Women's Caucus Recommendations,Elements Annex

Recommendations and Commentary
for the Elements Annex

Submitted to the July 26 �August 13 1999
Preparatory Commission for the International Criminal Court

PRIORITY CONCERNS in the Elements Annex

Statement of Gender Integration. Consistent with the principle against gender discrimination in art. 21(3), the Elements Annex should contain a statement that recognizes that crimes of sexual violence may also constitute other grave crimes against the person, such as genocide, torture, slavery, and inhuman treatment.
Relation to armed conflict. The element defining the connection to armed conflict should be stated so as not to risk the exclusion of sexual violence offenses that occur as a result of armed conflict.
Elements of sexual violence crimes. The elements of rape and other sexual violence crimes should reflect international law, including the jurisprudence of the ad hoc tribunals, and be consistent with the mandate of non-discrimination on the basis of gender contained in Article 21(3) of the ICC Statute.
Coercive Circumstances. The compulsion element in sexual violence crimes should be expressed as �circumstances which are coercive;� and it should be explicit that proof of such circumstances nullifies any appearance of consent and renders evidence thereof irrelevant.
The scope of coercive circumstances must embrace both direct violence by the perpetrator as well as the taking advantage of circumstances which are coercive. Both the elements and the rules regarding sexual evidence should express these as � subjecting, threatening, or causing a person to fear violence, duress, detention or psychological oppression, abuse of power, or the taking advantage of other coercive circumstances, or causing the reasonable belief that another might be so subjected.�

Introduction

This paper addresses the Women�s Caucus� concerns with respect to the delineation of elements of the sexual violence crimes as well as more general matters which could inadvertently affect in a negative way the ability of the ICC to prosecute crimes that are properly within its jurisdiction.

The Women�s Caucus welcomes the draft submitted by Costa Rica, Hungary and Switzerland (hereinafter the Costa Rican/Hungarian/Swiss Draft) and believes that it provides an excellent starting point for the negotiations. At the same time, there are a number of respects in which this draft does not take into account the evolving jurisprudence or the realities of sexual violence crimes. Our recommendations to the Costa Rican/Hungarian/Swiss Draft ( reproduced in pertinent part below with additions in CAPITALS and omissions in brackets), and the commentary explaining our proposed revisions follow:¹

I. General Concerns Regarding War Crimes of Sexual Violence

1. THE NEED FOR AN EXPLICIT STATEMENT THAT SEXUAL VIOLENCE ALSO CONSTITUTES OTHER CRIMES AGAINST THE PERSON UNDER ARTICLES 5 -8.

The Women�s Caucus considers it of utmost priority that a statement be included in a general preamble or introductory comment to the Elements Annex recognizing that crimes of sexual violence may also constitute other grave crimes against the person, such as genocide, torture, inhuman treatment under articles 5-8 of the Rome Statute.

The need for an explicit recognition of this principle cannot be overstated. It is essential to implement the general principle against gender discrimination contained in article 21(3) of the Rome Statute. Historically, and even to this day, crimes of sexual violence have been trivialized, marginalized, or ignored by those responsible for ensuring justice. To treat sexual violence as entirely separate from the traditionally recognized grave crimes and serious violations in armed conflict is a discriminatory undervaluation of the seriousness of sexual offenses which was explicitly rejected by the December PrepCom when it chose to recognize such violence as �grave breaches� and �serious violations� instead of �degrading treatment.�

The explicit direction we seek is consistent with the Rome Statute, as reflected particularly in the negotiation of art. 8.2(b)(xxii) and 8.2(e)(vi). The language �also constituting a grave breach/serious violation� was intended both to classify rape and other forms of sexual violence as such and to recognize that sexual violence can also constitute the other named crimes and should be charged in the alternative. In consultation with the Women�s Caucus, the PrepCom replaced the earlier proposed language �also amount to� � which could be interpreted as simply a threshold of gravity for other forms of sexual violence � with the words �also constituting�� in order clearly to incorporate the principle that matters of gender must be integrated into mainstream human rights and humanitarian law concepts and work.² To ensure non-discriminatory implementation of the statute, prosecutors and judges need a direct and simple direction in the Elements Annex.

