(i)
of the vagina or anus of the victim
a.
by the penis of the perpetrator or any other object used by the
perpetrator; or
b.
of the mouth of the victim by the penis of the perpetrator;
(ii) by coercion or force or threat of force against the victim or a third person.”
The ICTY Trial Chamber in the Kunarac case found the element of force defined in Furundzija too
narrow and that it did not include other factors that negate or vitiate victims’ ability to consent or
simply that the act was without consent.218 It therefore added the element ‘the act was without
consent’ to the Furundzija definition. In addition, it laid down an important principle that
wherever the person subjected to the act has not freely agreed to it or is otherwise not a voluntary
participant, it constitutes violation of sexual autonomy which must be penalised.
From a woman’s perspective, the reference to the violation of sexual autonomy is a milestone not
only because the Chamber determined that rape constitutes a violation of sexual autonomy but
because of the very fact of recognition of the existence of sexual autonomy for women and that its
infringement is a serious violation.
The definition of rape in the ICC Statute (see further below), informed by the developments at the
ad-hoc tribunals, is the current standard and is the inspiration for reforms of rape laws in many
countries.
iv)
Advancing the Definition and Jurisprudence on Sexual Slavery
The Kunarac case at the ICTY also laid down jurisprudence on enslavement that other tribunals
used for trying sexual slavery. The judgment states that powers of ownership over another person
could be exercised in different ways, some of which are “control of someone’s movement, control
of physical environment, psychological control, measures taken to prevent or deter escape, force,
threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and
abuse, control of sexuality and forced labour”.219
The SCSL Trial Chamber in the RUF case elaborated on the definition of sexual slavery. It clarified
that the actus reus includes a slavery element (exercise of any or all of the powers attaching to the
right of ownership) and a sexual element (that the enslavement involved sexual acts). 220
Specifically, the Trial Chamber noted that the list of ways in which power of ownership is exercised
is not exhaustive, and went on to adopt the above stated list of indicia of enslavement from the
ICTY’s Kunarac judgment.
Additionally, the Trial Chamber in the RUF case defined “similar deprivation of liberty” to include
situations in which victims were not “physically confined, but were otherwise unable to leave as
they would have nowhere else to go and feared for their lives”.221 The Trial Chamber also stated
that “[t]he duration of the enslavement is not an element of the crime, although it may be relevant
in determining the quality of the relationship”.222 In an earlier case, known as the AFRC case, the
Trial Chamber had similarly found that the powers of ownership listed in the first element are nonexhaustive, consent or free will of the victim is absent under conditions of enslavement, and
ownership may cover situations where individuals are not physically confined but may remain in the
control of their captors because they have nowhere else to go and fear for their lives. 223 The AFRC
218
The Prosecutor v. Kunarac and others, ICTY, IT-96-23 & IT-96-23/1-T, 22 February 2001, ¶ 440, 441.
219
Ibid., ¶ 196.
220
The Prosecutor v. Sesay, Kallon & Gbao, Case No. SCSL-04-15-T, Judgment (Special Court for Sierra Leone, Trial Chamber
I, Mar. 2, 2009), available at http://www.sc- sl.org/LinkClick.aspx?fileticket=D5HojR8FZS4%3d&tabid=215 (hereinafter the
RUF TJ), ¶ 159.
221
Ibid., ¶ 161.
222
Ibid., ¶ 163.
223
The Prosecutor v. Brima, Kamara & Kanu, Case No. SCSL-04-16-T, (Special Court for Sierra Leone, Trial Chamber II, June
20, 2007), available at: http://www.scsl.org/LinkClick.aspx?fileticket=EqikfVSpLWM=&tabid=106 [hereinafter AFRC TJ]; ¶
709.
60 6. INTERNATIONAL HUMANITARIAN AND CRIMINAL LAW | REDRESS
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