6. c [Mental element for Element 4] Circumstance of force, threat of force or coercion: The perpetrator was aware that the invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.

P.21. Evidence inferred from a circumstance.

6. c [Mental element for Element 4] Circumstance of force, threat of force or coercion: The perpetrator was aware that the invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.

P.21. Evidence inferred from a circumstance.

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. 300, 586, 646-647, 653, 701:

“300. […] When she returned, girls and women from Partizan had been brought into the house and were being raped. Among them were FWS-87 and D.B., possibly also FWS-50.⁸³² She herself was raped by a man called “Vojvoda”. During that time, the witness recalled that “Zaga” was in the main room looking at weapons. She was not quite certain when she first saw him in the house on that day, but she thought it was during the morning and around noontime.⁸³³ She had the impression that he must have been aware of what was going on in the house.⁸³⁴”

“832. T 3346.

833. T 3348-3350 and T 3414.

834. T 3350.”

“586. The accused Radomir Kovac, too, was fully aware of the attack against the Muslim villagers and aware of the fact that his acts were part of the attack. […] The Trial Chamber notes that two of the women who were later kept in Kovac’s apartment, FWS-87 and FWS-75, had actually been captured in this village that very day. […]”

“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”.”

“647. On the evidence accepted, the Trial Chamber finds that the Prosecution has proved beyond reasonable doubt that the accused Dragoljub Kunarac took D.B. out of Partizan and drover her to Ulica Osmana Dikica no 16 together with “Gaga”. The Trial Chamber accepts that D.B. was raped there first by “Gaga” and two other men and then forced to have sexual intercourse with Dragoljub Kunarac because she had been threatened with death by “Gaga”. The Trial Chamber is satisfied beyond reasonable doubt that Dragoljub Kunarac had sexual intercourse with D.B. in the full knowledge that she did not freely consent. The Trial Chamber also accepts that the accused Kunarac was fully aware of the rapes inflicted upon D.B. by the other soldiers.”

“653. The Trial Chamber is therefore satisfied that the allegations made in paragraph 5.3 of the Indictment have been proved beyond reasonable doubt, namely that Dragoljub Kunarac took FWS-75 and D.B. to Ulica Osmana Dikica no 16 for them to be raped. On this occasion, Kunarac personally had sexual intercourse with D.B. in the knowledge that she did not consent and aided and abetted the gang-rape of FWS-75 at the hands of several of his soldiers by taking her to the house in the knowledge that she would be raped there and that she did not consent to the sexual intercourse.”

“701. The Trial Chamber is also satisfied beyond reasonable doubt that, sometime in either September or October 1992, Dragoljub Kunarac went to “Karaman’s house” and took FWS-87 to a room on the upper floor of the house where he forced her to have sexual intercourse in the knowledge that she did not consent.”

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 962:

“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.”

Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, at para. 79, U.N. Doc. No. E/CN.4/Sub.2/1998/13 (1998):

“79. […] Holding commanders, superiors and other authorities to a “knew or should have known” standard is appropriate for assessing liability at this level, and where acts of sexual slavery or sexual violence are occurring on a widespread or notorious basis, such defendants will be presumed to have knowledge of the acts and of their international prohibition. […]”