The gender integrative jurisprudence of the ad hoc tribunals supports this principle and should guide its application by the ICC.³ But it will not suffice to leave it unstated here. The ad hoc Tribunal prosecutors had to integrate sexual violence into other war crimes against the person because their statutes did not contain explicit sexual violence crimes in a number of instances. Important as it is that sexual violence crimes are now listed explicitly as war crimes and crimes against humanity in the Rome Statute, there remains the danger that this will encourage prosecutors to once again ignore sexual violence when charging the crimes of torture, mutilation, inhumane acts, etc. If, for example, prosecutors do not charge rape as both rape and torture, there will be no opportunity for jurisprudence on this question and sexual violence will disappear from the traditional crimes. Such a failure to integrate crimes of sexual violence would constitute a gender-based discrimination that can be easily avoided by an explicit statement to guide both prosecutors and judges.

There is a great deal of support among the delegates for this basic gender integration principle and concern is focused on where it should go given the controversy about specific commentaries. The rolling text of commentary for genocide, produced by the February PrepCom (PCNICC/1999/WGEC/RT.3) para. 3, contains a statement of this principle as applied to crime of genocide, which requires only minor revision.⁴ But, the inclusion of any commentary to the individual crimes is controversial and the rolling text for war crimes under art. 8.2(a) (PCNICC/1999/WGEC/RT.2) is not accompanied by commentary and so contains no statement of this principle. At this point, we urge following the approach taken with regard to article 6 (genocide) and including the necessary statement in the Annex with respect to articles 7 and 8, at least as a �space saver.�

The bottom line is that this principle must be included somewhere in the Elements Annex. It is most appropriate as part of a general preamble or introduction to the Elements Annex which might contain other general principles such as the guiding but not mandatory effect of the Annex; the significance of ICTY/ICTR jurisprudence etc. If there is no general commentary or chapeau, then it must be mentioned in a chapeau or comment to each of the core crimes. Until it is adopted as a general matter, however, it is fundamental to us that it be included in respect of each of the core crimes.

2. THE NEXUS TO ARMED CONFLICT MUST NOT EXCLUDE SEXUAL VIOLENCE WHEN IT OCCURS APART FROM MILITARY OPERATIONS.

Alternative 1: The conduct took place in the context of OR [OMIT: and] was associated with an [international] [internal] armed conflict.
Alternative 2: The conduct took place in the context of and was associated with OR OCCURRED AS A CONSEQUENCE OF an [international] [internal] armed conflict.

It is essential both to state a link between the criminal conduct and the existence of an international or internal and, at the same time, to state it in such a way as not to exclude crimes of sexual violence. The Women�s Caucus is concerned that the requirement �was associated with an . . .armed conflict� could exclude the commission of rape where it is not used as an instrument of military conquest or where it is not committed in the course of or as part of the conduct of war. Women are often raped as the spoils or booty of war. Rape commonly occurs after the battle is over, when soldiers are socializing and letting off steam. The concept of �associated with� could exclude this �off-duty� type violation which may also be widespread or systematic and is unquestionably a violation of humanitarian law as well as the ICC statute. For this reason, we suggest either that the PrepCom review this formulation, adopted in the February rolling text, and that association with armed conflict not be treated as a necessary but rather as an alternative element or that the words �occurred as a consequence of . . .armed conflict� be added to make clear that it can be part of the aftermath of war or of taking advantage of the situation of war.

II. Elements of War Crimes of Sexual and Gender Violence

Article 8(2)(b)(xxii)
�... Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2(f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;.
Article 8.2(e)(vi):
�... Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2(f), enforced sterilization, or any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;.

The following represent the Women�s Caucus suggestions regarding the elements of the explicit sexual violence crimes in war codified in art. 8.2(b)(xxii) and 8.2(e)(vi). In developing these suggestions, we have utilized the Swiss/Hungarian/Costa Rican/Hungarian/Swiss draft as a starting point. It is an excellent step forward, and, at the same time, there are a number of respects in which this draft does not take into account the evolving jurisprudence with regard to, or the realities of, sexual violence crimes. Without repeating the linkage to armed conflict clause discussed in Point I.2 above, this section sets forth the Costa Rican/Hungarian/Swiss Text with our additions in CAPITAL LETTERS and deletions in [brackets]:

RAPE

The perpetrator committed A PHYSICAL INVASION OF A SEXUAL NATURE INCLUDING BUT NOT LIMITED TO [OMIT: an act of sexual] penetration, however slight,

