Can the ICC sustain a conviction for the underlying crime of mass rape without testimony from victims?
War crimes courts regularly hear certain charges without direct victim testimony. For some crimes, such as mass killing or extermination, direct testimony of victims is impossible, except in the rare cases where a victim manages to survive the slaughter.
Yes, in many instances, the ICC can sustain a conviction for mass rape without testimony of survivors. That doesn’t necessarily mean, however, that prosecutors should not give survivors the opportunity to testify when they are able and willing to do so and have information relevant to the case. The widespread and often systematic nature of sex crimes, and frequently their commission in public, often results in a large number of eye-witnesses to mass rape crimes. Even without eye-witnesses or insider witnesses, other evidence of the crimes may be available, including medical and forensic evidence, as well as documentation from UN agencies and humanitarian organizations, NGO reports, and investigative journalists.
Most jurisprudence from war crimes tribunals indicates that it is easier to sustain a conviction for mass rape without direct victim testimony when the accused is in a position of authority and is charged with crimes committed by subordinates that he failed to prevent, halt, or punish, or is otherwise responsible for a failure to act. Depending on the circumstances, it may be more difficult to convict on mass rape crimes committed by lower level accused or physical perpetrators, without testimony from survivors of the crimes, if linkage evidence is lacking to demonstrate beyond a reasonable doubt that the particular defendant in the dock shares responsibility for the sex crimes.
War crimes courts regularly hear certain charges without direct victim testimony. For some crimes, such as mass killing or extermination, direct testimony of victims is impossible, except in the rare cases where a victim manages to survive the slaughter. Theoretically, no rape victim should have to testify about their rape in order to sustain a conviction, and certainly there are instances when all the victims are killed after being raped.
For those who survive sex crimes, testifying about sexual violence—a crime committed on the most intimate, private, sacred parts of their body—can be particularly traumatic. Even reporting the crime may be difficult in cultures or societies where females—and their sexuality—are viewed as belonging to a male, or where a female’s loss of virginity or perceived sexual impurity or promiscuity is viewed as tainting the honor of the entire family. The stigmas wrongly placed on victims of sex crimes provides an added incentive to attackers, while exacerbating the injuries to the victims, families, and the broader community group to which the victim belongs. The burden of proving rape crimes—where the burden of proving the elements of the crime (such as consent) is shifted to the victim instead of the accused—adds another disincentive to reporting, indicting, and successfully prosecuting rape. In such situations, testimony by non-victims can be especially beneficial when the crimes are of a sexual nature.
The situations currently before the ICC—including sexual atrocities in Darfur, the Central African Republic, northern Uganda, the Democratic Republic of Congo, Kenya, Ivory Coast, and Libya—demand redress.
In most situations of war or mass atrocity, rape is seldom committed in isolation. There are typically a series of crimes—murder, torture, rape, forced displacement, and pillage—committed in similar patterns, in different localities, over an extended period of time. To enhance the terrorizing and traumatizing aspects of rape, they are frequently committed publicly, by multiple perpetrators or gangs, and it is not unusual for family or community members to be forced to watch or participate. When dozens, hundreds, thousands, or even hundreds of thousands of women and girls are raped, there tend to be numerous witnesses to these crimes, adding to the ability to prosecute these crimes successfully without direct victim testimony.
Sexual violence is committed opportunistically, because the atmosphere of war and chaos, the breakdown of law and order, and the prevalence of fear, revenge, retaliation, and hate-mongering, create the opportunity; and as a weapon of warfare, where sexual violence is committed strategically in order to terrorize, demoralize, and destroy individuals from opposing groups; or for convenience, committed to assist a particular side by having sex slaves, forced wives, and forced labor (including by members of their own ‘group’) forcibly available to the armed forces and rebel groups. Some of these take place over days, weeks, months, and even years. Male rape is increasingly documented and reported.
