Invited Experts on Sexual and Gender-Based Violence Question

De Vos Avatar Image Christian De Vos, J.D., Ph.D. Advocacy Officer Open Society Justice Initiative

Apple Avatar Image Betsy Apple, J.D. Advocacy Director Open Society Justice Initiative

Securing Better Cooperation for Sexual and Gender-Based Crimes Begins by Redefining Cooperation

The relationship between the ICC’s OTP and those who serve to connect the Office to victims […] is burdened by a fraught history […] premised on the (at least implicit) notion that first responders and others acting at the national and local level are instruments of the OTP.

Summary

The relationship between the ICC’s Office of the Prosecutor (OTP) and those who serve to connect the Office to victims, witnesses, beneficiaries, or affected communities is burdened by a fraught history. While somewhat improved since the ICC adopted its 2014 Guidelines Governing the Relations between the Court and Intermediaries, this relationship is particularly challenging in sexual and gender-based crime (SGBC) cases because it is premised on the (at least implicit) notion that first responders and others acting at the national and local level are instruments of the OTP. This power imbalance risks re-inscribing the very same dynamic giving rise to and enabling sexual and gender-based crimes. In order to achieve meaningful accountability for SGBC, the OTP must shift its conception of its relation to first responders and intermediaries from an instrumentalist notion to one of substantive equality.

Argument

The investigation and prosecution of sexual and gender-based crimes is one of the International Criminal Court’s most important tasks. Its founding document, the Rome Statute, enumerates a broad range of SGBC as war crimes and crimes against humanity, and contains specific provisions that reflect the drafters’ intention to give special attention to their prosecution.1 The Office of the Prosecutor’s Policy Paper on Sexual and Gender-Based Crimes, released in June 2014, further affirms that, “[it] pays particular attention to the commission of sexual and gender-based crimes,” and seeks to “enhance the integration of a gender perspective and analysis in all stages of its work.”2 Moreover, as a court that is meant to serve as a complement to—and an example for—national jurisdictions, attention to SGBC forms an important part of the ICC’s purported “demonstration effect.”3 In the long shadow cast by years of neglect at the global level to rape and other forms of sexual violence, the ICC was meant to signal a change in the policy and practice of international criminal tribunals.

Yet nearly fifteen years on, the ICC’s record of successful prosecution of SGBC remains decidedly mixed. Despite the historic conviction of former Congolese vice-president Jean-Pierre Bemba Gombo—the ICC’s first for crimes of sexual violence—and the successful confirmation of SGBC charges in two recent confirmation decisions (Laurent Gbagbo and Bosco Ntaganda), the Women’s Initiatives for Gender Justice has noted that, historically, SGBC crimes have been the “most vulnerable category” to failing judicial scrutiny, with more than 50 per cent of such charges dismissed before trial.4 It has also become increasingly clear that the OTP has an evidence problem not limited to SGBC alone. To date, nearly one-third of those individuals who have undergone the confirmation of charges process before the ICC have had the charges against them dismissed or withdrawn in their entirety.5 One report notes that this is “a substantially higher rate of dismissal than the acquittal rate seen at other international criminal bodies following a full trial, even though the standard at trial—beyond a reasonable doubt—is higher than the burden at the confirmation stage.” Judges have also raised pointed criticisms, noting “grave problems in the Prosecution’s system of evidence review, as well as a serious lack of proper oversight by senior Prosecution staff.”6

In light of these challenges, this question invites us to consider how the ICC OTP can “secure better cooperation” from first responders and those individuals and organizations working on the ground who are often closest to the site where grave crimes are committed, to assist in the investigation and prosecution of SGBC. The Oxford English Dictionary defines “cooperation” as “1) the process of working together to the same end, and 2) assistance, especially by ready compliance with requests.”7 Unfortunately, the history of the relationship between the OTP and those working on the ground—or at least one compelling version of it—suggests that the Office has too often adopted the latter definition at the expense of the former. Indeed, the very framing of this online Forum is telling insofar as it rests upon a problematic dynamic between the Court as an institution and the individuals with whom it necessarily engages to fulfill its mandate. Put differently: who should be “securing” whom, and to what end?

This dynamic is particularly troubling in the context of SGBC cases, which are characterized by—and indeed result from—inequalities of power as between perpetrator and victim. It is well settled that SGBC, whose primary (although not exclusive) targets are women and girls, emanates from, and is enabled by, unequal power relationships.8 These inequalities exacerbate the already monumental impact of the violence itself, rendering SGBC victims and survivors with “fewer options and less resources at their disposal to avoid or escape abusive situations and to seek justice.”9 Because SGBC is fundamentally premised on the relative imbalance of power between perpetrator and victim, any efforts to promote justice and accountability for it must be constructed upon the opposite: a clear and unequivocal equality of power. While the ICC’s ultimate goal of investigating and prosecuting SGBC is crucial, it must do so without re-inscribing those power asymmetries that enabled the crimes in the first place. This requires a delicate balancing act on the part of the OTP: it must both ensure the credibility and reliability of the information and evidence gained as a result of the relationship between the Office and first responders, but it must refrain from treating those who connect it to victims, witnesses, and beneficiaries as mere instruments.

An added challenge is that the label of “first responder” summons another critical actor in ICC interventions: the “intermediary.” While the role of intermediaries was not “explicitly envisaged” in the Rome Statute, the Court has defined an intermediary as:

[S]omeone who comes between one person and another; who facilitates contact or provides a link between one of the organs or units of the Court or Counsel on the one hand, and victims, witnesses, beneficiaries of reparations and/or affected communities more broadly on the other.10

As summarized by the Trial Chamber in Lubanga:

[Intermediaries] undertake tasks in the field that staff members cannot fulfil without creating suspicion; they know members of the community, and they have access to information and places that are otherwise unavailable to the prosecution.11

In short, like first responders, intermediaries are locally based actors who, “[b]ecause of their long-term presence,” can carry out important functions that assist the Court.12 Although not all first responders are intermediaries, if a responder’s cooperation is enlisted in order to assist the OTP with SGBC investigations, then arguably they too would occupy this role. Indeed, according to the OTP, obligations toward a designated “intermediary” are triggered “as soon as they engage with that entity.” This can take place either “when the OTP reaches out to a first responder,” or when the Office “decides to use information provided by a first responder.”13

But what exactly is the relationship of these individuals (or institutions) to the OTP?

