Chamber is satisfied that Kalinovik School, Foca High School and Partizan Sports Hall served as detention centres at the relevant time."
"583. Dragoljub Kunarac also knew that Muslim women were specifically targeted, as he himself took several of them to his men and raped some of them himself. In the course of one of these rapes, he expressed with verbal and physical aggression his view that the rapes against the Muslim women were one of the many ways in which the Serbs could assert their superiority and victory over the Muslims. While raping FWS-183, the accused Dragoljub Kunarac told her that she should enjoy being "fucked by a Serb". After he and another soldier had finished, Dragoljub Kunarac laughed at her and added that she would now carry a Serb baby and would not know who the father would be. In addition, the accused Dragoljub Kunarac removed many Muslim girls from various detention centres and kept some of them for various periods of time for him or his soldiers to rape."
"711. The three soldiers then took her to the banks of the Cehotina river in Foca near Velecevo, where the accused tried to obtain information or a confession from FWS-183 concerning her alleged sending of messages to the Muslim forces and information about the whereabouts of her valuables while he threatened to kill her and her son. By his attempt to intimidate her, Dragoljub Kunarac also showed his hatred for Muslims, his intention to intimidate her, and his intention to discriminate against Muslims in general, and FWS-183 in particular. All three soldiers raped FWS-183. In the course of the rapes, Kunarac forced her to touch his penis and to look at him. He cursed her. The other two soldiers watched from the car, laughing. While she was raped by Dragoljub Kunarac, FWS-183 heard him tell the other soldiers to wait for their turn. Subsequently, she was raped vaginally and orally by the other soldiers. The rapes resulted in severe mental and physical pain for FWS-183."
[B. Evidentiary comment:]
P.8.6. Evidence of psychological oppression using humiliation.
A. Legal source/authority and evidence:
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 127-129, 272:
"127. The interrogation of Witness A continued in the pantry, once more before an audience of soldiers. Whilst naked but covered by a small blanket, she was interrogated by the accused. She was subjected to rape, sexual assaults, and cruel, inhuman and degrading treatment by Accused B. Witness D was also interrogated by the accused and subjected to serious physical assaults by Accused B. He was made to watch rape and sexual assault perpetrated upon a woman whom he knew, in order to force him to admit allegations made against her. In this regard, both witnesses were humiliated."
"128. Accused B beat Witness D and repeatedly raped Witness A. The accused was present in the room as he carried on his interrogations. When not in the room, he was present in the near vicinity, just outside an open door and he knew that crimes including rape were being committed. In fact, the acts by Accused B were performed in pursuance of the accused's interrogation."
"129. It is clear that in the pantry, both Witness A and Witness D were subjected to severe physical and mental suffering and they were also publicly humiliated."
"272. The Trial Chamber is satisfied that all the elements of rape were met. Again, the rapes and sexual assaults were committed publicly; members of the Jokers were watching and milling around the open door of the pantry. They laughed at what was going on. The Trial Chamber finds that Witness A suffered severe physical and mental pain, along with public humiliation, at the hands of Accused B in what amounted to outrages upon her personal dignity and sexual integrity."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998,, paras. 430, 437:
"430. Witness NN confirmed on examination that the man who raped her penetrated her vagina with his penis, saying he did it in an "atrocious" manner, mocking and taunting them. She said her sister was raped by the other man at the same time, near her, so that they could each see what was happening to the other. Afterwards, she said she begged for death."
"437. According to Witness PP, who then went to Kinihira herself, the three women were forced by the Interahamwe to undress and told to walk, run and perform exercises "so that they could display the thighs of Tutsi women." All this took place, she said, in front of approximately two hundred people. After this, she said the women were raped. She described in particular detail the rape of Alexia by Interahamwe who threw her to the ground and climbed on top of her saying "Now, lets see what the vagina of a Tutsi woman feels like."
[B. Evidentiary comment:]
P.8.7. Evidence of taking advantage of a coercive environment.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, paras. 548, 561:
"548. Radić grossly abused his position and took advantage of the vulnerability of the detainees. On one occasion he called Witness J into his office and told her that he could help her if she had sexual intercourse with him."
"561. In considering whether severe pain and suffering was also inflicted upon the other victims of sexual violence, the Trial Chamber takes into consideration the extraordinary vulnerability of the victims and the fact that they were held imprisoned in a facility in which violence against detainees was the rule, not the exception. The detainees knew that Radic held a position of authority in the camp, that he could roam the camp at will, and order their presence before him at any time. The women also knew or suspected that other women were being raped or otherwise subjected to sexual violence in the camp. The fear was pervasive and the threat was always real that they could be subjected to sexual violence at the whim of Radic."
Prosecutor v. 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. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 495:
"495. Furthermore, it is difficult to envisage circumstances in which rape, by, or at the instigation of a public official, or with the consent or acquiescence of an official, could be considered as occurring for a purpose that does not, in some way, involve punishment, coercion, discrimination or intimidation. In the view of this Trial Chamber this is inherent in situations of armed conflict."
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 688:
"688. The Tribunal notes in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal."
[B. Evidentiary comment:]
P.9. Not required: Evidence that the victim did not consent.
A. Evidentiary comment:
Several scholars have suggested that the elements of force in rape and forced pregnancy differ in that forced pregnancy generally does not require proving of lack of consent. Any form of "coercion or force or threat of force against the victim or a third person"217 negates consent and any form of captivity negates consent.218 This principle applies with equal force to the crime of forced pregnancy." (M. Boot, "(f) Forced Pregnancy", in O. Triffterer (ed.), Commentary on the Rome Statute (1999), article 7, margin No. 109).