Sex crimes may have been ordered, encouraged, implicitly approved, or quite commonly, simply ignored. As history has proved, when there are explicit orders not to rape, widespread rape still commonly occurs.1 Even with laws or orders forbidding rape, at some point, rape that is frequent and unpunished becomes tacitly sanctioned by the leaders allowing them to continue unabated.
In the Nuremberg Trials held after World War II, much of the evidence was submitted through documents, although witnesses also testified at trial. While not explicitly prosecuted (indeed, not listed as a specific crime within the Nuremberg Charter), various forms of sex crimes were admitted into evidence at trial and can be considered subsumed within the persecution and inhumane acts counts as crimes against humanity. The transcripts of the trials contain evidence of rape, mass rape, sexual slavery, sexual torture, forced prostitution, forced sterilization, forced abortion, pornography, sexual mutilation, forced nudity, and sexual sadism.2
At the Tokyo Trials held after World War II, rape was again excluded from the Tokyo Charter, but rape was nonetheless included in the indictment under several of the war crimes charges, and three defendants of the International Military Tribunal for the Far East and defendants of other war crimes trials in Asia were convicted of sex crimes.3 In the transcripts of the Tokyo Trials, rape, mass rape, enforced prostitution, sexual torture, and other sexualized crimes were entered into evidence. Like at Nuremberg, the court relied primarily on documentary evidence, but reports of the sex crimes by investigators, eye-witnesses, and affidavits from survivors were also entered into the official record of the Tokyo Trial.4
Contemporary war crimes tribunals have also successfully prosecuted rape crimes without relying on the testimony of direct victims of the crimes. For example, in the International Criminal Tribunal for Rwanda (ICTR), the “Military I” case, against military chief Colonel Bagosora, and three other military leaders, was pursued without direct rape victim testimony. Of the 242 witnesses heard by the Trial Chamber, only one, Witness DAZ, testified about her own sexual violence. Nonetheless, in court the prosecution asked most witnesses, including UN officials and human rights and women’s rights experts, whether they had seen or heard of sexual violence. Many witnesses testified about knowledge of or eye-witness to sexual violence, which has been found to have been part of the genocide in Rwanda, committed on both a widespread and systematic basis. Some witnesses were also asked about any linkage testimony of the accused to any of the rapes. Nonetheless, it should be emphasized that to constitute rape as a crime against humanity, rape itself does not need to be widespread or systematic, but it must form part of either a widespread or systematic attack against a civilian population. Thus, rape does not need to be “massive” to constitute a crime against humanity.
Testimony from independent, impartial observers can be extremely powerful. For example, Major Brent Beardsley, the assistant to Romeo Dallaire, the commander of the UN’s peacekeeping force in Rwanda during the genocide, testified in the Bagosora case. When asked about female corpses, and any observations he may have had about them, Beardsley replied:
Yes, two things, really. One, when they killed women it appeared that the blows that had killed them were aimed at sexual organs, either breasts or vagina; they had been deliberately swiped or slashed in those areas. And, secondly, there was a great deal of what we came to believe was rape, where the women’s bodies or clothes would be ripped off their bodies, they would be lying back in a back position, their legs spread, especially in the case of very young girls. I’m talking girls as young as six, seven years of age, their vaginas would be split and swollen from obviously multiple gang rape, and then they would have been killed in that position. So they were laying in a position they had been raped; that’s the position they were in.
Rape was one of the hardest things to deal with in Rwanda on our part. It deeply affected every one of us. We had a habit at night of coming back to the headquarters and, after the activities had slowed down for the night, before we went to bed, sitting around talking about what happened that day, drink coffee, have a chat, and amongst all of us the hardest thing that we had to deal with was not so much the bodies of people, the murder of people—I know that can sound bad, but that wasn’t as bad to us as the rape and especially the systematic rape and gang rape of children. Massacres kill the body. Rape kills the soul. And there was a lot of rape.
