Invited Experts on Mass Rape Question

Askin Avatar Image Kelly Dawn Askin, J.D., Ph.D. Senior Legal Officer, International Justice Open Society Justice Initiative

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.

Summary

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.

Argument

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).

  1. 1.

    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 Kelly D. Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals (1997).

  2. 2.

    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).

  3. 3.

    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.

  4. 4.

    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.

  5. 5.

    Prosecutor v. Bagosora et al., ICTR-98-41-T, Transcript, February 3, 2004.

  6. 6.

    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.

  7. 7.

    See, e.g., Prosecutor v. Charles Ghankay Taylor, Judgement, SCSL-03-01-T, May 18, 2012, at paras. 529, 6823, 6882, 6886.

  8. 8.

    UN Security Council Resolutions 1325 (2000), 1820 (2008), 1888 (2009), 1889 (2009), and 1960 (2010).

  9. 9.

    Gabriela Mischkowski and Sara Sharatt, Coordinators, 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.

  10. 10.

    Id., p. 56.

  11. 11.

    Id., pgs. 52 & 56.

de Brouwer Avatar Image Anne-Marie de Brouwer, Ph.D., LL.M. Associate Professor Tilburg University/Tilburg Law School

Cases of Mass Sexual Violence Can Be Proven Without Direct Victim Testimony

While some victims of sexual violence may choose not to testify out of security, dignity or privacy concerns, others may want to do so.

Summary

The ICC legal framework allows for convictions of accused for sexual violence (or any other crime) as genocide, crimes against humanity or war crimes based on other evidence than direct physical victim testimony. Such evidence may include the more traditional legal evidence that has been used in many international criminal tribunals to date (e.g. eyewitnesses’ accounts, expert witnesses’ accounts, documentary evidence, etc.), which could be supplemented by new innovative social science evidence. In each case before the Court, it will be up to the Chamber to rule on the relevance or admissibility of the evidence, thereby taking into account the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness. Furthermore, while some victims of sexual violence may choose not to testify out of security, dignity or privacy concerns, others may want to do so, and therefore it is important to be open to and look for the evidence on sexual violence right from the beginning, at the investigation stage, and to see whether and which protective and special measures for the victims are applicable.

Argument

Whether cases of sexual violence can be prosecuted and lead to a conviction of the accused before the International Criminal Court (ICC) without direct testimony of victims of sexual violence was one of the topics of debate during the first International Colloquium on “Prosecuting Sexual Violence as an International Crime: Interdisciplinary Approaches” held from 16-18 June in The Hague.1 Here, ICC Prosecutor Luis Moreno-Ocampo said that he welcomed interventions of social scientists to push forward the frontiers of international criminal justice and that “one of our goals is a case with no witnesses, no victims. We want to use methods that you are developing, such as statistical analysis. We must refine how to use your tools.”2 Navi Pillay, UN High Commissioner for Human Rights, similarly held that in cases of sexual violence in conflict “a good prosecutor should be able to argue a case without individual testimony by establishing the planning, the modus, and the effects of the crime.”3 The issues we are confronted with in order to arrive at an answer to the main question in this forum “can the ICC sustain a conviction for the underlying crime of mass rape without testimony from victims” are two-fold: (1) does the ICC legal framework allow for convictions based on other evidence than direct victim testimony; and (2) if so, what kind of evidence is that and under which conditions is such evidence admissible in court?

The ICC Legal Framework

The Rome Statute contains a few indications regarding the (type of) evidence that may be tendered by the Prosecution at trial. For example, Article 69(2) of the Rome Statute stipulates that besides victim and witness testimony, also documents or written transcripts can be permitted by the Court, as long as the evidence is not prejudicial to or inconsistent with the rights of the accused, which for instance includes the right to examine the witnesses against him or her.4 Furthermore, Article 69(3) of the Rome Statute provides that “the parties may submit evidence relevant to the case, in accordance with article 64. The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth,” while Article 69(4) states that “the Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence.” The Rules of Procedure and Evidence further elaborate on evidentiary matters, in which, inter alia, the use of live video or audio recording and prior recorded testimony is further explored (see Rules 64-75 in particular). Here it is furthermore good to recall Rule 63(4) of the Rules of Procedure and Evidence which acknowledges that corroboration of evidence is not a requirement for any crime, particularly not with regard to crimes of sexual violence. The special evidentiary rule thus specifically acknowledges that biases against victims of sexual violence, in particular women, are not accepted and that they are as reliable as witnesses as any other witnesses. Based on the ICC legal framework it could therefore be concluded that evidence other than direct physical victim testimony could be sufficient to arrive at a conviction of an accused for sexual violence or any other crime constituting genocide, a crime against humanity or a war crime. In each case, it is up to the Chamber to rule on the relevance or admissibility of the evidence, thereby taking into account the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness.

Type of Evidence

There has not been a case before an international criminal tribunal in which it was stated that without the direct testimony of the victim the crime was unable to be proven or that the rights of the accused were violated. Evidence in cases of sexual violence other than direct victim testimony has commonly included eyewitnesses, hearsay witnesses, and expert witnesses (for instance, from an NGO, medical or psychology background) who testified about an actual incidence of sexual violence and/or sexual violence in general. Witnesses appearing in court could, for instance, be asked what they know about the sexual violence that was being committed or whether they could give descriptions of female corpses with indications of rape to establish that there was a permissive environment for sexual violence. In the ICC’s Bemba Gombo trial a Prosecution eyewitness, for example, testified about the rape of an eight year old girl by the Movement for the Liberation of Congo (MLC) forces in front of her mother, whereas an expert witness (a psychologist) called by the Prosecution testified about the widespread nature and types of sexual violence in the Central African Republic.5 In addition, there might be military supporting or incriminating documents or other documents (e.g. UN, NGOs) generated concerning the specific incidents of sexual violence. Furthermore, plain admission by insiders, or the accused, or stipulations to previously established facts—especially for leadership cases—can be used as a source of evidence. All of this non direct, physical victim evidence concerns admissibility issues that, as mentioned above, the Chamber will need to decide upon. Nevertheless, cumulative probative non direct victim testimony also requires one to answer the main question addressed in this forum in the affirmative, even if there must be a case-by-case exploration of the sufficiency of the evidence for conviction in the absence of having a physical victim testify (which could also include the situation where the victim died or where the victim is a child and cannot testify because of capacity reasons).

During the 2009 International Colloquium on “Prosecuting Sexual Violence as an International Crime: Interdisciplinary Approaches” several ways in which social science evidence can build cases and international justice institutions, and could thus supplement the more traditional legal approaches in gathering evidence and prosecuting sexual violence crimes as just discussed, were heard. John Hagan (Northwestern University), Richard Brooks (Yale Law School) and Todd Haugh (De Paul University College of Law) demonstrated how Hierarchical Linear Modeling (HLM) using the data collected by the US Department of State’s Atrocity Documentation Survey (ADS) could document a chain of command connecting the government of Sudan to acts of sexual violence and genocide in Darfur.6 HLM allows “for the cross-validation of aggregated respondent reports (for example in villages or settlements), while also taking into account individual-level sources for variation and bias.”7 Using this technique allowed Hagan and colleagues to determine who the attackers were and to map the distribution of racial epithets heard during attacks. ADS information revealed that two-thirds of the attacks were carried out by joint Sudanese and Janjaweed forces. ADS information further revealed the use of racially charged epithets that provided evidence of explicit racial targeting—an important element in establishing the crime of genocide. It was further found that when racial epithets were present, sexual assaults were linked to race. Working with the data of the ADS in this way, Hagan, Brooks and Haugh established a pattern of events that reached through the highest levels of the government of Sudan.