This question goes to the heart of a long-running debate before the Court, one that played out painfully and near disastrously in the first trial of Thomas Lubanga, and has emerged in other proceedings as well. While the issue in Lubanga concerned the OTP inappropriately “delegating” its investigative responsibilities to intermediaries—relying on them, in some cases, not only to contact but also to propose potential witnesses14—those proceedings should not overlook a broader concern about the power dynamics that inform the Court’s relationships with local actors, and how “cooperation” can obscure their coercive effects. As Déirdre Clancy, who worked with ICC intermediaries for a number of years, has noted:

[T]here is often a tension in the intermediary relationship between the Court’s desire to benefit from local perspectives, access and expertise and its concerns that local interests, whether political, financial, security-related or opportunistic, will tarnish the products of that relationship. The idea that local interlocutors should function as mere volunteers of the Court divested of their own politics or interests is prevalent.15

In the context of SGBC cases, this tension is particularly significant—and particularly challenging to navigate—because local interlocutors may encompass an even broader category of actors than usually serve as intermediaries. Victims and survivors of SGBC during Kenya’s post-election violence in 2007/2008, for instance, were often unwilling or unable to report crimes to the police or other authorities due to shame, stigma, fear of reprisals, inaccessibility, or other factors. Consequently, for some SGBC victims, the first point of contact was local chiefs,16 community elders,17 community health workers,18 and victims’ services NGOs.19

In interrogating the prospects for bridging the gap between the two distinct notions of cooperation identified above—a process of working together, or of compliance with requests—an examination of the OTP’s practices thus far is not particularly encouraging. First, the Office’s field presence in many situation countries has been minimal, with the composition of its staff predominantly (if not exclusively) international.20 Second, even as they have “shouldered the greatest burdens,”21 responders and intermediaries have largely remained at the margins of the OTP’s decision-making process. As it was explained to the Court in Lubanga, intermediaries “were not supposed to know the objectives of the investigation team,” and their role was apparently “limited, in the sense that [they] were excluded from the decision-making process.”22 Pascal Kambale, a Congolese human rights lawyer, notes that local NGOs and activists “had more raw intelligence on the crimes than any other entity, [but] were deliberately sidelined and their invaluable expertise not fully integrated into the investigative process.”23 In a similar vein, Phil Clark has argued that, “Evidence from the ground … suggests that the ICC has … often perceived itself as the lead organisation to which all others are answerable.”24

Some strides have been made on these issues, but more must be done. Draft Guidelines Governing the Relations Between the Court and Intermediaries—described as an attempt to “provide a framework with common standards and procedures in areas where it is possible to standardize the Court’s relationship with intermediaries”25—were first circulated in 2010 and later revised substantially; they came into effect in April 2014. Importantly, the Guidelines clarify the existing legal and policy framework governing the ICC’s relationship with intermediaries and other responders that may seek to engage with the Court, providing greater clarity as to what they may expect from the ICC, including payment (where appropriate) of their expenses and their protection when placed at risk. Clancy notes that, “While a fiscally sensitive ASP was clearly wary of institutionalising the intermediary role, reports by the Court to the ASP at the same time indicated that use of intermediaries was ‘ultimately cost effective.’”26

However, although now formally in effect, the text accompanying the Guidelines (including a Model Contract and the Code of Conduct) on the ICC’s website notably describes them only as “standards” to which the organs of the Court will “aspire.”27 Moreover, it is not clear that the broader concern here has been remedied. The Guidelines warn, for instance, that an intermediary’s failure to “observe and comply with best/good practices while engaged with the Court” will lead to their forfeiture from the agreed framework of security. Equally, the Contract states explicitly that nothing “shall be construed as establishing … a partnership.”

These provisions are a reminder that the Guidelines speak more in the language of contract than cooperation; indeed, it is unclear that greater formal clarity as to roles and responsibilities will do much to attract greater support from local populations. Instead, we suggest that a more fundamental change in both orientation and practice towards first responders/intermediaries is needed. This orientation should not take as its departure point the “securing” of cooperation by these actors, but rather a concerted effort to understand the nature of their work, the challenges they face on the ground, and the assistance they might seek.

Such an orientation would require, above all, the Office itself developing a more sustained on the ground presence, in order to develop the sort of productive relationships that would support greater cooperation with first responders. This requires a more place-based Court (to date no ICC hearing has ever been held outside of The Hague) but also a more placed-based OTP. Indeed, according to testimony, investigators working in the DRC spent only an average of ten days in the field,28 making it difficult for them to interview witnesses, much less develop the sort of long-term connections that a more sustained field presence would enable. In our view, the most notable aspect of the Office’s approach to preliminary examinations and investigations has been its failure to locate any investigators or analysts in country on a permanent (or semi-permanent) basis, or to engage on a more sustained basis with national-level interlocutors.

Notably, there have been some promising policy changes under Prosecutor Bensouda’s leadership. The Office’s 2012–2015 strategic plan announced a departure from the OTP’s earlier policy of “focused investigations” in favor of a principle of “in-depth, open-ended investigations.”29 In line with this reorientation, the Prosecutor promisingly noted in her inaugural speech to the ASP that the OTP is “sending longer investigative missions with less frequent travel.”30 The Office’s 2016–2018 strategic plan maintains this approach, while also adopting a new strategic goal of developing “with partners a coordinated investigative and prosecutorial strategy to close the impunity gap.”31 With no new trial proceedings having yet been completed under Bensouda’s tenure, however, the extent to which this reorientation has taken shape in practice remains unclear. Moreover, continued pressure from members of the Assembly of States Parties to maintain or even reduce the Court’s budget makes it difficult to contemplate such a significant restructuring of Office practice. To her credit, the Prosecutor has pushed this issue far more than her predecessor; she should continue to do so.

Another key element is review and refinement of the Guidelines, as well as the development of additional legal frameworks that should guide OTP engagement with NGOs. As noted, the Guidelines are a welcome development in that they provide some measure of clarity on the responsibilities of the Office to those on the ground. At the same time, there are risks: as Clancy notes, “there is a danger that the process will impact intermediary independence and freedom to act, as has been experienced by some … operating under contracts to date.”32 A detailed review of the Guidelines is forthcoming, which should provide an important opportunity to reflect on their operation to date, including in the context of SGBC.33

Finally, the OTP might also benefit by examining possible applications of some of its victim and witness protection policies and practices to responders and intermediaries in the SGBC context. A growing body of clinical and legal literature has identified the phenomenon of “vicarious” or “secondary” trauma, which has been described as:

the experience of having exhausted hearts, minds, bodies, and souls from helping survivors through their painful experiences. Over the course of months or years the effects of vicarious trauma can accumulate, and, if left unaddressed, can do serious damage to the mental and emotional wellbeing of providers and other who work to support survivors.34

To the extent SGBC intermediaries also function as service providers to victims of sexual violence, they may experience vicarious trauma and require appropriate care. The ICC’s experience in assessing the need for and providing necessary psycho-social and other measures may be helpful in this regard.35

Ultimately, however, the question should be less what those working on the ground with victims and survivors can do to assist the OTP, but what the OTP can do to construct a relationship premised on the commonly held view that they are “working together to the same end.”36 Such relationship building requires an enhanced understanding of the power dynamic between the OTP and those based in its “situation countries”, as well as a shift from a transactional to substantive relationship of equality and mutual respect. As emphasized by several NGO participants at a workshop on first responders, there is a “need for an ongoing dialogue”: they “should not only hear from the ICC when the ICC needs something from them.”37 We would thus propose a different question as the first step towards redefining cooperation: How can the OTP better orient its practices to meet first responders and those working with victims and survivors on equal terms?

