CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Art. 8 War crimes » Art. 8(2)(b) War crimes » Art. 8(2)(b)(xxii)-6 Sexual violence » 6.c. [Mental element for Element 3] [Circumstance of force, threat of force or coercion]: The perpetrator was aware that he or she would commit an act of a sexual nature or would cause a person or persons to engage in an act of a sexual nature by force, o

6.c. [Mental element for Element 3] [Circumstance of force, threat of force or coercion]: The perpetrator was aware that he or she would commit an act of a sexual nature or would cause a person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, or by taking advantage of a coercive environment or such person's or persons' incapacity to give genuine consent.

P.38. Evidence inferred from a utterance, a document or a deed.

P.38.1. Evidence of using physical force on a person or persons.

P.38.2. Evidence of threatening one or more persons using a weapon.

P.38.3. Evidence of pointing a gun or rifle.

P.38.4. Evidence of threatening to cut off private parts using a knife.

P.38.5. Evidence of threatening verbally to kill one or more persons.

P.38.6. Evidence of threatening to use force against a third person.

P.38.7. Evidence of "bribing" one or more persons to "agree" to sexual intercourse.

P.38.8. Evidence of promising to spare family members.

P.38.9. Evidence of providing food and water.

P.38.10. Evidence of changing detention conditions.

P.39. Evidence inferred from a circumstance.

P.39.1. Evidence of regular violence against detainees.

P.39.2. Evidence of detention in privately owned apartments.

P.39.3. Evidence of psychological oppression amounting to de facto detention.

P.39.4. Evidence of constant fear.

P.39.5. Evidence of constant threat of being subject to sexual violence.

P.39.6. Evidence of victims being subjected to the authority of the perpetrator.

P.39.7. Evidence of the involvement of local authorities.

P.39.8. Evidence of an armed conflict.

P.39.9. Evidence of a military presence.

P.39.10. Evidence of a military presence in a refugee camp.

P.39.11. Evidence of physical incapacity.

P.39.12. Evidence of mental incapacity.

P.39.13. Evidence of induced incapacity.

P.39.14. Evidence of an element of surprise inducing incapacity.

P.39.15. Evidence of an element of misrepresentation inducing incapacity.

P.39.16. Evidence of incapacity caused by intoxication.

P.39.17. Evidence of age-related incapacity to consent.

Element:

P.38. Evidence inferred from a utterance, a document or a deed.

P.38.1. Evidence of using physical force on a person or persons.

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. 210:

"⁶²¹T 2018."

Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, para. 833:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 424, 437:

[B. Evidentiary comment:]

P.38.2. Evidence of threatening one or more persons using a weapon.

P.38.3. Evidence of pointing a gun or rifle.

A. Legal source/authority and evidence:

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 958:

[B. Evidentiary comment:]

P.38.4. 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:

"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. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 960:

[B. Evidentiary comment:]

P.38.5. Evidence of threatening verbally to kill one or more persons.

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. 68, 645, 761:

"²⁰⁵. T 1720 and T 1814-1815."

Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, para. 833:

[B. Evidentiary comment:]

P.38.6. Evidence of threatening to use force against a third person.

A. Legal source/authority and evidence:

Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 82, 174:

"⁹⁶ T. 406; Defence Exhibit D13, p. 6.
⁹⁷T. 406-407; Prosecution Exhibit P3, p. 25; Defence Exhibit D13, p. 6.
⁹⁸T. 408-409.
⁹⁹T. 416.
¹⁰⁰T. 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."

[B. Evidentiary comment:]

P.38.7. Evidence of "bribing" one or more persons to "agree" to sexual intercourse.

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. 542:

[B. Evidentiary comment:]

P.38.8. 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:

"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.38.9. Evidence of providing food and water.