The work of Lynn Lawry (US Department of Defense), Kirsten Johnson (McGill University Faculty of Medicine) and Jana Asher (Statistician and Executive Director of StatAid) showed the usefulness of epidemiologic sampling methods (a health and human rights framework) “to gather data from individuals of the population who represent the population as a whole,” including in countries such as Sierra Leone, Iraq and Liberia.8 Lawry, Johnson, and Asher’s work shows how cluster surveys are used to provide generalizable information in circumstances where a comprehensive study could not be done because of terrain or safety concerns in conflict situations. Such studies do not rely on interviews, but rather on population assessments and can be used “to demonstrate the systematic nature of the crime.”9 Lawry, Johnson, and Asher make clear that the preparation and gathering of usable data faces unique challenges requiring detailed focus on local mores, languages, and practices that need to be incorporated into the survey instruments. Chen Reis (World Health Organization) furthermore notes that increased awareness of these crimes have also increased the demand for data “to inform protection, prevention and response including resource allocations, humanitarian programs and advocacy and justice processes coming from a range of actors including UN bodies, governments, the press and non-governmental organizations.”10 This increased demand puts a premium on producing good data and sound analyses of those data that are based on findings and not on assumptions or foregone conclusions. These same concerns continue to be present when conducting the survey. This includes providing appropriate training for the individuals collecting and coding the data all of which requiring close supervision and awareness of culture specific and local conditions. This has meant that development of the surveys have relied on qualitative information in order to identify and to capture key indicators. For example, knowing that in the Democratic Republic of the Congo, Mai Mai culture required a cleansing ceremony of males following a sexual act revealed that female Mai Mai combatants were responsible for a portion of sexual and gender based violence in that area. Through their methodology they therefore discovered that, not only men, but also women are perpetrators of sexual violence in conflict and that not only women and girls are victims of such crimes, but also men and boys, and came up with shocking percentages. Although this phenomenon was not completely unknown, the scope of the problem was and now requires rethinking when it comes to health care, policy, guidelines for responses to gender based violence, advocacy, but also investigation and prosecution of these crimes.11 As Lawry and colleagues noted, “Qualitative interviews provide insight into the individual’s experience of human rights abuses and thereby offer the human face and voice to the statistical numbers that are obtained from quantitative work.”12 Qualitative and quantitative data therefore play essential and complementary roles in providing evidence of sexual violence crimes, according to the researchers. This form of evidence-based documentation has been important in placing rape within an overall group dynamic of violence and has helped to overcome the assumption that acts of sexual violence committed during wartime necessarily follows orders or directions from higher authorities. Lawry, Johnson, and Asher caution that rape during conflict can be committed by anyone and at anytime and therefore should be searched for more broadly beyond a chain of command. Opportunistic sexual violence can come from higher levels of authority but under different liability whereby leaders create opportunity to use sexual violence either by setting an example or by simply allowing sexual violence to happen without punishment. These methods adapted from epidemiology are becoming “more rigorous, more complex and less disputable over the years,” but this evidence-based data may differ from the Rules of Evidence developed by the ICC, and there remains a need for training and orientation as to the use of the information.13 As Reis pointed out, data is derived from and corroborated by individual testimonies, aggregated data, and wider population-based surveys. Depending on the initial purpose for gathering the data, it may not be immediately applicable to a judicial proceeding so that the significance and appropriate use of such data also needs to be well understood. Lawry, Johnson, and Asher concluded that although employing these methods provide a means to generate statistically significant data that can be generalized to the population as a whole for the purposes of evidence collection in the case of international crimes, such as before the ICC, “[i]t is important to continue the dialogue and to better understand the different needs between the lawyers, the social scientists and the survivors of sexual violence.”14

The question therefore remains how these statistical analyses can be used for international criminal prosecution? Xabier Agirre Aranburu, Senior Analyst in the ICC’s Office of the Prosecutor, said: “It is necessary to take three steps: to get a level of description of the patterns of a crime; then, to correlate the crime with the working of the command structures that produced it; then to explain what caused it. We need descriptive statistics to show that the crime is grave, that its scope warrants the International Criminal Court, which intends to take only the most serious cases.”15 Agirre Aranburu reminds us that pattern evidence has been used to investigate large-scale killings, destruction, and displacement, but much less for sexual violence.16 According to him: “International crimes often comprise a large number of incidents that can be characterized as a pattern as long as they show common features on all or most of the following aspects: (1) the profile of the perpetrators; (2) the profile of the victims; (3) the geographical and chronological distribution profile of the victims; and (4) the modus operandi in the commission of the crime.”17 Agirre Aranburu noted that there are challenges to using pattern evidence on at least three levels: (1) the tendency of law enforcement and judicial institutions to ignore sexual violence requires direction from the top of these institutions to correct this; (2) sexual violence continues to be under-reported; and (3) whatever evidence is provided needs to stand up to the scrutiny of impartial experts and others who are not directly involved in the conflict.18

In order to use statistical evidence in a legal proceeding, such evidence must thus follow methodologies accepted by the scientific community, be subject to peer review, and be properly sourced and justified. In a way, these analyses build forth on earlier applied approaches in court, such as the so-called OTP Rape Database before the ICTR.19 The findings resulting from this database illustrated that the rapes committed during the Rwandan genocide were so commonplace, often committed with the intent to destroy Tutsi women on the basis of both their ethnicity and their gender, that the accused could not have failed to know that they were occurring with genocidal intent. In court, an expert witness could testify, confirm and further explain the findings from the report, as was done before the ICTR. In this way, the rights of the accused to examine the evidence submitted against him or her will not be compromised. Optionally, the Court could additionally introduce the oral testimonies of one or two strong victims of sexual violence who are willing to come to the Court and who could similarly confirm the findings in the report. Such an approach could also be applied when the Court would be using social science evidence to build cases of sexual violence.

New methodological approaches to collection and use of data on sexual violence in conflict and interdisciplinary partnerships may therefore reduce impunity, strengthen law, and alleviate suffering for victims of sexual violence, and need to be further researched and continually improved for the use before international criminal courts.20 These new social science evidence methods to build cases of sexual violence therefore supplement the already existing types of evidence that are currently used in international criminal proceedings.

Victims of Sexual Violence’s Willingness to Testify in Court

Victims of sexual violence, like other victims of international crimes, have in the past faced intimidations and threats as a consequence of their (planned) witness testimony in international tribunals.21 More so than other victims of international crimes, victims of sexual violence may also experience stigmatization, isolation, and rejection by their spouse, family, and community if they find out what happened to them.22 For victims of sexual violence this may take the form of being ridiculed; becoming unmarriageable; having children of rape, who, moreover, become the society’s laughing stock; being discriminated because of HIV/AIDS status; and even running the risk of being convicted of adultery or some other crime.23 In the case of male sexual violence, where shame and stigma is sometimes even more prevalent than for women who survived sexual violence, the possibility of being prosecuted for homosexuality is sometimes even present.24 In still too many societies, rape victims (women and men) are looked upon as if they did something wrong, thereby placing the guilt and shame on the victim instead of on the perpetrator. Stigmatization, isolation, and rejection by society are thus good reasons for victims of sexual violence, often more so than for other victims of international crimes, not to come forward and testify at all before international (and national) tribunals, especially when protective measures, such as confidentiality measures, would turn out not to work in practice.25 Yet, in those cases, where victims of sexual violence wish to testify and confidentiality measures will not guarantee their protection in terms of safety, dignity or privacy, recourse can also still be taken to other protective measures, such as that of anonymity and relocation.26 Furthermore, also other innovative ways of dealing with witness testimony can be considered, such as using more written statements of victims of sexual violence in lieu of oral testimony, but also minimizing the number of victims to establish certain facts.27

Apart from this, we should, however, keep in mind that there are nevertheless many victims of sexual violence who want to testify in court, with or without protection measures made available to them. In fact, some victims of sexual violence do not wish for confidentiality measures to protect their identity at all, because they do not mind others to hear their story; rather, they want others to know what happened to them. Already in 1999, Patricia Viseur Sellers, at the time ICTY Prosecutor and Gender Legal Advisor, said: “most witnesses request confidentiality. … Meanwhile, some women want to be identified and seen, not only by the defendant but also by the public. ‘What do I have to be ashamed of an why should I hide?’ they might ask.”28 In May 2012, in the Bemba Gombo trial, a victim of two gang rapes by soldiers of the MLC testified about her ordeals.29 She testified under pseudonym, but in full public view. On the question asked by her lawyer why she decided to take part in the ICC proceedings, the witness said that it was an opportunity to tell the Court and the whole world what she had suffered. She said: “I was treated like an animal, and I cannot live normally. I was a woman with dignity, but I lost my dignity. I suffered inhuman treatment.”30 As a result, she has been stigmatized by her community, is referred to as a wife of Banyamulenge [Congolese soldiers] and sometimes people spit on her, she told the court.31 Despite of all of this, she chose not to keep silent. Her time in court provided her, and many other victims of sexual violence who testified before international criminal tribunals32, with a space to tell the world the truth of what happened to her, recognition for the harm committed against her, and therefore a sense of justice.33 When done under the right circumstances, testifying in court—but also participating in court to express their views and concerns—can indeed be an empowering experience for victims.34 Furthermore, it rightfully contributes in openly taking away the shame and stigma that perpetrators of sexual violence and others so often incur on the victims.