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

  1. 1.

    See, e.g., Rome Statute, Art. 54(1)(b); Art. 42(9), Art. 68(1). Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute].

  2. 2.

    Office of the Prosecutor, International Criminal Court, Policy Paper on Sexual and Gender Based Crimes, ¶ 14 (Jun. 2014), [hereinafter SGBC Policy Paper] available online, archived.

  3. 3.

    On “demonstration effect,” see Jane Stromseth, David Wippman & Rosa Brooks, Can Might Make Rights? Building the Rule of Law After Military Interventions (Cambridge: Cambridge University Press, 2006).

  4. 4.

    Women’s Initiatives for Gender Justice, Legal Eye on the ICC (Mar. 2012), available online. See The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Judgment Pursuant to Article 74 of the Statute (ICC Trial Chamber III, Mar. 21, 2016) [hereinafter Bemba Judgment] available online. (The Bemba Judgment was particularly notable for its affirmation of rape as both a war crime and crime against humanity).

  5. 5.

    Susana SáCouto , Investigative Management, Strategies, and Techniques of the International Criminal Court’s Office of the Prosecutor, Am. U. Wash. C. L., WCRO at 9 (Oct. 2012) available online, archived. (The burden of proof during the ICC confirmation of charges stage is “substantial grounds to believe,” Rome Statute, Art. 61(7)).

  6. 6.

    The Prosecutor v. Uhuru Muigai Kenyatta, ICC-01/09-02/11, Decision on Defence Application Pursuant to Article 64(4) and Related Requests, Concurring Opinion of Judge Christine Van den Wyngaert, ¶¶ 1, 4–5 (ICC Trial Chamber V, Apr. 26, 2013), available online.

  7. 7.

    Cooperation, Oxford English Dictionary (last visited Apr. 5, 2016) [hereinafter Cooperation Definition] available online.

  8. 8.

    See, e.g., Lori Heise, et al., A Global Overview of Gender-Based Violence, 78 Int’l J. Gynecology Obstetrics, S5 (Sep. 2002), available online.

  9. 9.

    United Nations Population Fund, Strategy and Framework for Action to Addressing Gender-based Violence, 2008–2011, p. 7 (2008) available online.

  10. 10.

    International Criminal Court, Guidelines Governing the Relations between the Court and Intermediaries, at 5 (Mar. 2014) [hereinafter Guidelines] available online, archived.

  11. 11.

    The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Redacted Decision on Intermediaries, ¶ 88 (ICC Trial Chamber I, May 31, 2010) available online.

  12. 12.

    The Prosecutor v.Thomas Lubanga Dyilo, ICC-01/04-01/06-2842, Judgment Pursuant to Article 74 of the Statute, ¶ 167 (ICC Trial Chamber I, Mar. 14, 2010) [hereinafter Lubanga Judgment] available online.

  13. 13.

    Stephen Smith Cody, Alexa Koenig, Andrea Lampros, & Julia Rayner, UC Berkeley HRC, First Responders: An International Workshop on Collecting and Analyzing Evidence of International Crimes, at 6 (Sep. 2014) [hereinafter First Responders], available online, archived. See also SGBC Policy Paper, supra note 2, at ¶ 56 (“The Office will identify individuals who may be selected as intermediaries in order to support the conduct of effective investigations.”)

  14. 14.

    See, e.g., Elena Baylis, Outsourcing Investigations, 14 UCLA J. Int’l L. & Foreign Aff. 121 (Sep. 1, 2009) available online; Carole Buisman, Delegating Investigations: Lessons to be Learned from the Lubanga Judgment, 11 Nw. J. Int’l Hum. Rts. 30 (2013), available online.

  15. 15.

    Déirdre Clancy, ‘They Told Us We Would Be Part of History’: Reflections on the Civil Society Intermediary Experience in the Great Lakes Region, in Contested Justice: The Politics and Practice of International Criminal Court Interventions at 219–248 (Christian De Vos, Sara Kendall & Carsten Stahn, eds., Cambridge University Press 2015), available online. On the “depoliticization” of victims, see also Sara Kendall & Sarah Nouwen, Representational Practices at the International Criminal Court: The Gap Between Juridified and Abstract Victimhood, 76 Law & Contemp. Probs. 235 (2013), available online.

  16. 16.

    Kim Thuy Seelinger & Alexa Koenig, et al., UC Berkeley HRC, , Sexual Offences Act Implementation Workshop Comprehensive Report, at 27 (May 2011) [hereinafter SOA Report], available online.

  17. 17.

    Id. at 37.

  18. 18.

    Health Rights Advocacy Forum, Report on the Effects of 2007 Post Election Violence on Health Workers and the Preparedness of the Health Care System in Kenya (2008), available online.

  19. 19.

    SOA Report, supra note 16, at 42.

  20. 20.

    Few to none of the OTP’s investigators to date have been nationals of countries where cases are under investigation. See Christian De Vos, Investigating From Afar: The ICC’s Evidence Problem, 26(04) Leiden J. Int’l L. 1009 (Dec. 2013).

  21. 21.

    Clancy, supra note 15, at 226.

  22. 22.

    Id. at ¶ 181.

  23. 23.

    Pascale Kambale, The ICC and Lubanga: Missed Opportunities, African Futures (SSRC, Mar. 16, 2012), available online. See also Olivia Bueno & Gilbert Angwandi, IRRI & APROVDIVI, Steps Towards Justice, Frustrated Hopes: Some Reflections on the Experience of the International Criminal Court in Ituri (Jan. 2012), available online.

  24. 24.

    Phil Clark, If Ocampo Indicts Bashir, Nothing May Happen, African Arguments, Jul. 13, 2008, available online.

  25. 25.

    Notably, while many organizations (for, instance local NGOs) can also serve as intermediaries, the Guidelines only govern the ICC’s relationships with individuals. In addition to the Guidelines, a draft Code of Conduct for Intermediaries, and a Model Contract for Intermediaries have also been created. See ICC adopts Guidelines on Intermediaries, Int’l Crim. Ct., [hereinafter ICC adopts Guidelines] available online, (last visited Apr. 5, 2016).