(a) UNDER CIRCUMSTANCES WHICH ARE COERCIVE, WHICH INCLUDES BUT IS NOT LIMITED TO SITUATIONS WHERE THE VICTIM IS SUBJECTED TO, THREATENED WITH, OR REASONABLY FEARED, VIOLENCE, DURESS, DETENTION OR PSYCHOLOGICAL OPPRESSION, ABUSE OF POWER, OR OTHER COERCIVE CIRCUMSTANCES, OR THE VICTIM REASONABLY BELIEVED THAT IF THE VICTIM DID NOT SUBMIT, ANOTHER MIGHT BE SO SUBJECTED; OR
(b) IF COERCIVE CIRCUMSTANCES ARE NOT PROVEN, WITHOUT THE VICTIM�S EXPRESS CONSENT.

[OMIT: of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or of the mouth of the victim by the penis of the perpetrator;
The Perpetrator committed this act by coercion or force or threat of force against the victim or a third person.]

Commentary:

1. The element of physical invasion. Our proposal is based first and foremost on the definition adopted by the ICTR in the Akayesu judgement, and the ICTY in the Delalic judgement. Each defined rape as: �The physical invasion of a sexual nature committed against a person under circumstances which are coercive.� The second phrase included above, �including but not limited to penetration, however slight� is drawn from both the ICTY judgment in Furundzija as well as the Report of the Special Rapporteur on Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict.

The proposed definition reflects the growing understanding of the crime of rape as encompassing a broader range of acts sexual violence. The ICTR explains this in the Akayesu judgment:

The Tribunal considers that rape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts. The Tribunal also notes the cultural sensitivities involved in public discussion of intimate matters and recalls the painful reluctance and inability of witnesses to disclose graphic anatomical details of other forms of sexual violence they endured. The United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment does not catalogue specific acts in its definition of torture, focusing rather on the conceptual framework of state-sanctioned violence. The Tribunal finds this approach more useful in the context of international law. (Akayesu at para. 687).

The Akayesu definition thus moves away from the traditional ideas of rape where the dominant concern was with the penetration of an orifice of the victim�s body by a man�s penis. The use of the term �invasion� reflects a more comprehensive definition of the crime, encompassing the full range of sexual assaults, which may be equally devastating from the victim�s perspective. It eliminates the traditional distinction between penetration by a penis or other objects or body parts and/or oral penetration at the same time as it avoids the danger of excluding less publicized forms of rape, such as using body parts other than the penis or invading reproductive organs directly. It also enables witnesses to establish rape without having to use words that may be culturally forbidden. Finally, the proposed definition makes clear that penetration is only one form of invasion and may be slight, in keeping with the fundamental principle of protecting human dignity and avoiding highly technical and irrelevant distinctions and with evolving national laws in many parts of the world. (Furundzija at paras. 183-184).⁵
For all these reasons, we urge that the concept of �physical invasion of a sexual nature� is the more appropriate framework for rape and that it be added to the proposed definition in the Costa Rican/Hungarian/Swiss draft. We agree with the Costa Rican/Hungarian/Swiss draft that it is not necessary to define �sexual nature.� Leaving it open allows the Court to take account of its different meanings in different cultures.
2. The element of coercive circumstances. The compulsion element of the crimes of sexual violence must reflect the full scope of coercive, forceful and threatening conduct visited upon, and conditions experienced by victims of sexual violence, both direct and indirect, in the extreme settings likely to come before the Court. The Elements Annex should contain a non-inclusive list of coercive circumstances consistent with international law. This list should be consistent with the rule regulating evidence in cases of sexual violence as suggested in fn 6 to Rule 6.5 of the Siracusa Draft which modified slightly Rule 101 of the Australian Draft presented to the February PrepCom. The list proposed above incorporates Rule 6.5(a).
The Trial Chamber at the ICTR addressed this issue in its Akayesu judgement:

[T]he tribunal notes in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of the Interahamwe among refugee Tutsi women at the bureau command. (Akayesu at para. 688)

The Annex should also contain a clarifying statement that the terms �enforced� �forced� or �forcible� in the statute should be read to encompass the full range of coercive circumstances defined in the Annex. Para. 1 of the �Suggested comments to genocide� seeks to do this in relation to art. 6(e) and is the basis for the more generally applicable statement of this principle.⁶

3. No consent in coercive circumstances. The Annex must also preclude a showing of consent when coercive circumstances are proven. This is consistent with Rule 6.5(a) negotiated in Siracusa as well as with the recognition in humanitarian law that circumstances of coercion vitiate claims of consent. Here, we recommend doing this by defining separately the crime of rape without express consent.