It seemed that everywhere we went, from the period of 19th of April until the time we left, there was rape everywhere near these killing sites.5
In the judgment of the Military I trial, Colonel Bagosora was found guilty of, among other convictions, rape as a crime against humanity, for sexual violence committed by his subordinates. The court found him criminally responsible for failing in his duty to prevent, halt, or punish these crimes. However, the other three military officials were acquitted of rape crimes, including one alleged to have physically perpetrated rapes himself, when the judges found the linkage evidence lacking, in that the other three accused’s responsibility for the sex crimes had not been proved beyond a reasonable doubt. It is unclear whether rape victims were able and willing to testify against these accused, but were not called by the prosecution to give evidence at trial.
In cases where the prosecution must rely exclusively on non-victim testimony for the rape crimes, gender crimes experts, medical personnel, and innovations like rape databases containing witness statements, can provide useful testimony or documentation to the court, including to establish the widespread or systematic nature of the crimes or the accused’s knowledge of the sexual violence.6 Reports by NGOs, UN bodies, experts, and humanitarian organizations, media, researchers, and others, including members of armed groups and insiders, can also provide compelling evidence of the crimes and who incurs responsibility for them. When appropriate, mid—and lower—level suspects could be offered immunity from prosecution by the ICC in order to secure their testimony against higher level accused. When necessary, witnesses (including victim-witnesses) should of course be provided with adequate protection in order to facilitate their testimony.
In the Charles Taylor trial before the Special Court for Sierra Leone, direct victims of sexual violence did testify at trial, and the former president of Liberia was found guilty of rape and sexual slavery as crimes against humanity. However, there was ample evidence from other sources besides rape victims, and it is highly probable that Taylor would have been found responsible for these crimes even without victim testimony. The Trial Chamber emphasized that the sex crimes were public knowledge for years and Taylor had to have knowledge of the crimes, which were regularly reported by NGOs, media, the UN, and others. His acts of assistance to the rebel groups aided and abetted these crimes.7
There is clear and convincing evidence worldwide that sexual violence is endemic in armed conflict, and has been for centuries. Political and military leaders and others in positions of authority or control are on notice that they need to take extra measures to prevent the crimes. In the last 12 years alone, five Security Council resolutions have endeavored to redress the wartime rape crisis.8
In contemporary conflicts, the prevalence of satellite imagery, mobile phone recordings, digital photos, and other advanced technology, documentation, recording, and media devices, should also make evidence of mass rapes, as well of other crimes, easier to document and record.
Victim Testimony Even When Not Required for Conviction
For some sex crime survivors, testifying has healing or empowering aspects, and thus they should not automatically be denied this opportunity. Indeed, some (but definitely not all) rape victims do not want the crime against them charged as torture, enslavement, persecution, outrages upon personal dignity, inhumane acts, or other more generic crimes which can capture various forms of violence, including sexual violence—they want it charged as rape or others charges, such as sexual slavery, which indicate the sexual nature of the crime committed.
Therefore, a related question is even if the ICC can sustain a conviction for mass rape without the survivor’s testimony, should all rape victims be excluded from testifying at trial when they are able and willing to do so and have relevant testimony about the crime or the accused’s responsibility for or knowledge of the attacks?
Without question, it is very important to ask non-rape victims about the prevalence of sex crimes, and any knowledge of the accused’s responsibility for the crimes—ordering sexual violence, tacit encouragement, presence at crime scenes, failing to take measures to prevent, ignoring their commission, participating in a joint criminal enterprise, etc. Yet it is also essential for survivors to be able to testify about the crime committed against them or to allow them to bear witness on behalf of others.