  26. 26.

    Clancy, supra note 15, at 245. See Assembly of States Parties, Second Report of the Court on the financial implications of the draft Guidelines governing the relations between the Court and Intermediaries, ICC-ASP/12/53, ¶ 19 (Oct. 30, 2013) available online.

    (“[W]hile there are unavoidable costs for the Court in implementing the draft Intermediaries Guidelines … the use of intermediaries is ultimately cost effective for the Court. Intermediaries undertake work that would be extremely costly for the Court to perform[.]”)

  27. 27.

    See ICC adopts Guidelines, supra note 25. (The ICC’s webpage notes that, “With the exception of the model contract, Intermediaries guidelines are not legally binding, but represent standards for the Organs of the Court to aspire to in their interactions with intermediaries.”)

  28. 28.

    Lubanga Judgment, supra note 12, at ¶ 165; The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04/01/06, Deposition of Bernard Lavigne, p75:7–8 (ICC Trial Chamber I, Nov. 16, 2010) available online.

  29. 29.

    Office of the Prosecutor, International Criminal Court, Strategic plan, June 2012–2015 (Oct. 11, 2013), available online, archived.

    (Perhaps drawing on the lessons of the Kenyan experience and the criticisms of the Lubanga case, the Office also announced a departure from its previously stated policy of prosecuting only those “most responsible” for crimes in favor of a strategy of “gradually building upwards” wherein it “first investigates and prosecutes a limited number of mid- and high-level perpetrators in order to ultimately have a reasonable prospect of conviction for those most responsible.”)

  30. 30.

    Fatou Bensouda, Prosecutor of the ICC, Inaugural Address to the Assembly of States Parties (Nov. 14, 2012) available online. (In the same speech, however, it was made clear that “there shall be no structural changes in the Office, neither shall there be a departure from established policies and methods of operation”, Id. at ¶¶ 3, 6).

  31. 31.

    Office of the Prosecutor, International Criminal Court, Strategic Plan 2016–2018 (Jul. 6, 2015), available online, archived.

  32. 32.

    Clancy, supra note 15, at 246.

  33. 33.

    The Open Society Justice Initiative has been extensively engaged in the creation of and consultations around guidelines for NGOs that conduct documentation of grave abuses of human rights. Over the coming year, the OSJI will work with local partners to generate a series of reading modules addressing these and other areas of concern in the NGO-ICC relationship.

  34. 34.

    Office on Violence Against Women, U.S. Department of Justice, The Importance of Understanding Trauma-informed Care and Self-care for Victims Service Providers (Jul. 30, 2014), available online.

  35. 35.

    International Criminal Court, Protocol on the vulnerability assessment and support procedure used to facilitate the testimony of vulnerable witnesses, ICC-02/11-01/11-93-Anx2 (Apr. 16, 2012), available online.

  36. 36.

    Cooperation Definition, supra note 7.

  37. 37.

    First Responders, supra note 13, at 5.

SáCouto Avatar Image Susana SáCouto, J.D., MALD Director, War Crimes Research Office American University Washington College of Law

Encouraging First Responders to Collaborate with the International Criminal Court and Improving their Capacity to Obtain Information so that it may be Used for Investigations or in Judicial Proceedings Involving Sexual and Gender Based Crimes.

Some of these organizations view the collection of information for purposes of potential future prosecution either as beyond their mandate or as a potential threat to their efforts, independence, or security.

Summary

The International Criminal Court (ICC) is a court of global jurisdiction.1 Without unlimited resources, the Court cannot be present in every place where crimes within its jurisdiction may be committed. The Office of the Prosecutor (OTP) must, therefore, regularly rely on organizations on the ground that have access to witnesses, contacts, and other information that may be crucial to its investigations and/or prosecutions. The OTP’s reliance on these organizations is particularly pronounced in the context of situations or cases involving sexual and gender-based crimes (SGBC), as these crimes are often under-reported in situations of conflict or mass violence, making evidence collection of such crimes particularly challenging for the Court. As the United Nations (UN) Secretary General reported to the UN Security Council last year:

Sexual violence during and in the wake of conflict continues to be dramatically underreported because of the risks, threats and trauma faced by those who come forward…. Despite the political momentum and visibility gained in recent years, the reality on the ground is that many Governments have not been able to create an environment in which survivors feel safe to report sexual violence. The fear of stigmatization and reprisals is almost universal, and often compounded by a sense of futility stemming from the limited services available and the painfully slow pace of justice.… In situations of live conflict, such as the Central African Republic, Iraq, Somalia, South Sudan, the Sudan and the Syrian Arab Republic, service provision is further impeded by access restrictions and a climate of fear.2

In light of these challenges, organizations already on the ground, such as first responders, are often better suited than the OTP to identify and gather timely and relevant information about SGBC. These organizations can include both international and local actors, such as international forces, non-governmental organizations (NGOs), humanitarian organizations, human rights organizations, and the media, among others. However, these organizations have different mandates and serve different functions than a prosecutor. None operate under the same standards of proof as a criminal court, and none aim to convince judges of the guilt of particular suspects. Rather, their mandates vary, from providing security, humanitarian or other assistance, to advocating for political, military or other action, to informing the public of the situation on the ground, to promoting human rights more generally. Thus, some of these organizations view the collection of information for purposes of potential future prosecution either as beyond their mandate or as a potential threat to their efforts, independence or security. Not surprisingly, few organizations are trained in evidence collection techniques that would allow information to be used in criminal proceedings. Nevertheless, there are ways in which first responders and the OTP can work together to enhance the investigation and prosecution of SGBC before the ICC. In this brief note, I will reflect on two principal issues: I. how to encourage organizations to collaborate with the OTP and II. how to help first responders obtain reliable and high-quality information or evidence in a way that might be used for investigations or in judicial proceedings involving SGBC.