4. Rape without express consent. Consent of the victim is an issue only where coercive circumstances are not shown. In the circumstances of armed conflict, which heightens both the vulnerability of women to and the obligation to protect them from sexual abuse, it is appropriate to require the Court to find that the victim expressly consented. Given the concern of humanitarian law not only to punish rape but also to take measures to prevent it and protect women from rape and other sexual assaults,⁷ it is appropriate that a defendant claiming that the sexual invasion was consensual be able show that the victim through word or action affirmatively welcomed engagement in sexual activity.

Too often, it is claimed that acquiescence (which can result from fear or sense of futility) constitutes consent. Thus even gang rape scenarios are claimed to be consensual, particularly in the heterosexual context, where the woman does not object as each subsequent man takes his turn. Without a requirement of express consent, the international legal obligation to prevent rape and hold perpetrators accountable can be easily circumvented and the victim, be subjected to an unnecessary intimidating and traumatizing examination in an effort to show that acquiescence constitutes consent.

SEXUAL SLAVERY

The perpetrator [delete: treated a person as chattel by exercising] EXERCISED any or all of the powers attaching to the right of ownership, including sexual access through rape or other forms of sexual violence.

Commentary:

The Caucus welcomes the Costa Rican/Hungarian/Swiss proposal with one small but important revision. To retain consistency with the Rome statute and international law, the Women�s Caucus recommends adoption of the definition proposed by the Special Rapporteur on Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict⁸ and the deletion of the reference to �chattel� in the Costa Rican/Hungarian/Swiss draft.

While �chattel� is often used to describe slave-like conditions, its precise meaning makes it inappropriate as an element. To be reduced to chattel generally refers to a form of movable property (as opposed to property in land) and is an example of exercising all the powers of ownership. If the Elements Annex were to add the term �chattel� as a required element, it would be inconsistent with the statute which, in art. 7.2(c), already defines slavery as the exercise of �any or all of the powers attaching to the right of ownership over a person� and thus understands slavery to exist even where a person is not completely reduced to chattel.

The statutory definition is also in accordance with the defintions of enslavement in international law and jurisprudence. The statute properly reiterates the defintion in article 1 of the Slavery Convention of 1926. This definition is consistent with the recognition, as in the FOCA indictment confirmed by the ICTY, that slavery need not involve a complete deprivation of liberty.⁹ Sexual slavery can be institutionalized as with the "comfort women" organized by the Japanese Army during World War II or the rape camps in the former Yugoslavia. Or, it can be carried out on a more individualized basis and with less total control. Sexual slavery embraces situations, such as in Rwanda, where women were kidnapped or �chose� this condition as a means of survival; where women were physically confined to the home, or "free" to leave the situation, albeit at the risk of being killed if she left the protected "marriage" status. Sexual slavery should also embrace situations where the military occupies a town and demands sexual service from women, while permitting them to remain in their own homes. The Special Rapporteur includes these situations in the concept of sexual slavery:

In addition, this report emphasizes that practices such as the detention of women in "rape camps" or "comfort stations"; forced temporary "marriages" to soldiers; and other practices involving the treatment of women as chattel, are both in fact and in law forms of slavery and, as such, violations of the peremptory norm prohibiting slavery. (E/CN.4/Sub.2/1998/13 para. 8)

While the Special Rapporteur refers to �treatment of women as chattel� as a way of describing a slavery-like condition, she properly does not include the reference to chattel in the definition of sexual slavery, as this would set an inappropriately high standard inconsistent with international law. Rather her definition¹⁰ �the same as proposed by the Caucus above--properly recognizes that coerced sexual access is a power attaching to the right of ownership. In sum, the statute already contains an adequate and appropriate definition and should not be modified.

ENFORCED PROSTITUTION

The perpetrator [OMIT: imposed conditions of control over] CAUSED a person [OMIT: and coerced person] to engage in sexual activity UNDER CIRCUMSTANCES WHICH ARE COERCIVE.