The still often heard and unfounded claim that victims of sexual violence simply do not wish to testify is therefore not true and such upheld convictions rather keep the sexual violence committed in conflict situations under-documented and under-represented in cases before international criminal tribunals.35 The key for successful prosecutions of sexual violence before international tribunals is to include sexual violence crimes in the indictments of the Prosecutor from the start, as amending the charges later on in the proceedings is not always accepted as a possibility by the judges (mainly because this has, at times, been held to violate the rights of the accused to adequately prepare his or her case), as recently witnessed in the ICC’s Lubanga case. Such a top-down and well communicated approach to all levels within the court requires that the investigation is open to evidence of sexual violence crimes, that the investigators prepare themselves with as much information as possible in advance of the field investigation (including cultural aspects of the region and victims), and, that throughout the whole process, a checklist of elements of crimes to be proven and coordination between investigators and prosecutors, need to be relied on.36 Furthermore, while gathering the evidence, the needs of the survivors of sexual violence need to be prioritized to the extent possible so that they are approached with respect and care. The gathering of evidence of sexual violence crimes does not pose any additional legal burden and need not pose any additional investigative challenge when compared to other international crimes.37 This also means that people high up in the command, who may not have committed the rapes themselves, but have been instrumental in orchestrating the campaign of rape, can be held responsible for the rapes on the basis of the various liability modes, just like they could be—and are—held responsible for any other crimes.38 It is therefore necessary to be open to a broad range of potential evidence in cases of sexual violence, which could come from direct victims of sexual violence and/or from other sources as outlined above. Sara Sharratt stated that in her interviews with judges, prosecutors, investigators, and victim and witnesses unit members of the ICTY and the Bosnian War Crimes Court (BIH) many of them in fact accept rape myths, hold misogynistic views about women, and are ambivalent and uncomfortable when dealing with rape and sexual violence.39 These views therefore permeate the investigations, proceedings and judgments of international criminal tribunals. The same could be said for sexual violence against men where lack of knowledge or not being comfortable with the issue leads to undercharging and prosecution of these crimes. To overcome such attitudes, it is therefore recommended that a mandatory training in gender competence and psycho-social capacity building should be obligatory for all those involved in the judicial system.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    The Colloquium was organized by the Center on Law and Globalization, a program of the University of Illinois College of Law and the American Bar Foundation; The Grotius Centre for International Legal Studies, Campus The Hague of Leiden University; and The International Victimology Institute Tilburg (INTERVICT) and the Department of Criminal Law, Tilburg Law School. The second Colloquium took place in The Hague on 7-8 April 2011 and was centered around the theme of “Systematic Sexual Violence and Victims’ Rights.” See resources of these events, available online (last visited 12 June 2012) and the forthcoming book entitled Prosecuting Sexual Violence as an International Crime: Interdisciplinary Approaches (Antwerp: Intersentia 2012). Note furthermore that in this contribution most of the time the term “victim(s)” is used, rather than “survivor(s)”, to stick to the terminology commonly used in the ICC Rome Statute and Rules of Procedure and Evidence, whereas in most occasions in this contribution the term “survivors” would be the better term of the two as it better encompasses the agency of the individuals concerned.

  2. 2.

    See Press Release Center on Law & Globalization, Social Science Research Seen to Play Key Role in Building Institutions of International Criminal Law, 22 June 2009, available online (last visited 12 June 2012).

  3. 3.

    See keynote address by Navi Pillay, Sexual Violence: Standing by the Victim; during the first Hague Colloquium on “Sexual Violence as an International Crime” (June 2009), available online (last visited 12 June 2012).

  4. 4.

    The rights of the accused are laid down in Article 67 of the Rome Statute in which it is stated that the accused is entitled to a public hearing, a fair hearing conducted impartially and certain minimum guarantees, including: “(b) to have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused’s choosing in confidence; … (e) to examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her…”

  5. 5.

    See Women’s Initiative for Gender Justice, Legal Eye on the ICC, March 2011.

  6. 6.

    John Hagan, Richard Brooks, and Todd Haugh, ‘Reasonable Grounds’ Evidence Involving Sexual Violence in Darfur, 2010 Law & Social Inquiry 35(4), pp. 881-917.

  7. 7.

    Id., p. 890.

  8. 8.

    Lynn Lawry, Kirsten Johnson, and Jana Asher, “Evidence-Based Documentation of Gender-Based Violence”, in: Anne-Marie de Brouwer, Charlotte Ku, Renée Römkens, and Larissa van den Herik (eds.), Prosecuting Sexual Violence as an International Crime: Interdisciplinary Approaches, Antwerp: Intersentia 2012 (forthcoming).

  9. 9.

    Id.

  10. 10.

    Chen Reis, “Ethical, Safety and Methodological Issues Related to Collection and Use of Data on Sexual Violence in Conflict”, in: Anne-Marie de Brouwer, Charlotte Ku, Renée Römkens, and Larissa van den Herik (eds.), Prosecuting Sexual Violence as an International Crime: Interdisciplinary Approaches, Antwerp: Intersentia 2012 (forthcoming).

  11. 11.

    See also: Sandesh Sivakumaran, “Prosecuting Sexual Violence against Men and Boys”, in: Anne-Marie de Brouwer, Charlotte Ku, Renée Römkens, and Larissa van den Herik (eds.), Prosecuting Sexual Violence as an International Crime: Interdisciplinary Approaches, Antwerp: Intersentia 2012 (forthcoming).

  12. 12.

    Lynn Lawry, Kirsten Johnson, and Jana Asher, “Evidence-Based Documentation of Gender-Based Violence”, in: Anne-Marie de Brouwer, Charlotte Ku, Renée Römkens, and Larissa van den Herik (eds.), Prosecuting Sexual Violence as an International Crime: Interdisciplinary Approaches, Antwerp: Intersentia 2012 (forthcoming).

  13. 13.

    Id.

  14. 14.

    Id.

  15. 15.

    See Press Release, Center on Law & Globalization, Social Science Research Seen to Play Key Role in Building Institutions of International Criminal Law, 22 June 2009, available online (last visited 12 June 2012).

  16. 16.

    Xabier Agirre Aranburu, Sexual Violence beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases, 2010 Law & Soc. Inquiry 35(4), p. 856.

  17. 17.

    Id., p. 856.

  18. 18.

    Id., pp. 875-876.

  19. 19.

    The OTP Rape Database was prepared by Binaifer Nowrojee and Mrs. Harvey who conducted a survey of 405 statements of Rwandan rape victims and witnesses of rape taken by OTP investigators between 1995-2002 (this was a sample of a larger number of rape statements collected by the OTP). The witness statements were analysed with respect to: the date and location of the rapes; the profile of the victims; the perpetrators; the forms of sexual violence (rape, gang-rape, sexual slavery, rape with aggravated violence); statements of intent to target women on the basis of ethnicity; and consequences of rape.

  20. 20.

    See Patricia Viseur Sellers, “Foreword”, in: Anne-Marie de Brouwer, Charlotte Ku, Renée Römkens, and Larissa van den Herik (eds.), Prosecuting Sexual Violence as an International Crime: Interdisciplinary Approaches, Antwerp: Intersentia 2012 (forthcoming); Terence C. Halliday, Introduction: Symposium on Systematic Sexual Violence and International Criminal Law, 2010 Law & Soc. Inquiry 35(4), p. 835-838.

  21. 21.

    See e.g., Hirondelle News Agency, Survivors Accused 14 Defence Investigators of Genocide Crimes, 25 March 2002; and Binaifer Nowrojee, “Your Justice is Too Slow”: Will the ICTR Fail Rwanda’s Rape Victims?, UNRISD Occasional Paper Series, No. 10, Geneva, 2005. Note also that many victims have died as a consequence of the sexual violence or other violence inflicted upon them.

  22. 22.

    See e.g., Marie Immaculee Ingabire, The Rape of Tutsi Women: A Weapon of the 1994 Genocide, April 2004 (filed under ICTR-95-1B-T, Muhimana case, 27 April 2004); Sandra Ka Hon Chu, Anne-Marie de Brouwer, and Renée Römkens, “Survivors of Sexual Violence in Conflict: Challenges in Prevention and International Criminal Prosecution”, in: Rianne Letschert, Roelof Haveman, Anne-Marie de Brouwer, and Antony Pemberton (eds.), Victimological Approaches to International Crimes: Africa, Cambridge/Antwerp/Portland: Intersentia 2011, pp. 535-539.

  23. 23.

    See, for the latter example, e.g., The Guardian, Iman al-Obeidi Faces Criminal Charges over Libya Rape Claim, 29 March 2011. Available online.

  24. 24.

    Sandesh Sivakumaran, Lost in Translation: UN Responses to Sexual Violence against Men and Boys in Situations of Armed Conflict, 2010 Eur. J. Int’l L. 18(2), 253-276.

  25. 25.

    See for the full spectrum of protective measures available to victims of sexual violence before the ICC and how they relate to the rights of the accused: Anne-Marie de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR, Oxford/Antwerp: Intersentia 2005, pp. 231-282. Note furthermore that there can naturally be also other reasons why victims of sexual violence choose not to testify in court, such as trauma.

  26. 26.

    Id., pp. 248-257, for an elaboration of the arguments.

  27. 27.

    See e.g., ICTR, Best Practices Manual on the Investigation and Prosecution of Sexual Violence Crimes in Situations of Armed Conflict, 2008, available online (last visited 12 June 2012); and Marie-Bénédicte Dembour and Emily Haslam, Silencing Hearings? Victim-Witnesses at War Crimes Trials, 2004 Eur. J. Int’l L. 15(1), pp. 151-177.

