Comment on the Mass Rape Question: “Can the International Criminal Court sustain a conviction for the underlying crime of mass rape without testimony from victims?”
Although direct victim testimony would be of immense importance to the prosecution in proving the case of mass rape in the ICC it is often very difficult if not impossible to convince victims of rape to testify in open court owing to the severe stigma attached to rape in most societies. However the ICC can still sustain a conviction on mass rape by exploring different forms of evidence other than direct testimony from the victims.
INTRODUCTION; Direct testimony from victims of rape has always been difficult to get both in national and international courts because of the immense stigma associated with rape. These stigma can lead to severe personal and cultural setbacks to the victims and their generations to come.
I strongly believe that the duty of the prosecution in a criminal trial is to tender sufficient evidence that meets the standard of proof (beyond reasonable doubts) in criminal trials. The prosecution in proving its case will have to tie the accused to the different elements of the crimes and this can be done convincingly without direct testimony from the victims thus making their presence in the trial not a condition sine qua non.
The crime of rape has been enshrined by the Rome Statute under the rubric of crimes against humanity and war crimes. My comments will be based on rape as a crime against humanity.
THE ELEMENTS OF RAPE AS A CRIME AGAINST HUMANITY
1) The perpetrators invaded the body of a person by conduct resulting in penetration however slight, of any part of the body of the victim or of the perpetrator with a sexual organ or of the anal or genital opening of the victim with any object or any other part of the body.
2) 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 persons or other persons or by taking advantage or a coercive environment or the invasion was committed against a person incapable of giving genuine consent.
3)The conduct was committed as a part of a widespread or systematic attack directed against a civilian population.
4)The perpetrator knew that the conduct was part or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
The first two elements constitutes the ingredients necessary to prove that the offence of rape was actually committed. These ingredients which could be termed as the substantive requirements needed to prove the offence of rape is analogous with that of most domestic systems. That is the must be
B) Use of force
c) Absence of consent.
The third and fourth element would rather been looked upon as the two major elements that places the offence under the jurisdiction of the ICC.
Thus while the prosecution sufficiently link the accused to the first and second element to prove that the offence of rape did actually occur, they will have to link the accused to the third and fourth element to show that the ICC has the jurisdiction to entertain the matter.
SHOWING THAT THE VARIOUS ELEMENTS OF THE OFFENCE CAN BE PROVED WITHOUT DIRECT TESTIMONY FROM THE VICTIMS
A) INVADING THE BODY OF THE VICTIM; This can be proved by documentary evidence from medical doctors or other experts. It can also be proven by oral testimony from eye witnesses which I believe in the issue of mass rape are in a better position to identify the perpetrators than the victims. This can also be proven by confessional statements made by some perpetrators of the rape or some senior members of their organization.
B) THE USE OF FORCE OR THRAET OF FORCE; This particular element of the offence of rape like the former can also be proven without direct testimony from the victims. The use of force or threat of force can be proven by medical reports since the offence of rape usually leaves the victims with severe physical injuries.
The use of force or threat of force can also be proven by eyewitnesses.
It can also be proven by humanitarian or aid workers who come face to face with the victims shortly after the incidents or who have the opportunity of interviewing the victims in refugee camps.
It can also be proven by a confessional statement of one of the perpetrators or senior member of the organization.
C) WIDESPREAD OR SYSTEMATIC ATTACK; this third element is to prove that the ICC has the jurisdiction to entertain the matter. Thus if elements one and two are successfully proven then the offence of rape has been established. This also can be proved by medical reports, security reports and reports from humanitarian organizations. If over a particular period medical reports, security reports or humanitarian organizations reports can show that there has been an abnormal increase in rape attacks, this might satisfy the condition of "widespread”. If the said report can also show that those attacks were carried in a particular manner that is looking at age group targeted, racial, religious or ethnic group targeted or any means to show that a particular method was used in carrying out the rape attacks ,this will satisfy the "systematic" condition.
INTENTION OR MENS REA ; It is very possible to prove this head without the use of direct victim testimony. If the prosecution can successfully prove the first, second and third elements, it goes without saying that directly or indirectly the accused did have knowledge or intended that the conduct be part of a widespread or systematic attack against civilians. This can also be proved by expert reports, eyewitnesses and confessional statements.
CONCLUSION; In as much direct testimony from victims of mass rape can be very valuable to the prosecution in sustaining a conviction in a trial for rape before the ICC it is however not inevitable as the prosecution can use other forms of evidence and testimony like pattern evidence and hearsay evidence in proving it ,s case.