Commentary:

Our proposal eliminates the redundant language of �control� and uses �under circumstances which are coercive� to be consistent with the appropriate articulation of the coercion element of rape and other forms of sexual violence.

FORCED PREGNANCY, (as defined in Article 7, paragraph 2(f))

We agree with the proposal in the Costa Rican/Hungarian/Swiss draft that simply reiterates the statutory definition in article 7.2 (f) as stated repeatedly in the Rome statute. see arts. 7.2(f). 8.2(b)(xxii) and 8.2(e)(vi). There has already been extensive negotiation of the elements of forced pregrnany. The Women�s Caucus finds the negotiated definition inadequate in a number of very significant ways. At the same time, we respect the groundrule not to renegotiate the statute and hope others will do likewise.

ENFORCED STERILIZATION

The perpetrator [OMIT: coerced] DEPRIVED A PERSON OF THEIR REPRODUCTIVE CAPACITY [OMIT: to be sterilized] WITHOUT THAT PERSON�S INFORMED, VOLUNTARY AND EXPRESS CONSENT.

Commentary:

The crime of enforced sterilization encompasses the performance, without express consent, of a medical procedure or experiment which can render a person sterile, the provision of sterilizing drugs, the conditioning of liberty or the means of survival on acquiescing to some form of sterilization, the use of violence directed against a person�s reproductive organs, or of chemical or other means of warfare among whose foreseeable consequence is the sterilization of the affected individual or group.
The proposed changes more clearly recognize the Court�s jurisdiction to prosecute methods of coercive sterilization other than through a medical sterlization procedure. They also recognize, consistent with recent abusive sterilization campaigns, that inadquate or false information (many women having had tubal sterilization have been led to believe that their tubes will untie after a period of years) nullify consent every bit as much as coercive circumstances.

ANY OTHER FORM OF SEXUAL VIOLENCE ALSO CONSTITUTING A GRAVE BREACH OF THE GENEVA CONVENTIONS

The perpetrator committed a physical or psychological act of a sexual nature upon a person OR CAUSED A PERSON TO ENGAGE IN CONDUCT OF A SEXUAL NATURE under circumstances that are coercive OR WITHOUT THAT PERSON�S EXPRESS CONSENT.

Commentary:

The Women�s Caucus welcomes the definition in the Costa Rican/Hungarian/Swiss draft. It is based on the Akayesu definition¹¹ and explicitly encompasses its jurisprudence by recognizing that other sexual violence can take both physical and psychological forms. The category of �any other form of sexual violence� was explicitly intended to include all forms of sexual violence that would constitute grave breaches in international armed conflict or serious violations in internal armed conflict. It was not intended to require that that violence involve physical violence or invasion.

Significantly, the ad hoc Tribunals have already recognized that non-invasive sexual violence constitutes the grave breach of inhuman treatment or the serious violation of outrages against personal dignity when women are coerced to parade nude or provide sexual entertainment to soldiers. The Trial Chamber in Akayesu stated:

[S]exual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact. The incident described by Witness KK in which the Accused ordered the Interahamwe to undress a student and force her to do gymnastics naked in the public courtyard of the bureau communal, in front of a crowd, constitutes other forms of sexual violence. . . Other forms of sexual violence falls within the scope of �other inhumane acts� set forth in Article 3(I) of the Tribunal�s Statute, �outrages upon personal dignity,� set forth in Article 4(e) of the Statute, and �serious bodily or mental harm,� set forth in Article 2(2)(b) of the Statute.�¹²

The proposed definition is also consistent with the IRCR Commentary on Art. 75 of the First Additional Protocol to the Geneva Conventions which identifies �outrages upon personal dignity, in particular humiliating and degrading ttreatment, enforced prostitution and any form of indecent assault� as a crime and states:

This refers to acts which, without directly causing harm to the integrity and physical and mental wellbeing of persons, are aimed at humiliating and ridiculing them,or even forcing them to perform degrading acts.�

The Caucus suggests addition of the words �or caused a person to enage in conduct of a sexual nature� to the Costa Rican/Hungarian/Swiss draft because of the awkwardness of using the word �act� to describe conduct coercing a woman to provide sexual entertainment or engage in sexual activity that does not involve a physical touching or invasion. The definition should also parallel that of rape in identifying the compulsion element as either coercive circumstances or lack of express consent.