  28. 28.

    Sara Sharratt, “Interview with Patricia Viseur Sellers, Legal Officer on Gender Issues”, in: Sara Sharratt and Ellyn Kaschak (eds.), Assault on the Soul: Women in the former Yugoslavia, New York/London/Oxford: The Haworth Press 1999, p. 70.

  29. 29.

    Wakabi Wairagala, Victim Tells Bemba Trial She Was Gang Raped by Congolese Soldiers, 1 May 2012, available online (last visited 12 June 2012).

  30. 30.

    Id.

  31. 31.

    Id. It should be recalled here that at all times the Court has an active role in informing the potential victim-witnesses of the confidentiality measures available and possible risks involved when testifying (see also Article 87(1) of the Rome Statute).

  32. 32.

    For e.g. an overview of the many victims of sexual violence who choose to testify before the ICC in the Katanga and Chui case, see Women’s Initiatives for Gender Justice, Gender Report Card 2010, pp. 165-177.

  33. 33.

    See e.g., Marc Groenhuijsen, “Victims Rights and the International Criminal Court: The Model of the Rome Statute and its Operation”, in: Willem van Genugten and Michael Scharf (eds.), Criminal Jurisdiction 100 Years after the 1907 Hague Peace Conference, The Hague: T.M.C. Asser Press, 2009, pp. 300-309, on the importance of the role for victims and their rights in criminal proceedings.

  34. 34.

    See e.g., Nicola Henry, Witness to Rape: The Limits and Potential of International War Crimes Trials for Victims of Wartime Sexual Violence, 2009 IJTJ 3, pp. 114-134.

  35. 35.

    The initial claims of ICTR staff that rape victims just did not want to give their testimonies was already proven wrong in the early days of the Tribunal’s existence when human rights researchers conducted hundreds of interviews with survivors of sexual violence of the genocide in Rwanda in a sensitive manner where survivors felt comfortable to talk. See Allison Cole, Myth-Buster: Rwanda Tribunal Judgment Establishes New Prohibitions of Wartime Rape, 10 April 2012, available online (last visited 12 June 2012). For the report with interviews, see Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath, September 1996.

  36. 36.

    Maxine Marcus, “Investigation of Crimes of Sexual and Gender-Based Violence Under International Criminal Law,” in: Anne-Marie de Brouwer, Charlotte Ku, Renée Römkens, and Larissa van den Herik (eds.), Prosecuting Sexual Violence as an International Crime: Interdisciplinary Approaches, Antwerp: Intersentia 2012 (forthcoming); and ICTR, Best Practices Manual on the Investigation and Prosecution of Sexual Violence Crimes in Situations of Armed Conflict: Lessons from the International Criminal Tribunal for Rwanda, 2008, available online (last visited 12 June 2012).

  37. 37.

    Marcus, supra note 36.

  38. 38.

    On this issue, see e.g., Michelle Jarvis and Elena Martin Salgado, “Future Challenges to Prosecuting Sexual Violence under International Law: Insights from ICTY Practice“, in: Anne-Marie de Brouwer, Charlotte Ku, Renée Römkens, and Larissa van den Herik (eds.), Prosecuting Sexual Violence as an International Crime: Interdisciplinary Approaches, Antwerp: Intersentia 2012 (forthcoming); and Linda Bianchi, “The Prosecution of Rape and Sexual violence: Lessons from Prosecutions at the ICTR, in: Anne-Marie de Brouwer, Charlotte Ku, Renée Römkens, and Larissa van den Herik (eds.), Prosecuting Sexual Violence as an International Crime: Interdisciplinary Approaches, Antwerp: Intersentia 2012 (forthcoming). See also the recent ICTR Judgment in Prosecutor v. Karemera et al., where the two accused (a former Minister of the Interior and the President of the governing political party) were held responsible for rapes which they oversaw during the 1994 genocide, but did not personally commit. See for a commentary: Susana SáCouto, Prosecuting Sexual Violence before International Tribunals: The ICTR’s Karemera Judgment, 17 May 2012, available online (last visited 12 June 2012). Other important judgement in which high-level officials were held responsible for rape which they did not personally commit but oversaw include Plasvic (ICTY), Bagasora (ICTR), Krajisnik (ICTY), and Taylor (Special Court for Sierra Leone).

  39. 39.

    Sara Sharratt, Gender, Shame and Sexual Violence: The Voices of Witnesses and Court Members at War Crimes Tribunals, London: Ashgate 2011.

Hagan Avatar Image John Hagan, Ph.D. John D. MacArthur Professor Northwestern University & American Bar Foundation

The ICC can sustain a conviction for the underlying crime of mass rape without testimony from individual victims of mass rapes, basing its proof instead on sample survey interviews including witness reports of mass rapes and sexual victimization gathered and aggregated in statistical analyses by social scientists.

Proof of mass rape does not require individual testimony by identified mass rape victims. The systematic collection and aggregation of witness reports is more relevant to establishing the planning, occurrence, modus, and effects of mass rape.

Summary

The underlying crime of mass rape can be prosecuted using scientific evidence collected by social scientists from witnesses who report their knowledge of the mass rapes in question. Mass rape is distinguished from individual rape by the role of multiple perpetrators and the sexual victimization of many individuals. The same individual may be victimized by multiple perpetrators, multiple perpetrators may victimize the same or different individuals, and the individuals may not be able to identify any or all of the perpetrators who victimize them. The essence of mass rape is its scale and patterning. Anonymous and confidential survey interview evidence based on probabilistic sampling and the aggregation of reports can be used to establish both the scale and the pattern of mass rape. This evidence can establish the planning, the modus, and the effects of mass rape, without requiring individuals to reveal their identities or to testify about their own victimization. Indeed, essential evidence of mass rape may be less likely to result from the personal testimony provided with the identification and courtroom appearances of particular rape victims than from the scientific assessment of systematically collected and aggregated accounts of witnesses of rapes reported by and about many unidentified individuals who may or may not themselves have been raped.

Thus social scientific collection of evidence of mass rape based on probabilistic sampling of effected areas or communities achieves its evidentiary value from the aggregation of anonymous and confidential witness reports. Individuals who observe or are themselves victims of mass rape can through survey interviews bear anonymous and confidential witness to their own rapes and/or the rapes of others. The essential point is that the evidence of the scale and patterns involved in the planning and modus of mass rape derives from the aggregation of witness evidence rather than from the individuality of personal victim testimony.

The predictable legal objection to sample survey evidence of the reported rapes of others is its hearsay aspect. However, international criminal law allows hearsay evidence and has provided special procedural accommodations to insure anonymity and confidentiality for witnesses testifying about sexual violence. The concern in international criminal law is similar if not identical to that in social science research—that is, with the reliability and validity of the indirect or “second hand” sourcing of witness reports. International judges, like survey scientists, evaluate and exclude hearsay reports if they believe them to be unreliable or invalid.

Professional survey researchers can apply statistical procedures to survey interview reports by witnesses for the purpose of assessing their reliability. For example, clusters of reports can be gathered following randomized sampling from potential individual witnesses located within and across neighborhoods, villages, and communities where mass rape is indicated or suspected to have occurred. These systematically collected reports can provide evidence of planning and modus. For example, they can include information about the roles of government uniformed and non-uniformed attackers and the sequence of events leading up to and following the attacks, including the occurrence of rapes as part of the attacks. The reports can then be analyzed to determine the extent to which there is variation in responses from these individuals within as compared to between the settings in which they occur. Reports can be deemed reliable when they are consistent with one another within identified areas. Thus witness reports, when collected with appropriately systematic probabilistic methods, can be analyzed as a means of generating corroborative evidence.

So proof of mass rape does not require individual testimony by identified mass rape victims. The systematic collection and aggregation of witness reports is more relevant to establishing the planning, occurrence, modus, and effects of mass rape.

Argument

The argument can be illustrated with a specific example. The research I cite for this example focuses on sexual violence in Darfur and builds on my publications with co-authors in Science, the American Sociological Review, the American Journal of Public Health, the British Journal of Sociology and my co-authored book on Darfur and the Crime of Genocide. The data comes from a U.S. State Department supported study—the Atrocities Documentation Survey [ADS]—conducted during a peak in Darfur reports of mass atrocities in July and August of 2004. The study was undertaken at the direction of Secretary of State Colin Powell and included 1136 refugees who witnessed and experienced attacks in Darfur before fleeing to Chad.

The ADS used a randomized multi-stage probability sample to collect interviews with refugees in 20 sites in Chad. The UN used lettered grids to sub-divide the camps into sectors. The ADS team identified all sectors and sampled from them in proportion to size and ethnicity. The State Department’s Bureau of Intelligence and Research developed the survey interview instrument used by the ADS team with input from international law advisors. Using cartographers and translators, interviewers were able to locate 90 percent of the villages from which the 1136 refugees fled. We were thus able to locate 932 respondents clustered in 22 originating villages.