Argument

I. Encouraging first responders to collaborate with court

As mentioned above, organizations on the ground may be reluctant to collaborate with a criminal tribunal. Some are particularly resistant to assisting the ICC. There are a variety of reasons for this. Some organizations worry, for instance, that assisting international justice efforts might make them vulnerable to retaliation by government authorities. Staff of humanitarian organizations advocating against cooperation with the ICC point to the reaction of Sudanese authorities to the arrest warrant issued by the ICC for President Omar al-Bashir in March of 20093 as a cautionary tale. Shortly after the arrest warrant was issued, not only did the Sudanese government expel thirteen foreign aid groups and dissolve two local NGOs,4 but it also “committed a new series of war crimes, ranging from blocking humanitarian aid to kidnapping humanitarian workers, including the looting and use by Sudanese security forces of [Médecins Sans Frontières’s] vehicles, communications devices, and personal identification.”5

While such an extreme reaction might be unique to the situation in Sudan, other organizations have also expressed a broader concern that assisting international criminal justice efforts might significantly detract from their primary or overarching mandate. As commentator David Kaye has noted in discussing the role of the Office of the High Commissioner for Human Rights in international justice efforts, “[t]here is a risk that crisis—in particular the kinds of crises that consume an ICC focused on ongoing conflict—will inexorably pull the High Commissioner away from her core mandate of universal promotion and protection [of all civil, cultural, economic, political, and social rights].”6

Related to this concern is the perception by some organizations that the focus of the ICC on prosecuting a few, often high-level, perpetrators in a distant forum can overshadow other, often more far-reaching, post-conflict efforts, such as community reconciliation, domestic trials, or other rule of law efforts.7 They “perceive [international justice practitioners as] generalists trampling through places that require specialist knowledge.”8 That frustration is shared by those who see a need not just to punish perpetrators of mass crimes, but also to get at and address the root causes that lead to the commission of such crimes in the first place.9 The result is, as David Kaye suggests, that “international justice and human rights communities do not necessarily perceive one another as natural allies.”10

Encouraging first responders to collaborate with the OTP requires that it recognize and address these concerns. In particular, it requires that the OTP identify and pursue opportunities to foster mutual respect and understanding, and build trust, with first responders. This, in turn, requires that the OTP recognize not only that first responders have different mandates and capacities,11 but also that assisting the OTP may put their staff at risk and/or undermine their efforts.12 While recognition of these concerns might be done in a variety of different ways, ongoing communication and dialogue between the OTP and first responders is an essential first step.13 One way the OTP might increase opportunities for such dialogue is to increase its field presence on the ground, not just in places where it is investigating crimes, but even before it launches an official investigation, that is, during its preliminary examination of a situation.14 Although the OTP cannot feasibly have a presence in every conflict zone, a more robust field presence in situations under examination would allow it to more easily identify organizations that may come into contact with information, witnesses, or other evidence that may be useful in its own investigations and to begin a discussion with such organizations about whether and how best to work together.

It is worth noting that there are organizations—in particular those that offer direct services to SGBC survivors—that not only encourage survivors to access their services, but do it in a way that promotes the collection of information that could be used in subsequent investigations or judicial proceedings. For instance, some jurisdictions have “one-stop” centers or multi-purpose clinics that are set up to deliver a variety of services to survivors of SGBC through the same facility. A good example is the Seruka Health Center, set up in response to conflict-related sexual violence by the international NGO Médecins Sans Frontières in Bujumbura, Burundi. The Center offers medical and psychosocial services for SGBC survivors as well as a range of health care services for women more broadly, including family planning and treatment for sexually transmitted diseases.15 By offering a variety of services—and thereby allowing survivors of SGBC to avoid the stigma often associated with attending a clinic that only treats survivors of SGBV—this multi-purpose clinic has not only encouraged survivors to access medical and psychosocial assistance, but also has been able to connect those who come through their door with other NGOs and local community groups that “guide survivors through legal proceedings and contacts with the authorities.”16 Although not all countries where the OTP is active will have the benefit of such clinics or centers, an increased field presence would allow the OTP to identify and begin to build relationships with organizations that might be best suited to provide the OTP with reliable information about SGBC. Importantly, increasing the OTP’s field presence is consistent not only with recommendations made by outside observers in the context of improving OTP’s investigations overall,17 but also with the OTP’s own Strategic Plan for 2016–2018.18

Finally, those who worry that privileging international criminal accountability may detract from other, more local, justice efforts might be heartened by new research which finds that “countries under investigation by the ICC try roughly three times as many state agents per year for physical integrity abuses like torture and sexual violence, compared to averages in other conflicted states in Africa.”19 The research suggests that the onset of ICC investigations “sets into motion strategic interactions among members of ruling groups, domestic courts, and local civil society organizations” that result in increased domestic prosecution of such crimes.20 While the authors of this research acknowledge that it is difficult to know whether this process “can be sustained and converted into long-lasting reform,”21 they point out that increased domestic prosecutions of such crimes “portend unfolding long-term trends like enhanced concern for rule of law, and improved human rights protections.”22 Although disseminating such research among first responders may be beyond the scope of the OTP’s official functions, ongoing communication and dialogue between the OTP and first responders may offer opportunities to raise and discuss new research findings of this type, which may help counter the sense that international justice practitioners and first responders are not “natural allies.”

II. Helping first responders obtain reliable information or evidence in a way that might be used for investigations or in judicial proceedings involving SGBC

Even if first responders are persuaded to cooperate with the ICC, few first responders know the types of information that may be most helpful to investigators and/or prosecutors trying ICC crimes, in particular SGBC crimes.23 Thus, the next question is how the ICC and other stakeholders might help first responders gather information in a way that might be used for investigations or in judicial proceedings in cases involving SGBC. There are at least three specific areas about which the ICC could help first responders increase their knowledge, which would likely enhance the quality of the information or potential evidence collected by first responders in cases involving SGBC:

  1. the legal framework governing types of crimes and modes of liability;
  2. the basic rules and jurisprudence governing the way in which ICC admits, weighs, and assesses evidence; and
  3. the challenges that often arise in the investigation of Rome Statute crimes, particularly SGBC, about which survivors may be particularly reluctant to come forward.24

Thus, yet another goal of an ongoing dialogue between the OTP and first responders is to provide opportunities for the OTP and other stakeholders to discuss these issues with first responders.

As an initial matter, it is important that first responders have at least a basic understanding of the legal framework and jurisprudence of the ICC, in particular regarding the specific types and elements of SGBC under the Rome Statute, the contextual elements of the crimes, the threshold requirements—such as the gravity threshold—that must be met for all ICC crimes, and the modes of liability most often used in the prosecution of SGBC before international criminal courts.25 Moreover, examples of the types of evidence used to prove the elements of the these crimes, the threshold requirements, and modes of liability would give first responders a clearer idea of the specific types of information investigators would be looking for when investigating SGBC under the Rome Statute.26

Second, first responders should be aware of the basic rules and jurisprudence governing the way in which ICC admits, weighs, and assesses evidence in judicial proceedings. Knowing this will help first responders develop practices that will increase the likelihood that information they gather will be useful in judicial proceedings, or at the very least, as leads for investigators. For instance, evidence must be relevant,27 meaning it must “make[] the existence of a fact at issue more or less probable.”28 Thus, to be relevant, evidence must be detailed and connected to the violations allegedly committed by the perpetrator. While first responders may not know the precise nature of any charges that may ultimately be supported by the evidence at the time that they are collecting that evidence, or the identity of the accused against whom the evidence may be used, the likelihood that the evidence will be deemed relevant in a future prosecution will increase if the evidence is as detailed as possible. Evidence must also be reliable, meaning it is “voluntary, truthful and trustworthy.”29 In assessing the reliability of evidence, courts examine the source of the information, in particular “the place in which the document was seized, in conjunction with testimony describing the chain of custody[30] since the seizure of the document; corroboration of the contents of the document with other evidence; and the nature of the document itself, such as signatures, stamps, or even the form of the handwriting.”31 With this information, first responders can take specific steps, such as making regular use of chain-of-custody forms,32 to increase the future reliability of evidence they gather.