¹ Other documents referred to are �Genocide� (PCNICC/1999/WGEC/RT.1); �War Crimes� (PCNICC/1999/WGEC/RT.2); �Suggested Comments Relating to the Crime of Genocide� (PCNICC/1999/WGEC/RT.3); �Proposal submitted by the United States: Draft elements of crimes� (PCNICC/1999/DP.4).
² The principle of gender-integration or gender mainstreaming was first stated in the Declaration and Programme of Action of the World Conference on Human Rights at Vienna. Since l993, it has been repeated and made applicable to all aspects of the UN�s concerns. Most specifically, in l997 and in subsequent years, the Human Rights Commission has called upon �States participating in the drafting of the statute of the International Criminal Court to give full consideration to integrating a gender perspective.�
³ As the ICTR stated in the Akayesu judgement:

Like torture, rape is used for usch purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or other persons acting in an official capacity.� The Prosecutor v. Jean Paul Akayesu, ICTR-96-4-T, para. 682.

In the ICTY, the same understanding is incorporated in confirmed indictments, see, e.g. FOCA, and in Prosecutor v. Delalic et al, IT-96-21-T, paras. 495 et seq. The recognition in the Akayesu judgment that rape and sexual violence constituted instruments of genocide is another historic and profound example of the same principle. Paras. 5050-509, 516.
⁴ The suggested comment provides:

3. It is recognized that rape and sexual violence may constitute genocide in the same way as any other act, provided that the criteria of the crime of genocide are met.

When we return to that text, the Caucus will suggest that it be modified to say �other forms sexual violence within the statute� instead of �rape and other forms of sexual violence� so as not to imply that other forms, previously stated such as sexual slavery, enforced prostitution, forced pregnancy are not included.
⁵ Both Furundzija and the Special Rapporteur indicate the desirability of this less mechanical approach. In explaining the appropriateness of treating oral penetration as rape, the Furundzija Chamber quotes Akayesu to the effect that �the central elements of the crime of rape cannot be captured in a mechanical description of objects or body parts,� further stating that �it is more more useful to focus �on the conceptual framework of State sanctioned violence.�� (para. 176). In addressing the issue, the Special Rapporteur stated, �Although this report retains �penetration� in the definition of rape, it is clear that the historic focus on the act of penetration largely derives from a male preoccupation with assuring women�s chastity and ascertaining paternity of children.� (Final Report at para. 24).
⁶ The suggested comments to genocide provides:

1.The term �forcible� in article 6(e) is not restricted to direct acts of physical force and may include, but is not necessarily restricted to, threats or intimidation.

For the sake of consistency throughout the annex, this paragraph should be modified to include at the end �and other circumstances which are coercive.� It could then be placed as a general statement.
⁷ Article 27 of the Fourth Geneva Convention provides: ��Women shall be especially preocteded against any attack on their honour, in particular against rape, enforced prostitution or any form of indecent assault.�
⁸ Final Report of the Special Rapporteur on Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, at para. 27.
⁹ The ICTY confirmed the following charge of enslavement in the Foca Indictment:

10.2 In contrast to Partizan Sports Hall, the detainees at Karaman's house had sufficient food. They were not guarded or locked inside the house. The detainees even had a key they could use to lock the door and prevent soldiers, not belonging to Pero Elez's group, from entering. The detainees were also given the telephone number of the Miljevina motel, and were told that they should call this number if any soldier without authorisation tried to enter the house. When the women did call this number, either RADOVAN STANKOVIC or Pero Elez would come to prevent other persons from entering the house. Although the detainees were not guarded, they could not escape. They had nowhere to go as they were surrounded by Serbs, both soldiers and civilians.
...
10.4 During the entire period of their detention at Karaman's house, FWS-75, FWS-87 and the other female detainees were subjected to repeated rapes and sexual assaults at night. All the perpetrators were Serb soldiers who belonged to Pero Elez's group. Among the soldiers who frequently raped FWS-75 and FWS-87 (vaginal and anal penetration) was RADOVAN STANKOVIC.

¹⁰ (Final Report, para. 27)
¹¹ For example, in Akayesu , the ICTR stated: �Other forms of sexual violence, which includes rape, is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive.� Akayesu at para. 598.
¹² Id at 688.