We read each interview narrative and coded the reported attacking groups as Arab Janjaweed milita, Sudanese Government Forces, or combined Sudanese Government and Janjaweed forces. We distinguished these forces by their reported clothing and equipment. About two thirds of the attacks were joint Sudanese and Janjaweed operations, which we compared to the other separately organized operations. The coding of when the forces joined in their attacks was important to establishing the responsibility of the Sudanese government command responsibility for mass atrocities. The victims and witnesses of the attacks self-identified themselves as members of Masalit, Zaghawa, Fur and other non-Arab African tribes.

Our analysis revealed that there were two peak waves of attacks in Darfur which reliably coincided with news media accounts of the peak periods involving violent and health-related deaths and displacement in Darfur. The first period of these attacks, in the summer of 2003, was during the time when the Office of the Prosecutor indicated Sudanese Government Deputy Minister Harun visited Darfur and led a major militia recruitment drive with local leaders. Harun spoke at meetings across Darfur, repeating the message that he held the power “to kill or forgive whoever” he wanted and that he possessed the government granted authority to “kill three-quarters of Darfur in order to allow one quarter to live.”

The second wave of attacks was notably more violent and destructive than the first—in terms of the organized attacks on not only the non-Arab African villagers and farmers, but also on the food and water based infrastructure of their farms and villages, making it impossible to sustain group life in most if not all of these settings. It was during this second wave of attacks, in December of 2003, that President Al-Bashir vowed to “annihilate the Darfur rebels.” Very few of the surveyed refugees reported rebels living or staying in their areas.

Our measurement approach involved using a section from each survey that recorded incidents of victimization. Respondents reported attacks on themselves, their families, and their settlements, which involved bombing, killing, rape, abduction, physical and sexual assault, property destruction, and theft. Each respondent therefore reported for him or herself together with his or her settlement. Our particular interest was in systematic counts of the number of sexual attacks reported by the respondents. However, we also created a total victimization score based on the common law seriousness of the incidents reported for attacks on the settlements. In past tribunal cases, commanders have been found responsible for the ‘incidental murders and rapes’ that were identified as ‘natural and foreseeable consequences of an ethnic cleansing campaign.’ We aggregated reports of specific incidents experienced or witnessed by each respondent in the settlement.

We defined sexual victimization as including rape, sexual assault, acts of sexual molestation such as insertion of foreign objects into the genital opening or anus, and sexual slavery. These are constituent elements of mass rape. Four percent of the full sample and seven percent of women refugees reported personal sexual victimization, which corresponds closely to reported prevalence of this victimization in other conflict zones such as Sierra Leone. Nearly a third of the Darfur refugees (29.1%) indicated that other villagers beyond themselves were sexually victimized during attacks. Statistical analysis of self and other reports revealed no evidence of systematic bias in overall settlement reporting of sexual victimization. Hierarchical linear models were used to generate reliability scores that separated the variation of “others” reports of sexual victimization within and between villages. The resulting reliability score was .906 on a scale from zero to one, indicating very high precision at the village settlement level of analysis. This high score eliminates beyond statistically reasonable doubt concerns about the unreliability of the hearsay nature of the ADS evidence of sexual victimization in residential settings.

Our analyses revealed that sexual victimization was most likely to occur when Sudnese Government forces attacked villages along with Janjaweed militia and in conjunction with other atrocity crimes. The most intuitive way in which we have demonstrated the overlapping nature of sexual victimization and other forms of mass atrocity has involved mapping the Darfur villages where the refugees experienced attacks. The maps reveal that the villages ranking highest in total victimization on our common law seriousness scale were also usually the same villages ranking highest in sexual victimization. This overlapping of sexual and other forms of violence is consistent with the finding in the ICTR Akayesu case in Rwanda. The Akayesu case decision found that rape is “an integral part of the process of destruction.” The ICTY Kunarac, Kovac & Vokovic case also recognized rape as part of crimes against humanity.

Overall, the survey data we have analyzed involving Darfur refugees who fled to Chad supports at least four conclusions about sexual victimization in this conflict:

  1. That among non-Arab African Darfuris who fled to Chad refugee camps, there was consistency and reliability in witness reporting of sexual violence in residential settings, beyond reasonable doubts about hearsay bias;
  2. That there was substantial overlap in sexual victimization with other forms of mass atrocity in residential settings in Darfur;
  3. That Sudanese Government forces joined with Janjaweed militia in playing a large and disproportionate role in the attacks that included sexual victimization in Darfur villages;
  4. That two waves of attacks that included sexual victimization in 2003 and 2004 coincided with threats of annihilation made by President Al-Bashir and the mobilization of forces by Deputy Minister Harun for the purposes of displacing non-Arab Africans from Darfur.

These findings encourage the opinion that the ICC can sustain a conviction for the underlying crime of mass rape without testimony from individual victims of mass rapes, basing its proof instead on witness reports of sexual victimization including mass rape gathered and aggregated in statistical analyses by professional social scientists.

MacKinnon Avatar Image Catharine A. MacKinnon, J.D., Ph.D. Professor of Law Michigan Law; Harvard Law

Victimless Trials for Mass Rape at the ICC Promote Rape Stigma, Making Them Undesirable, Inappropriate, and Regressive for International Justice. The Fact That Rape Stigma Always Takes Culturally Specific Forms Makes it No Less Antithetical to Gender Equality Principles.

Hiding behind solicitude to avoid rape stigma, whether couched as culture or worries about fair trial or otherwise, is actually complicity in the long-standing cross-cultural institutionalized bias that has long kept rape cases from being prosecuted at all and made winning them uniquely difficult.

Summary

Just as rape victims in international conflicts finally stand poised to get their day in court, the prospect of proceeding without them is raised. There is no good reason for closing the door to the international courthouse to mass rape survivors who wish to testify concerning their own violations. Hiding behind solicitude to avoid rape stigma, whether couched as culture or worries about fair trial or otherwise, is actually complicity in the long-standing cross-cultural institutionalized bias that has long kept rape cases from being prosecuted at all and made winning them uniquely difficult. International human rights principles of gender equality call for confrontation and change in such convenient reflexes rather than capitulation to them.

One expression of, and contribution to, this problem at the ICC is an ill-conceived and regressive recent Trial Chamber decision that precludes substantive preparation of witnesses by prosecutors. This decision cuts survivors off from the support of lawyers even as it hamstrings legal development by cutting lawyers off from the expertise of survivors. Precluding pretrial preparation makes the development of trust between prosecution and witnesses difficult, even impossible, which in turn contributes to making victim participation in trials into a risk to be avoided.

Some rape survivors will always want to speak out, given appropriately supportive conditions. All entrenched legal vehicles for anti-rape-victim animus, along with the views of authorities in some communities that the rape victims they purport to speak for should not testify, should be squarely repudiated rather than presented as local accountability. The dignity and worth of rape survivors should be affirmed and supported in and out of court, their stories told by them.

Argument

To be clear, the question for discussion raises for consideration the prospect of trying mass rape cases “without testimony from victims”(emphasis added)—not minimizing their numbers hence their exposure with attendant security and other life risks, not choosing the strongest testimony or most representative facts, not supporting the testimony of survivors with other evidence to show (for instance) the widespread, systematic, war or conflict-connected, or genocidal nature of their experiences of sexual atrocity. This question seeks to contemplate a policy that tells survivors who want to participate in public trials of those alleged most responsible for their victimization, and the world, that their accounts are not wanted and will not be heard in court.

Why is this question being asked? Not because of traditional criminal law, which treats victims as grist for its mill and little else, a tradition progressively superseded by the Rome Statute’s vision of victim participation as a standard feature. The Rome Statute arguably envisions its prosecutions as a tool, among others, for the vindication of the human rights of the victims of the crimes it prohibits.1 By its example, it also has the potential to change social dynamics surrounding legal proceedings for sexual atrocities in domestic as well as global settings.

Providing a forum for the voices of survivors has been integral to the Statute since its inception. The victims of rape in conflicts have been especially prominent and formative in motivating this process. Women victims of sexual abuse have driven much of the sensitivity to, and resulting focus upon, victims and their voices in the international order. In its relatively recent pursuit of real justice for gender crime—a new legal concept bringing together the long neglected and ineffectually pursued (if at all) crimes of rape, sexual slavery, sex trafficking, and genital mutilation among others2—international law is in particularly urgent need of the information and expertise that survivors of these atrocities uniquely possess. Having ignored them for millennia, it is not because law already knows everything it needs to know about this form of abuse that its victims are being considered potentially expendable.

The possibility of victim-free trials is not being considered because mass rape survivors, or NGOs speaking for or about their interests, are pressuring the Court to proceed without them. Far from it.