Third, in addition to understanding the general rules governing admissibility of evidence, first responders should be aware that there are a number of challenges that often arise in the investigation of SGBC. Among them is the fact that survivors of such crimes are often interviewed by different first responders, often with different mandates and/or different functions. This can result not only in secondary traumatization for survivors,33 but also in conflicting or impeachable statements that the defense may use to discredit witnesses during trial proceedings.34 Thus, an important lesson learned for first responders likely to interact with SGBC survivors is the need for coordination, in particular with respect to interviewing those survivors. This might mean identifying the organization or institution with the most significant experience in providing SGBC-related services as a focal point, and even a specific person within the lead organization as the lead person for SGBC coordination. In Liberia, for example, having an identifiable person for SGBC coordination helped outside partners (mainly national and international NGO partners) identify whom to turn to with questions and made coordination more visible.35

Moreover, first responders should be aware that, in many cases, SGBC survivors may fear retaliation for themselves or their families if they assist in the investigation or prosecution of SGBC.36 Fear of reprisals is often an acute issue in situations where victims still live near the perpetrators.37 Helping first responders ensure they are doing what they can to protect physical and psychological safety of victims and witnesses is essential to helping them encourage SGBC survivors to provide information and/or participate in investigations.38

Furthermore, treating SGBC survivors with dignity and respect often results in better cooperation by witnesses and ultimately better evidence.39 Thus, it is important that first responders be respectful and mindful of the risk of re-traumatization or other psychological harm to SGBC survivors and follow certain practices to minimize that risk, if they do not have such practices in place already. For instance, first responders should strive to ensure that survivors can request that they be interviewed by someone of their gender; this can help to build a relationship of trust between the survivor and interviewer and avoid victim re-traumatization.40 Second, when conducting an interview, it is imperative to inform the interviewee of the purpose of the interview and “how the information conveyed in the interview will be used.”41 Interviewees should also be made aware of the risks of the interview, including the possibility of traumatization,42 and of their right to refuse to answer certain questions, to take breaks, and to stop the interview at any time.43 To ensure informed consent on the part of the interviewee, first responders should consider developing—if they have not already—a consent statement that will be read aloud to each interviewee prior to the interview, and ensure that the interviewer allows time for questions.44

Another way to demonstrate respect for the victim or witness is to ensure that questions are formulated in a way that is least likely to cause strong emotional reactions. For instance, an interviewer should avoid asking questions that insinuate negative judgments about the witness’s actions. Instead, the interviewer should let the victim tell his or her story without interruption, asking specific questions and clarifying ambiguous information in an understanding and nonjudgmental tone, without questioning the interviewees’ status as a bona fide survivor of SGBC and explaining beforehand why certain potentially embarrassing questions may be necessary.45 Importantly, interviewers should refrain from making any assumptions about sexual or gender-based violence when conducting interviews. For instance, first responders “should not assume that, because a witness is young, old, disabled, or male, the witness has not experienced sexual violence.”46

Finally, it is important for first responders to be aware that there is precedent for successful prosecutions of SGBC even in instances where direct victim/survivor testimony regarding such crimes is limited or unavailable.47 Indeed, “the Prosecution may attempt to establish its case through hospital records, forensic evidence,[48] and the testimony of doctors, insider witnesses, international observers, and eyewitnesses to the sexual violence.”49 For instance, in the Bagosora, et al. case, the ICTR Prosecutor successfully secured a conviction for the crime against humanity of rape against Colonel Théoneste Bagosora, despite the fact that only one of 242 witnesses in the case testified about her own sexual victimization.50 Moreover, in the Đorđević case, the ICTY Prosecutor relied on the evidence of a witness who had observed a young Kosovo Albanian girl being removed from a convoy of displaced persons and taken to the woods by two armed men in order to establish that the girl had been sexually assaulted.51 Although the Trial Chamber found that it was unable to conclude that the young girl had been sexually assaulted in the absence of direct evidence as to what transpired in the woods, the Appeals Chamber reversed this, finding it was unreasonable not to conclude that the young girl had been “subjected to mistreatment that was sexual in nature.”52 Notably, documentary evidence—such as reports compiled by international observers, NGOs, and media—have also been used to show the existence and scope of sexual violence in a particular conflict area53 and to demonstrate that accused had notice of information that should have alerted them to the possibility or foreseeability of sexual violence.54 Thus, another goal of an ongoing dialogue between the OTP and first responders is to raise awareness among first responders that sources other than crime-based or victim-witnesses can provide important evidence in sexual violence cases. Importantly, the OTP may be able to increase the value of such information—particularly reports compiled by international observers, NGOs, and media—by providing relevant guidance to those organizations regarding how they might best present the information they have in their possession to the OTP. For instance, “rather than reporting separately about individual incidents, it may be helpful if NGOs were able to provide summaries of the total number of incidents they discover in a particular location, the types of crimes, and the suspected perpetrators of those crimes and/or groups to which they are linked.”55

Conclusion

Organizations already on the ground, such as first responders, are often better suited than the OTP to identify and gather timely and relevant information about SGBC. However, these organizations have different, often broader, mandates than an international criminal court. Thus, some view the collection of information for purposes of potential future prosecution by the ICC as beyond their mandate or as a potential threat to their efforts, independence, or security. Encouraging first responders to collaborate with the OTP requires that it recognize and address these concerns. In particular, it requires that the OTP identify and pursue opportunities to foster mutual respect and understanding, and build trust, with first responders. While this might be done in a variety of different ways, ongoing communication and dialogue between the OTP and first responders is essential and should be pursued as early as possible, even before the OTP launches an official investigation of a particular situation.

Even if first responders are persuaded to cooperate with the ICC, few first responders are aware of the types of information that may be most helpful to investigators and/or prosecutors trying ICC crimes, in particular SGBC. As I’ve argued, there are at least three specific areas about which the ICC could help first responders increase their knowledge, which would likely enhance the quality of the information or potential evidence collected by first responders in cases involving SGBC:

  1. the legal framework regarding SGBC crimes and modes of liability;
  2. the basic rules and jurisprudence governing the way in which ICC admits, weighs, and assesses evidence; and
  3. the challenges that often arise in the investigation of Rome Statute crimes, particularly SGBC, about which survivors may be particularly reluctant to come forward.