As one example, in a study published in December 2009 that looked at the treatment of witnesses who had testified about their own rapes before the International Criminal Tribunal for the former Yugoslavia, 84% of those surveyed responded that it was “very important to testify on rape.”9 Fully 68% said part of their motivation to testify about their own rapes was to “honor” those who could not testify themselves because they did not survive.10 Confronting their perpetrator in a court of law, reclaiming their lives, establishing the truth about events, and ensuring that perpetrators were not free to rape others, were also motivations common among the respondents interviewed for the survey.11
Having experts on gender related crimes with decision-making authority in the various organs of the courts is critical to the pursuit of justice for mass rape crimes. The new prosecutor of the ICC, Fatou Bensouda, has indicated that gender crimes will be rigorously pursued by her office. In addition to victim and non-victim testimony, a directive from the top is an essential component to successful investigations and prosecutions of these horrific crimes.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
As but a handful of examples: It was against the law for Nazi Germans to have sex with Jews, even by rape, yet sex crimes were prevalent during WWII; the Khmer Rouge in Cambodia reportedly forbade cadre from raping women before killing them, but rape (and forced marriage) were nonetheless common occurrences; one reason the Japanese set up ‘comfort stations’ to hold women and girls into sexual slavery for the Japanese military in WWII, was supposedly to prevent rape of local women, yet rape was widespread. See , War Crimes Against Women: Prosecution in International War Crimes Tribunals (1997). ↩
See Trial of the Major War Criminals Before the International Military Tribunal, 14 Nov. 1945—1 Oct. 1946 (42 Vols., 1947), Vol II, transcript pg 139 (pornography); Vol VI, transcript pgs 170 (torture), 178 (torture/rape), 212 (forced sterilization, forced abortion, infanticide), 213-214 (forced prostitution), 404-407 (rape); Vol VII, transcript pgs 453-457 (rape), 467 (rape), 494 (rape/torture), 505 (torture, sexual mutilation), 548 (pornography); Vol XX, transcript pg 381 (sexual assault). ↩
In the IMTFE Judgment, General Iwane Matsui, Commander Shunroku Hata, and Foreign Minister Hirota were held criminally responsible for crimes, including sex crimes, committed by persons under their authority. The Tokyo Judgement: The International Military Tribunal for the Far East [B.V.A. Roling & C.F. Ruter eds.], 1977), at pgs 446-54. See also Case No. 21, Trial of General Tomoyuki Yamashita, United States Military Commission, Manila (8 Oct-7 Dec 1945) and the Supreme Court of the United States (Judgments Delivered on 4 Feb. 1946), available online. Yamashita was held criminally responsible for crimes, including mass rape, committed by persons under his authority. ↩
The Tokyo War Crimes Trial: The Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East [R. Pritchard & S. Zaide eds.], 22 Vols, 1981), see for example, Vol 2, transcript pgs 2568-2573, 2584, 2592-2595, 3904-3944, 4463-4479, 4496-4498, 4501-4503, 4504-4507, 4512-4515, 4518-4521, 4526-4531, 4533-4536, 4544, 4559, 4572-4573, 4594, 4602, 4615,4638, 4642, 4647, 4660; Vol 6, transcript pgs 12521-12548, 12995, 13117, 13189,13641-42, 13652. ↩
Prosecutor v. Bagosora et al., ICTR-98-41-T, Transcript, February 3, 2004. ↩
See, e.g., The Prosecutor v. Ildephonse Nizeyimana, ICTR-00-55-PT, Prosecution Response to Defence Urgent Pre-Trial Motion for Disclosure re Binaifer Nowrojee, (December 23, 2010), discussing the collection of statements of over 400 war rape victims in Rwanda in a database, before the Rwanda Tribunal, available online. ↩
See, e.g., Prosecutor v. Charles Ghankay Taylor, Judgement, SCSL-03-01-T, May 18, 2012, at paras. 529, 6823, 6882, 6886. ↩
UN Security Council Resolutions 1325 (2000), 1820 (2008), 1888 (2009), 1889 (2009), and 1960 (2010). ↩
The Trouble with Rape Trials—Views of Witnesses, Prosecutors and Judges on Prosecuting Sexualised Violence during the War in the former Yugoslavia (Medica Mondiale, December 2009), at p. 52. ↩and , Coordinators,