Nor is this question being considered out of sensitivity to spare victims of rape the stigma of public victim status, although this rationalization may be offered. This stigma attaches first when rape victims are raped, then is magnified when they are seen by others through the lens of rape myths, which historically have been built into the laws of many jurisdictions and the norms of many cultures. The stigma of rape is first the creation of abusers, then an attribution to survivors by communities whose rules buy into, instead of countering, the perpetrators’ perspective.

Part of the point of public accountability for rape victims—justice both done and seen to be done—is to resist and transform that stigma, which includes the interconnected notions that rape victims are damaged, dissolute, dirtied, and disreputable and should not be seen or heard and cannot be believed. These notions are a time-honored form of gender bias. Rape stigma exploits shame and destroys dignity on the basis of sex. No one worries about publicly standing with victims of other violent crimes within the jurisdiction of the Court, nor considers prosecuting without their victims when they are available to testify. For those other crimes, the stigma rightly attaches to the perpetrators. Surviving victimization by other forms of torture is often a badge of honor rather than dishonor.

Prosecutors do not protect rape victims, or ultimately their communities, by excluding them from a voice in trials against those responsible for their victimization. They patronize them. A victim can always choose not to take part in an ICC prosecution. The threshold choice belongs to her or him. The choice to go public, or otherwise to try to control how one is seen and as possible its consequences, is first of all for victims to make. If the conditions are right—something trained investigators as well as prosecutors and other representatives of the organs of justice are responsible for insuring—someone will always want to speak in public about their abuse.

Once a survivor, fully informed of the risks, has decided to be open to participation in an ICC case, prosecutors certainly need to be sensitive to managing potential stigma and aware that they are part of a process of opposing it. This stigma can include risk of death, retaliation against or by family members, loss of the possibility of marriage which can mean starvation, and other consequences including shunning and other forms of mobilization of shaming. Authorities at all levels need to stay accountable to survivors, for which purpose they need to remain in constant communication with them. Preemptively shutting the courthouse door to victim participation in the adjudication of accountability for their own injuries, however, thereby substituting prosecutorial policy or tendency for a survivor’s decision, is not a mechanism for stigma control. It is a technique for silencing that promotes rape stigma by authoritatively conveying that these victims are too tainted by their victimization to belong in a court of law and should not be heard in their own voice. It institutionalizes shame.

Certainly everything possible to enhance rape survivor credibility, both in and out of court, needs to be pursued. Evidence that supports victim testimony, forensic and otherwise (however difficult it can sometimes be to acquire) needs to be gathered and presented in court. With mass rapes, no one contemplates that evidence of each and every rape must come from a survivor’s mouth. Prosecutors can fight harder for victims who so desire to testify anonymously, for example, or for an order precluding media identification. Many rape victims are as afraid of the media and attendant reputational assault as they are of more rape. Almost no victim of mass rape is raped as who she individually is. Her identity, other than her sex and ethnicity, was irrelevant to her violators and is not essential to the fairness of criminal proceedings. Many other means are available to verify and challenge the veracity of her account.

Make no mistake: it is not because of a desire to shield rape victims from the potential negative effects of speaking about their violation in court that victimless prosecutions for mass rape are being considered for the ICC at this time.

So, again, why is this question being asked? The first time international prosecutors cried stigma in connection with rape cases—at least the first time I was aware that rape trauma was being used as an excuse for inaction against rapists and prosecutors started hiding behind rape victims instead of representing them—was when the ICTY used it as the reason it was bringing almost no rape prosecutions in the Bosnian conflict. This was the conflict that was the breakthrough in decisively establishing in the public mind that rape had been a tool in that aggression, and opened the question of the place of rape of women and men in men’s conflicts with each other for law and history. Poor poor raped women—too traumatized to go public about their rapes, especially women from those backward conservative Muslim communities.

What actually occurred in the Bosnian situation was a far cry from this cover narrative. Bosnian survivors of rape were initially eager to cooperate with the tribunal that they conceived and worked to establish. Then, for reasons yet to be clearly explained or established, they found that few charges were being brought for genocide in cases of rape or much else. Most of those in the survivor community, clear that they had been through a genocide—an attempt to destroy peoples as such3—including in being raped, realized that the ICTY was engaging in genocide denial and ceased to trust it. The prosecutors at the tribunal were told this. Some survivors who ventured there also reported back that they had run into relatives of their perpetrators as translators and the like. So a conflict in which rape was a principal tool of the aggression, and the first in history in which the victims had established its existence as a weapon in conflict in the public mind, pursued very few prosecutions for rape because the survivor community largely shunned the Tribunal.4 Because the ICTY had virtually no victims to present, they put the onus for their absence on the victims themselves.

The Foča case is a partial exception.5 There, a small group of women worked with prosecutors and won. However, despite clear communication by some of those same victims that what they had experienced was a genocide, their rapes were prosecuted instead as sexual slavery. This legal model fits many situations, notably that of African Americans in the United States, but was a poor fit for the Bosnian genocide.

Apart from this case, purported solicitude for victims’ fears of going public and traumatized reticence about rape, pyramiding on and promoting orientalist misconceptions about Muslim culture—as if all cultures do not stigmatize rape victims, each in its own specific way, as Muslim cultures are at once singled out as unique in this respect and suddenly to be respected in this instance—continued to be used by the ICTY as an excuse for the lack of rape prosecutions. This, despite this rationalization being embarrassed by a civil suit brought by the survivors themselves for (inter alia) genocide against Radovan Karadzic in New York City, in which Muslim (as well as Croat) women testified in open court in detail about their rapes, complained of inter alia as genocide, and were awarded a total of $745 million6 by a New York jury.

In my experience, most rape victims want to tell what was done to them and have something done about it. They feel that if they fight back, some day women will win this war against women. The only question is creating the conditions that make their participation possible. One essential factor in making their participation possible is trust in the institutions and individuals in the legal process. So far, victims continue to beat a path to the door of the ICC, participating in its proceedings in droves, whether or not presented in court by the Prosecution.

In light of this analysis, the question posed here might be rephrased: How did victims of mass rape, those who directly witnessed and experienced first-hand the crime being prosecuted, come to seem dispensable or inconvenient, such that proceeding without them, when they wish to testify, is being considered?

One answer is Lubanga. In the ICC’s first case to go to trial, every single child victimized as a child soldier who was put on the stand by the Prosecution was systematically shredded by the defense. Every shadow cast on their credibility was then embraced by the two-man majority decision in the Trial Chamber decision.7 The Prosecution was unable effectively to defend them.

One factor in this outcome, which had the consequence that every child soldier who testified about his or her victimization was eliminated from the proceeding for purposes of conviction,8 is prior decisions in the case on so-called witness proofing,9 a misleading term used to characterize substantive preparation of a witness for trial by prosecutors. With such preparation effectively precluded, evidence used to destroy victim credibility could not, for example, be anticipated and first introduced by the prosecution, because the conversations needed to elicit the information were prohibited. Nor could such facts later be explained by the survivor, because the prosecution was not permitted the contact necessary to develop such an explanation. Nor could such issues be addressed by experts, say with cultural evidence, because the need for such testimony has to be known in advance. Nor were prosecutors able to connect effectively with the children in advance or prepare them in any depth for the inevitable assault of cross examination, predictably shattering even to the best prepared survivors of trauma.

The rule adopted on witness preparation was justified by purported concern for “the truth.”10 The Trial Chamber worried that if the Prosecution could prepare the witness in substance, the truth would not emerge at trial. In reality, the opposite is true, not uniquely but especially powerfully for survivors of crimes of sexual violence. Survivors, which include child soldiers, many of whom were sexually victimized both by being raped and by being forced to rape, are by definition traumatized, including on the basis of their gender. Lacking a supportive relationship with counsel, the survivor, having been teleported into a completely unfamiliar environment, readily becomes utterly unable to tell what actually occurred. The truth cannot emerge under these conditions.

Rest assured that none of the legal knowledge that has made possible the creation of gender crime as understood today could have been achieved under the prohibitions on meaningful detailed preparation and close lawyer-client relationship that are prohibited by this decision. Absent the ability of prosecutors to learn the case and the client close-up and in depth and detail, rape accounts will predictably be swamped by rape myths.

The approach adopted in this decision—not strictly precedent under ICC rules but of course continuingly influential11—derives from the domestic law of England and Wales (one of the judges being from the UK). Whether the domestic law of any jurisdiction is appropriate in the international criminal law setting, which by definition will center on victims of horrific intentional atrocities on a massive scale, was not discussed. The crippling restrictions on the lawyer-victim relationship prescribed in this preliminary decision in Lubanga have no antecedents in any other international tribunal.

Even the rule adopted relied on an inapt, flawed, overly broad, and outdated interpretation of UK law. The ICC “witness proofing” decisions failed to analyze the distinct roles of solicitors and barristers in the English system, in which witnesses may be substantively interviewed by solicitors while the rules referred to (if incorrectly) by the ICC judges, in a system that has no such distinction, apply only to barristers, who present witnesses in court. Nor did the principal English decision used to support the rulings on this subject12 did not specifically address the extent of preparatory discussions between counsel and witnesses that did not amount to coaching or rehearsing.