Notably, there have been various efforts to draft best practices on how first responders could help the ICC with general evidence collection.56 There have also been efforts to produce best practices on the investigation and prosecution of sexual violence crimes in particular.57 The ICC should encourage the development, adoption, and dissemination of a set of guidelines that incorporates relevant practices from these efforts specifically geared toward helping first responders obtain reliable information or evidence in way that would be most helpful to investigators and/or prosecutors trying SGBC crimes.58

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

  1. 1.

    124 states are party to the Rome Statute establishing the ICC. See The States Parties to the Rome Statute, Int’l Crim. Ct., available online (last visited Apr. 2, 2016).

  2. 2.

    See United Nations Security Council, Conflict-Related Sexual Violence: Report of the Secretary-General, ¶ 5, UN Doc. S/2015/203 (Mar. 23, 2015) [hereinafter UNSC Report on Conflict-Related Sexual Violence], available online.

  3. 3.

    The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Warrant of Arrest for Omar Hassan Ahmad Al Bashir (ICC Pre-Trial Chamber I, Mar. 4, 2009), available online, archived.

  4. 4.

    Sudan says decision to expel aid groups is irrevocable, Sudan Tribune, Mar. 8, 2009, available online.

  5. 5.

    Fabrice Weissman, Humanitarian Aid and the International Criminal Court: Grounds for Divorce, at 6 (Centre de reflexion sur l’action et les saviors humanitaires, 2009), available online. See also Stephen Smith Cody, Alexa Koenig, Andrea Lampros, & Julia Rayner, UC Berkeley HRC, First Responders: An International Workshop on Collecting and Analyzing Evidence of International Crimes, at 6 (Sep. 2014) [hereinafter First Responders] available online, archived (noting Côte d’Ivoire as another example “where local human rights defenders were reportedly endangered because of their assumed involvement in an ICC investigation”).

  6. 6.

    David Kaye, Human Rights Prosecutors? The United Nations High Commissioner for Human Rights, International Justice, and the Example of Syria, UCI Sch. L. Research Paper No. 2013-83, 14 (Jan. 4, 2013), available online. Similar sentiments have been expressed by civil society organizations involved in documenting human rights abuses. See Open Society Justice Initiative, Civil Society Perspectives on Fact-finding and the International Criminal Court, at 3 (Nov. 2015) [hereinafter OSJI Civil Society Perspectives] available online, (noting that civil society actors involved in documentation “expressed the need for the ICC to recognize that NGOs have mandates which are broader than cooperation with the ICC”).

  7. 7.

    See, e.g., Kaye, supra note 6, at 2 (noting that many human rights and humanitarian assistance professionals “privately express misgivings about an approach that privileges criminal accountability over other forms of post-conflict transitional justice”).

  8. 8.

    Id. at 2. This can be particularly irksome for first responders that understand the specific expertise needed to encourage survivors of SGBC within a particular community to come forward and report such crimes.

  9. 9.

    See Weissman, supra note 5, at 7 (arguing that “[t]he brutality of the Khartoum elite’s domination over Sudan’s outlying regions, the racism of a post-slavery society that dares not confront its past, the truly existential struggles between nomadic and agrarian societies for access to land and political representation, and the ties of hostility, cooperation and dependence between Sudan and its neighbors (Chad, Libya, Eritrea, etc.) and the rest of the international community are just some of the elements at the root of the extreme violence that the language of the criminal court is incapable of grasping.” Weissman goes on to note that “[t]he discourse of criminal justice understands historical events strictly in terms of the crimes they have engendered. Its view of conflicts is that of chaos and generalized crime. It offers no analysis of the causes of violence, but only judgment and condemnation of its perpetrators.”)

  10. 10.

    Kaye, supra note 6, at 3. Indeed, Kaye goes further, suggesting that “one detects an undercurrent of superiority felt by one’s practitioners over the other’s.” Kaye, supra note 6, at 2.

  11. 11.

    See OSJI Civil Society Perspectives, supra note 6, at 3 (noting that “[a]lthough the [ICC] and civil society groups may share the objective of seeking accountability, it must be recognized and respected that NGOs are committed to their own mandates and responsibilities towards their communities.”).

  12. 12.

    Id. (noting that the “challenges faced by NGOs must be acknowledged and addressed by the ICC, particularly in relation to security, protection, and financial costs of documentation, within the parameters of independence and neutrality.”).

  13. 13.

    This is one of the conclusions participants emphasized in the workshop hosted by UC Berkeley School of Law’s Human Rights Center with first responders on collecting and analyzing evidence of international crimes. See First Responders, supra note 5, at 5.

  14. 14.

    According to a 2011 report published by the OTP, “the Office conducts a preliminary examination of all situations brought to its attention based on statutory criteria and the information available.” International Criminal Court, Office of the Prosecutor, Report on Preliminary Examination Activities, ¶ 1 (Dec. 13, 2011), [hereinafter 2011 ICC OTP Report], available online. Pursuant to Article 53(1) of the Rome Statute, factors considered by the OTP during a preliminary investigation include whether a crime or crimes falling within the jurisdiction of the Court have been committed, the admissibility of the situation, and the interests of justice. See Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 53(1). See also 2011 ICC OTP Report, ¶¶ 3–8.

  15. 15.

    Christine Lebrun & Katharine Derderian, Creating Safe Spaces: Lessons from South Africa and Burundi, 27 Forced Migration Rev. 50–51 (2007), available online.

  16. 16.

    Id.

  17. 17.

    See, e.g., Susana SáCouto, Investigative Management, Strategies, and Techniques of the International Criminal Court’s Office of the Prosecutor, Am. U. Wash. C. L., WCRO (Oct. 2012), at 40–43 [hereinafter WCRO Investigations Report] available online, archived (recommending that the OTP send investigators to the country under examination for an extended period of time prior to the formal opening of an investigation in order to improve the OTP’s understanding of the context in which the crimes took place and its ability to gain the trust of those who may be in a position to provide useful information).

  18. 18.

    Office of the Prosecutor, International Criminal Court, Strategic Plan 2016–2018, ¶ 55 (Jul. 6, 2015) available online, archived (noting goal of increasing the OTP’s “investigative field presence”).

  19. 19.

    Geoff Dancy & Florencia Montal, Unintended Positive Complementarity: Why International Criminal Court Investigations Increase Domestic Human Rights Prosecutions, at 5 (SSRN, Oct. 30, 2015), available online.

  20. 20.

    Id. at 6.

  21. 21.

    Id. at 74.

