Table of contents:
P.22. Evidence inferred from an utterance, a document, or a deed.
P.22.1. Evidence that the perpetrator discussed the occurrence of forced labour.
P.23. Evidence inferred from a circumstance.
P.23.1. Evidence that the perpetrator forced detainees to work.
P.23.2. Evidence that the perpetrator was aware he was humiliating detainees.
P.23.3. Evidence of the existence of a policy of forced labour.
P.23.4. Evidence that the perpetrator intended to exploit someone for monetary gain.
Element:
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 350, 411:
350. Enslavement under Article 5 of the Tribunals Statute has been defined by the Tribunal as the exercise of any or all of the powers attaching to the right of ownership over a person.949 The actus reus of enslavement is the exercise of those powers, and the mens rea is the intentional exercise of such powers.950
949. Kunarac Trial Judgment, par 539.
950. Kunarac Trial Judgment, par 540
116. After a survey of various sources, the Trial Chamber concluded that, at the time relevant to the indictment, enslavement as a crime against humanity in customary international law consisted of the exercise of any or all of the powers attaching to the right of ownership over a person.143 It found that the actus reus of the violation is the exercise of any or all of the powers attaching to the right of ownership over a person, and the mens rea of the violation consists in the intentional exercise of such powers.144
143. Trial Judgement, para 539.
144. Ibid., para 540.
B. Evidentiary comment:
In the Kunarac Appeals Judgment, para. 122, the Appeals Chamber held that the required mens rea consists of the intentional exercise of power attaching to the right or ownership. It is not required to prove that the accused intended to detain the victims under constant control for a prolonged period of time in order to use them for sexual acts. However, Kunarac was decided as an enslavement case since sexual slavery is not listed as a separate crime in the ICTY statute. The Rome Statute differentiates between the crimes of enslavement and sexual slavery and requires acts of a sexual nature as the second material element of sexual slavery. Therefore, under Article 30 of the Rome Statute requiring the commission of material elements with intent and knowledge, the mental elements will likely be more specific than in ICTY jurisprudence. However, in the event that the ICC follows the Kunarac Appeals Judgment jurisprudence, means of proof relating solely to slavery as opposed to sexual slavery have been included in this MPMD.
P.22. Evidence inferred from an utterance, a document, or a deed.
P.22.1. Evidence that the perpetrator discussed the occurrence of forced labour.
P.23. Evidence inferred from a circumstance.
P.23.1. Evidence that the perpetrator forced detainees to work.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 358:
358. To establish the allegation that detainees were forced to work and that the labour detainees performed constituted a form of enslavement, the Prosecution must establish that the Accused (or persons for whose actions he is criminally responsible) forced the detainees to work, that he (or they) exercised any or all of the powers attaching to the right of ownership over them, and that he (or they) exercised those powers intentionally.964
964. Kunarac Trial Judgment, par 542.
Bert R?ling and C. F. Ruter, eds, The Tokyo Judgement: The International Military Tribunal for the Far East (1977), p. 417:
[ ] Itagaki, as Commander of the Korean Army, informed War Minister Tojo by a message dated 4 September 1942, that he intended to force all prisoners of war, including officers and warrant officers under his jurisdiction to work; as he put it: Not one prisoner of war must be left to time in idleness[ ]
[B. Evidentiary comment:]
P.23.2. Evidence that the perpetrator was aware he was humiliating detainees.
A. Legal source/authority and evidence:
781. [ ] For all practical purposes, he possessed them, owned them and had complete control over their fate, and he treated them as his property. The Trial Chamber is also satisfied that Kovac exercised the above powers over the girls intentionally. The Trial Chamber is satisfied that many of the acts caused serious humiliation, of which the accused was aware.
[B. Evidentiary comment:]
P.23.3. Evidence of the existence of a policy of forced labour.
A. Legal source/authority and evidence:
United States of America et al. v. Hermann Wilhelm G?ring et al., Judgement (International Military Tribunal), 30 September-1 October 1946, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Proceedings, Vol. 23 (1948), p. 489:
The general policy underlying the mobilization of slave labor was stated by Sauckel on 20 April 1942. He said: All prisoners of war from the territories of the West, as well as the East, actually in Germany, must be completely incorporated into the Germany armament and nutrition industries Consequently it is an immediate necessity to use the human reserves of the conquered Soviet territory to the fullest extent. Should we not succeed in obtaining the necessary amount of labor on a voluntary basis, we must immediately institute conscription or forced labor The complete employment of all prisoners of war, as well as the use of a gigantic number of new foreign civilian workers, men and women, has become an indisputable necessity for the solution of the mobilization of the labor program in this war.
Final Report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, at para. 76, U.N. Doc. No. E/CN.4/Sub.2/1998/13 (1998):
76. [ ] The law of command responsibility relates to acts of rape and sexual violence as it does to all other serious violations of international criminal law. For example, with respect to violations committed by warring parties in the former Yugoslavia, a United Nations Commission of Experts that was charged with investigating violations of humanitarian law in the region specifically concluded that:
The practices of ethnic cleansing, sexual assault and rape have been carried out by some of the parties so systematically that they strongly appear to be the product of a policy. The consistent failure to prevent the commission of such crimes and the consistent failure to prosecute and punish the perpetrators of these crimes, clearly evidences the existence of a policy by omission. The consequence of this conclusion is that command responsibility can be established.63
63. Ibid., para. 313.
[B. Evidentiary comment:]
P.23.4. Evidence that the perpetrator intended to exploit someone for monetary gain.
A. Legal source/authority and evidence:
Annual Report of the Inter-American Commission on Human Rights 2001, OEA/Ser./L/V/II.114 doc. 5 rev.) 16 April 2001, para. 126:
126. [ ] Unlike migrant smuggling or guiding operations, which, as explained, entail a mutually agreed commercial transaction, for the Rapporteurship human trafficking implies elements of violence, coercion, and deceit with the intention to exploit people (usually women and children) for monetary gain.[ ][79]
79. Kyle and Dale, Id. pp. 32-4.
[B. Evidentiary comment:]