Moreover, recent British standards are changing to permit more contact and provide greater flexibility in witness preparation than the ICC rulings acknowledged. The Bar Standards Board’s recent rules on witness preparation practices acknowledge that varying considerations—one would think traumatized status of victims of mass rape in conflict might be one—may apply in discussions of the substance of the evidence with counsel who is to present the victim in court.13 The Crown Prosecution Service Code for Pre-Trial Witness Interviews in the UK permits the type of contact and witness interviews that the ICC’s decisions so far prohibit.14 Not to mention the fact that existing legal procedures in domestic systems were not in general shaped by taking sexual atrocities seriously. This background has consequences. A recent study found that less than 6% of reported rapes in England produce convictions.15 Surely even the accurate rules of such a jurisdiction should be approached with caution before being emulated internationally.

So the conviction of Mr. Lubanga for conscripting and using child soldiers in his militia rests on everything but the testimony of his victims. Insiders—adult men who also were implicated in some of the atrocities but seemingly not regarded as irremediably sullied as the victims apparently were—were believed. Experts—nice clean distant observers to the harm they competently reported and analyzed—were believed. Most decisively, the victims having been thrown overboard by the majority, the crucial facts established in the case rested again and again on videotape. The camera was believed. The two judges of the Trial Chamber majority trusted themselves to know a boy when they saw one. Photography’s cold witness, from reports to date, will not be available for most of the mass rapes that have been integral to virtually all the conflicts before the ICC.

So now we are being asked to consider whether mass rape trials are better off without victims at all, when what is needed is to stop throwing them to the wolves.

“Fair trial” is a red herring, not even a theoretical issue here. The weight of the evidence is not a legal issue; it is a factual one. If evidence is insufficiently strong to convict, there will be no conviction, rather than an unfair one. Is the conviction in Lubanga rendered “unfair” the minute the majority throws out all the victim testimony? Those to whom trials without victims would be unfair are the survivors, who would never have the chance for the restoration of human dignity that participating in public vindication correctly handled can help promote. It would be unfair to their communities and to victims everywhere, who would never see a raped woman or man stand up against their abusers in the public light of day. It would be unfair to the law, which would be cheated out of the development, at long last, of more effective gender crime law that builds on the unique information survivors alone possess and the special power and witness of their voices. It would be unfair to history, which would have no immediate record of what happened.

Maybe rape cases, difficult enough even with direct testimony of survivors, can be sufficiently compelling to prevail without flesh-and-blood victims, although it seems doubtful. Maybe international criminal cases, like Lubanga was, can be won without the embodied reality that only survivors can provide, their stories never told, even though Lubanga turned principally on the age of the victims and facts of their treatment that others, including some with cameras, were in a position to observe—which surely is not always the case with the facts of rape. (And even in Lubanga, the testimony of the victims was deemed relevant to sentencing and reparations.) No rape case has ever been brought, to my knowledge other than when the victim is dead, without a complaining witness.

Perhaps the atrocities of conflict can be vanquished even as the screams of the victims—most of them women and children—are silenced in the shadows of shame. Maybe rape can be ended even as international justice treats its victims as repulsive and aberrant. The waves emanating from the ICC are a major part of its effect. No mass rape conviction accomplished without victims would have the impact of one in which some of them—those who want to—stood up and were counted. The spectacle of prosecutors hiding behind raped women rather than fighting for them is unseemly. Vindicating human rights while the humans whose rights are to be vindicated are kept from being seen and heard is a paradoxical, even disgraceful enterprise.

The question here, in my view, is not whether the ICC should try to prosecute mass rapes without rape victims, or whether such cases could be “sustained,” but who wants to do this and why it should even be considered.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 0.

    The author has served as Special Gender Adviser to the Prosecutor of the International Criminal Court, The Hague, since 2008. The opinions expressed here are her own. The assistance of Taylor Landis is gratefully acknowledged.

  2. 1.

    See, e.g., Rome Statute of the International Criminal Court, available online, art. 21(3), providing that the “application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights” and not performed in a discriminatory manner.

  3. 2.

    See, e.g., Rome Statute of the International Criminal Court, art. 7(g) defining “[r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” as crimes against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”; art. 7(h) identifying as a crime against humanity “[p]ersecution against any identifiable group or collectivity on… gender as defined in Paragraph 3… grounds” where “gender” “refers to the two sexes, male and female, within the context of society”; art. 8(2)(b)(x) outlawing as a war crime “[s]ubjecting persons who are in the power of an adverse party to physical mutilation”; art. 8(2)(b)(xxi) defining as a war crime “[c]ommitting outrages upon personal dignity, in particular humiliating and degrading treatment”; art. 8(2)(b)(xxii) explicitly listing as war crimes “[c]ommitting 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”; art. 8(2)(c)(i) banning as a war crime “…mutilation, cruel treatment and torture”; art. 8(2)(c)(ii) further defining as war crimes “[c]ommitting outrages upon personal dignity, in particular humiliating and degrading treatment”; art. 8(2)(e)(vi) enumerating as war crimes “[c]ommitting rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions”; and art. 8(2)(e)(xi) banning as a war crime “[s]ubjecting persons who are in the power of another party to the conflict to physical mutilation…”. See also art. 7(2)(c) “‘Enslavement’ means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.”

  4. 3.

    See Convention on the Prevention and Punishment of the Crime of Genocide, art. II, Dec. 9 1948, S. Exec. Doc. O, 81-1 (1949), 78 U.N.T.S. 277.

  5. 4.

    This can be seen as one reason for the (in my opinion) disgraceful decision by the International Court of Justice holding that, other than Srebrenica, the Bosnian conflict was not a genocide. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43) ¶ 471(2)—(6) (Feb. 26, 2007) available online.

  6. 5.

    See Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Foča Case), IT-96-23-T & IT-96-23/1-T, Judgment (Feb. 22, 2001) available online.

  7. 6.

    See Kadic v. Karadzic, 70 F.3d 232, 236 (2d Cir. 1995).

  8. 7.

    See Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Judgment pursuant to Article 74 of the Statute, (March 14, 2012), available online.

  9. 8.

    This outcome is subject to appeal by representatives of the victims but not by the Prosecution, because it won the case against Lubanga.

  10. 9.

    See Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Decision on the Practices of Witness Familiarisation and Witness Proofing (Nov. 8 2006) available online, particularly ¶¶ 16-17 and the final order to the Prosecution. See also the subsequent decision prohibiting entirely the prosecution from undertaking so-called “witness proofing” in, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial ¶¶ 28, 53, 57 (Nov. 30, 2007) available online.

  11. 10.

    See, e.g., Prosecutor v. Thomas Lubanga Dyilo, Decision on the Practices of Witness Familiarisation and Witness Proofing, supra note 5 ¶ 45.

  12. 11.

    See Prosecutor v. Jean-Pierre Bemba Gombo, Case No. 01/05-01/08, Decision on the Unified Protocol on the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, (Nov. 18, 2010), available online.

  13. 12.

    R. v Momodou, [2005] EWCA Crim 177 (England & Wales), ¶ 61.

  14. 13.

    See Bar Standards Board [UK], Written Standards for the Conduct of Professional Work, §6.3.3, available online (noting that [t]here may be extraordinary circumstances in which a departure from the general principles set out in [the Rules] is unavoidable).

  15. 14.

    See Crown Prosecution Service, Pre-trial Witness Interviews: Code of Practice, available online.

  16. 15.

    Liz Kelly, Jo Lovett, & Linda Regan, A Gap or a Chasm? Attrition in Reported Rape Cases, in Home Office Research Study 293 (2005), available online indicates that in 2002, the conviction rate for reported rape cases in the U.K. was 5.6%. For one comparison, although the data is not squarely comparable statistically, in the United States, where victims may be prepared for trial, an estimated 50% of those arrested and prosecuted for rape were then convicted of a felony, with an additional 8% convicted of a misdemeanor. Thirty five percent of those arrested and prosecuted for rape saw their case dismissed by the courts, 3% were acquitted, and 1% received a judgment other than a conviction or acquittal. Kimberly Lonsway & Joanne Archambault, The “Justice Gap” for Sexual Assault Cases: Future Directions for Research and Reform, 18 Violence Against Women 145, 154 (2012).

Wedgwood Avatar Image Ruth Wedgwood, J.D. Burling Professor of International Law and Diplomacy School of Advanced International Studies, Johns Hopkins University

ICC Prosecution of Mass Rape Crimes Will Require Some Evidence from Victims, but the Hardship of Testifying can be Mitigated

Sexual attacks on women despoil what an adversary would have held most dear, and in conflicts based on ethnicity, are sometimes mounted as a way of erasing the future of a nation. The sheer sadism of such attacks is rationalized as revenge.

