Article 71

For the purposes of the present Convention:

(a) "Slavery" means, as defined in the Slavery Convention of 1926, the status or condition of a person over
whom any or all of the powers attaching to the right of ownership are exercised, and "slave" means a
person in such condition or status;
(b) "A person of servile status" means a person in the condition or status resulting from any of the
institutions or pra2ctices mentioned in article 1 of this Convention;
Article 1 (c) Any institution or practice whereby:

(i) A woman, without the right to refuse, is promised or given in marriage on payment of
a consideration in money or in kind to her parents, guardian, family or any other person or
group; or

(ii) The husband of a woman, his family, or his clan, has the right to transfer her to another
person for value received or otherwise; or

(iii) A woman on the death of her husband is liable to be inherited by another person;

(d) Any institution or practice whereby a child or young person under the age of 18 years,
is delivered by either or both of his natural parents or by his guardian to another person,
whether for reward or not, with a view to the exploitation of the child or young person or
of his labour.

(c) "Slave trade" means and includes all acts involved in the capture, acquisition or disposal of a person
with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or
exchanging him; all acts of disposal by sale or exchange of a person acquired with a view to being sold or
exchanged; and, in general, every act of trade or transport in slaves by whatever means of conveyance.

1
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to
Slavery. Article 7.

2
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to
Slavery. Article 1 (c).
Prosecutor vs Dragoljuub Kunarac et al. (T-96-23 & 23/1)3

Facts:

From April 1992 to February 1993 at least, the area of Foca was the scene of an armed conflict. The crimes
of which Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic were found guilty by the Trial Chamber
were closely related to this armed conflict. Non-Serb civilians were killed, raped or otherwise mistreated
as a direct consequence of that armed conflict. Kunarac, Kovac and Vukovic also participated in this
campaign which sought, inter alia, to rid the area of Foca of its non-Serb inhabitants. One of the targets
of the campaign were the Muslim civilians, women in particular. They were detained in various centers
where the conditions of hygiene were intolerable and where they were subjected to many acts of physical
violence, including multiple rapes. The criminal conduct of the three appellants was part of this systematic
attack on the non-Serb civilians. All three knew that the area of Foca was the scene of an armed conflict.
They also knew that an attack on the non-Serb civilian population had been launched and that their
criminal acts occurred within or were part of this attack. On 22 February 2001, the Trial Chamber found
Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic, guilty of crimes against humanity on the counts
of enslavement.

Issue:

Whether lack of consent is a constituent element of the crime against humanity of enslavement

Held:

The Appellants propose to substitute the following elements for those considered by the Trial Chamber
for the crime of enslavement: the accused must have considered the victim “as its own ownership”, there
must have been the constant and clear lack of consent of the victim, the victim must have been detained
for an indefinite or at least for a prolonged period of time and the accused must have had the intent to
detain the victim under constant control for a prolonged period in order to use the victim for sexual acts.
However, the Appeals Chamber does not accept the premise that lack of consent is a constituent
element of the crime. It abides by the Trial Chamber’s decision attributing a relative importance to the
duration of the detention and not considering it an element of the crime. It concurs with the Trial Chamber
that the required mens rea for this crime consists of the intentional exercise of a power attached to the
right of ownership over the victims without it being necessary to prove that the accused intended to
detain the victims under constant control for a prolonged period in order to use them for sexual acts.
Consequently, the Appeals Chamber is of the opinion that the Trial Chamber’s definition of the crime of
enslavement is not too broad and does indeed reflect customary international law at the time when the

3
International Criminal Tribunal for the former Yugoslavia: Kunarac et al. (IT-96-23 & 23/1)
alleged crimes were committed. The grounds of appeal relating to the definition of the crime of
enslavement are therefore rejected.

Indications of enslavement include elements of control and ownership; the restriction or control of an
individual’s autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain
to the perpetrator. The consent or free will of the victim is absent. It is often rendered impossible or
irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence,
deception or false promises; the abuse of power; the victim’s position of vulnerability; detention or
captivity, psychological oppression or socio-economic conditions. Further indications of enslavement
include exploitation; the exaction of forced or compulsory labour or service, often without remuneration
and often, though not necessarily, involving physical hardship; sex; prostitution; and human trafficking.
With respect to forced or compulsory labour or service, international law, including some of the provisions
of Geneva Convention IV and the Additional Protocols, make clear that not all labour or service by
protected persons, including civilians, in armed conflicts, is prohibited – strict conditions are, however,
set for such labour or service. The “acquisition” or “disposal” of someone for monetary or other
compensation, is not a requirement for enslavement. Doing so, however, is a prime example of the
exercise of the right of ownership over someone. The duration of the suspected exercise of powers
attaching to the right of ownership is another factor that may be considered when determining whether
someone was enslaved; however, its importance in any given case will depend on the existence of other
indications of enslavement. Detaining or keeping someone in captivity, without more, would, depending
on the circumstances of a case, usually not constitute enslavement.4

4
International Criminal Tribunal for the former Yugoslavia: Kunarac et al. (IT-96-23 & 23/1) para 542.