CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Art. 8 War crimes » Art. 8(2)(e) War crimes » Art. 8(2)(e)(vi)-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.

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.

P.38.10. Evidence of changing detention conditions.

A. Legal source/authority and evidence:

Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 555:

⁹⁰⁶Witness AT, T. 6152-6155.

[B. Evidentiary comment:]

P.39. Evidence inferred from a circumstance.

P.39.1. Evidence of regular violence against detainees.

Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, paras. 98, 561:

²³⁶ Witness J, T. 4774-4775; Witness F, T. 5382-5383; Witness B, T. 2338, 2430; Nedzija Fazlic, T. 5102; Sifeta Susic, T. 3018-3019.

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 574:

Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 89, 271:

Prosecutor v. Duko Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997 paras. 165, 175:

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 132:

132. For the most part, the Appellants in this case were convicted of raping women held in de facto military headquarters, detention centres and apartments maintained as soldiers residences. As the most egregious aspect of the conditions, the victims were considered the legitimate sexual prey of their captors. Typically, the women were raped by more than one perpetrator and with a regularity that is nearly inconceivable. (Those who initially sought help or resisted were treated to an extra level of brutality). Such detentions amount to circumstances that were so coercive as to negate any possibility of consent.

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 68, 210, 750, 780:

68. [] During her time in the apartment, the girls were frequently threatened with murder; they were locked up and had no contact whatsoever with the outside world.²⁰⁵ []

²⁰⁵ T 1720 and T 1814-1815.

210. A.S. stayed in Radomir Kovačs apartment for about a month or two. [] Jagos Kostic would rape her anytime he wanted, orally and vaginally, and she had no choice but to comply with his demands; he would also sometimes beat her and once threatened to cut her throat.⁶²¹ []

⁶²¹T 2018.

750. The Trial Chamber is satisfied that the girls could not and did not leave the apartment without one of the men accompanying them. When the men were away, they would be locked inside the apartment with no way to get out. Only when the men were there would the door of the apartment be left open. Notwithstanding the fact that the door may have been open while the men were there, the Trial Chamber is satisfied that the girls were also psychologically unable to leave, as they would have had nowhere to go had they attempted to flee. They were also aware of the risks involved if they were re-captured.

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 747, 750, 780:

[B. Evidentiary comment:]

P.39.4. Evidence of constant fear.

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. 747:

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

[B. Evidentiary comment:]