Argument

Among the casualties of war are women. Alongside the battlefield deaths of male combatants are the families who lose their economic support and physical protection. And in a grim world of violence that often casts aside any ethos of humanity, women as well as their children have become more than incidental casualties. These innocents are often directly targeted by guerrilla forces and even the members of organized armies. Sexual attacks on women despoil what an adversary would have held most dear, and in conflicts based on ethnicity, are sometimes mounted as a way of erasing the future of a nation. The sheer sadism of such attacks is rationalized as revenge.

The question advanced by the prosecutor of the International Criminal Court focuses on the horrid nature of such crimes, and the hope that the trial process will not increase the suffering of the victims. The question put is whether the “crime of mass rape can be tried without testimony from victims.” One would like the answer to be yes. But with the demands of justice, real and perceived, it is not likely that the victims can be wholly spared the additional challenge of going to court. There are, however, ways to mitigate the burden.

One should be keenly aware of how difficult it is to testify in any prominent case, especially one that is broadcast all over the world. As a former federal prosecutor, later turned professor, I used to tell my law students about the difficulty of “suborning the truth”—an odd turn of phrase meant to acknowledge that giving testimony can carry real costs for any person. Retaliation against a witness can take the form of physical violence, loss of a livelihood, or social shunning. In the case of sexual crimes, public exposure of the assault may work additional mischief on the victim, especially in traditional societies—disabling the victim from future marriage because she is no longer a virgin, or impelling a spouse or relatives to abandon her in an action of divorce. Even though the criminal act occurred through the immediate threat of violence, it may be seen as a matter of “shame”—gravely endangering a person’s sense of self and membership in a society.

There are, however, techniques for trying a case that can help to mitigate the harm. This is not an entirely new issue, and arises in other areas. The common law system demands that all trial testimony be heard viva voce (presenting live witnesses to speak under oath in court and subject to cross-examination by the defendant). But one should remember that the civil law system has traditionally allowed a broader latitude for fact-finding, even permitting the admission of hearsay testimony—someone else’s account of what a direct witness perceived—on the premise that professional judges can weigh the varying reliability of such testimony. One worries that some of the judges elected to the International Criminal Court may not previously have served in that role; nonetheless, at least with experienced judges it is conceivable that second-hand testimony can serve as a worthy complement to first-hand accounts.

In addition, even within the common law system, there have been adaptations to prevent the disclosure of crucially sensitive information in a public setting, while preserving the integrity of fact-finding. There was, once upon a time, the problem of “greymail” in criminal cases in the federal courts of the United States—the surmise of some defense attorneys that the cost to the government of revealing sensitive national security information in the course of a criminal trial would prevent the government from pursuing certain cases. At a time when the Cold War was still around, this was not a trivial concern, nor is it today. When I was a young lawyer (or “munchkin” as Bill Safire put it in the New York Times) working for the head of the Criminal Division in the U.S. Department of Justice, we faced the dilemma in a case concerning the capabilities of an American spy satellite system—used to watch the movements of our adversaries. The operating manual had been thrown over the fence of the Russian embassy in Athens by a wayward former employee of the CIA. The Russians obviously knew the classified contents, but other countries might not share in the access, and one didn’t want the trial to change that. So in the prosecution of the Kampiles case, we persuaded the court to accept evidentiary safeguards that permitted the trial to proceed, by redacting specific data concerning satellite capabilities (for example, stating that the satellite could see objects of “X” size rather than the actual degree of resolution), by sharing documents with the jury that were not made public at large, and by asking the judge to require that defense counsel give prior notice when they were going to proceed into sensitive areas. These procedures were subsequently generalized in the Classified Information Procedures Act, and have greatly enhanced the ability to take national security cases to trial. The fairness of the trial proceedings was further assured since any redactions from the classified documents could be reviewed on appeal by another panel of judges after the trial was completed.

In the trial of sexual violence in the International Criminal Court, similar adaptations could be made, and indeed, some of these trial methods have been used in the International Criminal Tribunals for the former Yugoslavia and for Rwanda. An international judge could take protective measures to safeguard the names, addresses, and pictures of witnesses who are vulnerable to retaliation, keeping the identifying data (though not the basic substance of their testimony) out of the press and the public transcripts. One can subject both lawyers and the parties to protective orders that would forbid any dissemination of the identifying data, on penalty of contempt, subject to any specific showing that compelling circumstances require use of the data for further investigation of the case. Cf. Article 68(c) of the Rome Statute .

Where the personal interests of victims are affected the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial.

The process of asking a witness to leave her community and reappear in a courtroom in The Hague thousands of miles away may be additionally disruptive and conspicuous. It may be worthwhile for a court to experiment with the possibility of “Skype” hearings—in which a witness could give testimony and be examined through the visual and auditory capabilities of internet telephone in a somewhat less alien setting, say, in a local embassy or business headquarters. To the same effect, the criminal court itself could convene in several locations, especially if larger numbers of victim-witnesses need to give testimony. Courts have often traveled on circuit, and even a defendant in custody could take part and consult with his counsel by secure and private video link. For key witnesses who fear that their public identification as a sexual victim will leave them destitute and subject to abuse, the Registry of the Court could consider a program of witness relocation and witness protection—including provisions for modest economic assistance to allow a witness to establish a permanent means of self-support.

The protection of victims may also be assisted by the theories of indirect liability that are now a standard part of the law of armed conflict and the jurisprudence of the international criminal courts. The first is the theory of “command responsibility”—holding that a superior military officer is obliged to take steps to prevent and punish widespread misbehavior by subordinates and that the failure to do so can be actionable as a crime itself, at least where the superior officer knew or should have known of the danger. Thus, a commander’s failure to discipline troops that have run amok and a decision to continue their deployment without corrective action could itself be a basis for a finding of criminal responsibility, even for an indigenous militia. This theory of liability turns on the flow of information to the commander through military communications as well as news reports, and does not turn so essentially on the detailed testimony of particular victims. So, too, the theory of “joint criminal enterprise” does not require that a commander be on the scene of a particular atrocity, but rather permits criminal liability for a willful indifference to the continued criminal behavior of subordinates.1 The use of “pattern” evidence that shows a high incidence of medical reports of assault and rape in a conflict zone may also be relevant to this form of commander’s responsibility.2

Finally, one may note a developing skepticism about allowing accused war criminals to act as their own attorneys in international criminal court proceedings. The obstruction of the Hague proceedings before the International Criminal Court for the former Yugoslavia by former Serb president Slobodan Milosevic has been widely decried, including his apparent misuse of medications to “call in sick” on numerous occasions, as well as his rambling and hectoring cross-examinations of witnesses designed to belittle and delay, rather than to elicit probative evidence. In the immediate aftermath of a war, it may be asking too much for fact witnesses who are themselves victims to have to endure a “cheek by jowl” tirade by the very person who allegedly ordered their mistreatment.

The failure of the Yugoslav tribunal to reach a verdict by the fourth year of the Milosevic trial, when the defendant died, is a tell-tale sign that efficiency, as well as fairness to victims, may argue in favor of requiring professional counsel to conduct the examinations (though of course, they are obliged to consult with their client for his views). This, in turn, will give the judges some greater assurance that the examinations are conducted in an appropriate and respectful way that takes the rights of victims into account. In an extreme case of abusive conduct, one could even imagine (at least in an international setting) the requirement that counsel submit to the judge the questions they wish to ask, so that the process of questioning is not allowed to become a ceremony of humiliation that would discourage other victims from coming forward. Though the procedure of the international criminal courts has resembled common law criminal courtrooms more than civil law, there is nothing in the Statute of the International Criminal Court that prevents a judge from adapting the mode of questioning to the behavior of the defendant and his counsel and to the felt need to protect victim witnesses from further traumatic injury.

Thus, the answer to the prosecutor’s question is “No, but”—one cannot likely try a case of widespread rape without testimony from some of the victims. But one can mitigate the psychic and social harm that the trial process might impose on victim witnesses through some of the practical procedures noted above.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    For a thoughtful critique of the actual use of theories of “joint criminal enterprise, see Nancy Amoury Combs, Fact-Finding Without Facts (Cambridge University Press 2010), at 321-333. The scope of liability imputed to a participant in a joint criminal enterprise has an uncanny resemblance to the felony murder rule of common law—that a participant in a violent felony undertaken with co-conspirators will bear criminal responsibility for any other foreseeable crimes that occur during the course of its commission.

  2. 2.

    Though it is not the topic at hand, these theories of responsibility may also call into question the current U.N. arrangements for the discipline of international peacekeepers, in which aberrant troops are simply returned to their state of origin for any follow-up action that the sending state may choose to take. There is no published record of the efficacy of that referral system, but the general belief among U.N. practitioners is that the disciplinary referrals are largely ineffective.