Element
8.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.
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.
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. [ ]"