"216. The Oxford Concise Dictionary, supra note 138, 459-460.
217. Prosecutor v. Furundzija, supra note 98, para. 185.
218. Ibid., para. 271."
Unlike rape, forced pregnancy does not require a separate inquiry into whether or not a woman consented to the act that made her pregnant. The elements of forced pregnancy provide for the objective act and the perpetrators subjective mental state, but they do not consider the victims intent or agency. [ ] Furthermore, given the fact that a woman must be confined, by definition, for an act to constitute forced pregnancy, it is only in rare situations that consent could be relevant due to the effect of that confinement on her capacity to make genuine and uncoerced choices.209"
"209. Legal doctrines on research experiments on prisoners are relevant to this point. The presumption that prisoners are less able to choose and are more vulnerable than free populations has led to detailed regulations on when prisoners may participate in medical experiments. See Garnett, supra note 129, at 478."
(Boon, K., "Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy and Consent,"32 Columbia Human Rights Law Review 625, at 671-72 (2001)).
Since consent also cannot be raised as a defense to the crime against humanity of sexual slavery, art. 7(1)(g)-2, reference to the means of proof for sexual slavery may be helpful.
3.3. The perpetrator intended to affect the ethnic composition of any population; or.
3.3.1. Evidence establishing the ethnic composition of a population.
A. Evidentiary comment:
The requirement of intent to affect the ethnic composition of a population represents a compromise between Catholic and Arab countries who wanted a high-threshold "ethnic cleansing" type of intent, and the other group of countries that found such a requirement to be too restrictive, given that forced pregnancy could occur in a variety of different situations (C. Steains, "Negotiation on the Term Forced Pregnancy", in R. Lee (ed.) The International Criminal Court: the making of the Rome StatuteIssues, Negotiations, Results (1999), p. 368).
The specific mental element of intent "to affect the ethnic composition of any population" is in some ways similar to a common element of the crime of genocide contained in article 6 of the Rome Statute, intent "to destroy, in whole or in part, that national, ethnical, racial or religious group" (see M. Boot, "(f) Forced Pregnancy", in O. Triffterer (ed.), Commentary on the Rome Statute (1999), article 7, margin No. 110). The specific intent required for forced pregnancy, however, is simultaneously broader and narrower than that required for genocide. The intent for forced pregnancy is broader than that for genocide because the perpetrator need not intend to destroy the ethnic group in whole or in partit is sufficient to only attempt to affect the ethnic composition of the population. However, the intent for forced pregnancy is also narrower than that for genocide because only the intent to affect the ethnic composition of a groupand not the national, racial, or religious composition of the groupis sufficient.
The following means of proof for establishing the existence of an ethnic group are excerpted from those for the common elements of the crime of genocide (article 6 of the Rome Statute). The differences in intent between forced pregnancy and genocide should be taken into account when relying on these means of proof. Jurisprudence of the ICC regarding forced pregnancy will hopefully clarify the specific intent requirement.
A. Legal source/authority and evidence:
Final report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992), U.N. Doc. No. S/1994/674, at paras. 248, 250:
"248. [ ] Some captors also state that they are trying to impregnate the women. Pregnant women are detained until it is too late for them to obtain an abortion. One woman was detained by her neighbour (who was a soldier) near her village for six months. She was raped almost daily by three or four soldiers. She was told that she would give birth to a chetnik boy who would kill Muslims when he grew up. They repeatedly said their President had ordered them to do this. [ ]"
"250. [ ] (b) Many reports state that the perpetrators said they were ordered to rape, or that the aim was to ensure that the victims and their families would never want to return to the area. Perpetrators tell female victims that they will bear children of the perpetrators ethnicity, that they must become pregnant, and then hold them in custody until it is too late for the victims to get an abortion. Victims are threatened that if they ever tell anyone, or anyone discovers what has happened, the perpetrators will hunt them down and kill them."
Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1992/S-1/1 of 14 August 1992, at p. 69:
A. Legal source/authority and evidence:
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 506:
"506. [ ] In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mothers group."
A. Legal source/authority and evidence:
Final report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992), U.N. Doc. No. S/1994/674, at para. 248:
"248. [ ] Some captors also state that they are trying to impregnate the women. Pregnant women are detained until it is too late for them to obtain an abortion. One woman was detained by her neighbour (who was a soldier) near her village for six months. She was raped almost daily by three or four soldiers. She was told that she would give birth to a chetnik boy who would kill Muslims when he grew up. They repeatedly said their President had ordered them to do this. [ ]"
3.4. The perpetrator intended to carry out grave violations of international law.
A. Evidentiary comment:
The phrase "grave violations of international law" is used only in the forced pregnancy provisions of the Rome Statute, and thus causes some evidentiary difficulties. It may be helpful to refer to the means of proof for violations "of the fundamental rules of international law", contained in article 7 (1) (e), crime against humanity of imprisonment or other severe deprivation of liberty. However, "grave violations of international law" may prove to be a far broader category than violations "of the fundamental rules of international law". One commentator noted:
"19. See Art. 8(2)(b)(xxii) and 2(c)(vi) of the Rome Statute, supra note 1."
(M. Politi, "Elements of Crimes", in A. Cassese, P. Gaeta, and J. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), p. 456). One possible grave violation of international law that a perpetrator could intend to commit is described below.
P.13. Evidence that the perpetrator intended to permanently stigmatize a victim.