  22. 22.

    Id. at 5 (citing Hunjoon Kim & Kathryn Sikkink, Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries, 54 Int. Stud. Q. 939–963 (2010) available online, archived; Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions are Changing World Politics (2011)).

  23. 23.

    See Richard Sollom, Investigative Best Practices to Document International Crimes, Safeguard Secure Court-Admissible Evidence: Results from a Global NGO Survey, FXB Center for Health and Hum. Rts. (Sep. 2014) (noting the vast majority of NGOs “remain unfamiliar with the workings of the Court and are uninformed of what information would be of use to the OTP, how such data would be used, and how to collect, store and transmit it more effectively to the Court.”). See also OSJI Civil Society Perspectives, supra note 6, at 4 (noting, for instance, that civil society groups in the Asia-Pacific region working on documentation “lacked awareness of international criminal law”).

  24. 24.

    See United Nations Security Council Report on Conflict-Related Sexual Violence, supra note 2, at ¶ 5.

  25. 25.

    See OSJI Civil Society Perspectives, supra note 6, at 4 (noting civil society groups that expressed “a need for guidance on the gravity threshold of crimes under the Court’s jurisdiction, and on ICC evidence standards, as well as specific training in the fields of international criminal law and international humanitarian law.”).

  26. 26.

    The in-depth evidence analysis charts available through the ICC Case Matrix is a particularly useful tool for training first responders on this. See ICC Case Matrix, Case Matrix Network, available online (last visited Apr. 2, 2016).

  27. 27.

    See, e.g., International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3, R. 63(2) (2013), available online, archived (referring to “the Chamber’s authority to assess freely all evidence submitted in order to determine its relevance or admissibility”). The other factor considered in assessing admissibility is whether the probative value of the evidence is substantially outweighed by the need to ensure a fair trial. See, e.g., The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2595-Red-Corr., Corrigendum to Redacted Decision on the Defence Request for the Admission of 422 Documents, ¶ 39 (ICC Trial Chamber I, Mar. 8, 2011) available online.

  28. 28.

    The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-2635, Decision on the Prosecutor’s Bar Motion, ¶ 16 (ICC Trial Chamber II, Dec. 17, 2010), available online.

  29. 29.

    The Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1, Decision on Prosecutor’s Appeal on Admissibility Of Evidence, ¶ 15 (ICTY Appeals Chamber, Feb. 16, 1999), available online.

  30. 30.

    Chain of custody is defined as “[t]he movement and location of real evidence, and the history of those persons who had it in their custody, from the time it is obtained to the time it is presented in court.” Aida Ashouri, Caleb Bowers & Cherrie Warden, An Overview of the Use of Digital Evidence In International Criminal Courts, Salzburg Workshop on Cyberinvestigations, at 10 (Oct. 2013), available online.

  31. 31.

    The Prosecutor v. Théoneste Bagosora, et al., ICTR-98-41-T, Decision on Admission of Tab 19 of Binder Produced in Connection with Appearance of Witness Maxwell Nkole, ¶ 8 (ICTR Trial Chamber I, Sep. 13, 2004), available online.

  32. 32.

    Sollom, supra note 23, at 9. See also First Responders, supra note 5, at 11 (noting that many NGOs found that maintaining chain of custody forms “can make different types of evidence particularly helpful to courts”).

  33. 33.

    See Cynthia Petrigh, Protection of Witnesses, Victims, and Staff in Monitoring, Reporting, and Fact-finding Mechanism, MRF Proj. at HPCR Harv., at 33 (Feb. 7, 2014), available online, (noting that forgoing interviews with individuals who have already been interviewed by one or more other organizations on the subject eliminates the possible psychological harm that may arise when a victim or witness tells a difficult story repeatedly). See also World Health Organization, Ethical and Safety Recommendations for Researching, Documenting, and Monitoring Sexual Violence in Emergencies, at 23 (Aug. 10, 2007) [hereinafter WHO Documenting Recommendations], available online, archived; World Health Organization, Ethical and Safety Recommendations for Interviewing Trafficked Women, at 16, 23 (2003) [hereinafter WHO Interviewing Recommendations], available online, archived.

  34. 34.

    See Sexual History, Corroboration, and Inconsistent Testimonies, Prosecuting Sex-Based Violations, available online (last visited Apr. 2, 2016).

  35. 35.

    See Gender-based Violence Area of Responsibility Working Group, Handbook for Coordinating Gender-based Violence Interventions in Humanitarian Settings, at 40 (Global Protection Cluster, Jul. 2010), available online.

  36. 36.

    See Office of the Prosecutor, International Criminal Tribunal for Rwanda, Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Situations of Armed Conflict: Lessons from the International Criminal Tribunal for Rwanda ¶¶ 53–54 (2008), [hereinafter 2008 ICTR Best Practices Manual], available online.

  37. 37.

    See, e.g., Claudia Paz y Paz Bailey, Guatemala: Gender and Reparations for Human Rights Violations, in What Happened to the Women? Gender and Reparations for Human Rights Violations 116 (Ruth Rubio-Marín, ed., ICTJ Advancing Transitional Justice Series, SSRC, Dec. 2006), available online, archived (noting fear of SGBC victims in context of Guatemalan conflict). This fear might have increased when indemnification was offered to the Civilian Self-Defense Patrols, many of whom were the perpetrators of rape, as this led to the reactivation and legitimization of their leadership within their communities. Id. at 97, 116–17.

  38. 38.

    Note, however, that first responders should be aware that it may not always be necessary or advisable to share all relevant information with the OTP. For instance, while some NGOs provide much needed medical and psychological assistance to SGBC victims and survivors, they may want to exercise caution before turning over confidential medical records to the OTP, as the OTP has an obligation to disclose potentially exculpatory information to the Defense, and this could include such records.

  39. 39.

    2008 ICTR Best Practices Manual, supra note 36, ¶¶ 63, 66 (noting that treating witnesses with respect, sensitivity, and care helps to put the witness at ease and facilitate witness testimony).

  40. 40.

    Anne-Marie de Brouwer, The Importance of Understanding Sexual Violence in Conflict for Investigation and Prosecution Purposes, 48 Cornell Int’l L.J. 639, 665 (2015), available online (citing Office of the Prosecutor, International Criminal Tribunal for Rwanda, Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-Conflict Regions: Lessons Learned from the Office of the Prosecutor for the International Criminal Tribunal for Rwanda (Jan. 30, 2014), [hereinafter 2014 ICTR Best Practices Manual], available online, archived (noting that the “[m]anual also highlights that diverse investigative teams, composed of male and female members of different ages and nationalities or regional backgrounds, provide the greatest flexibility in reaching out to and soliciting cooperation from victims and witnesses.”).

  41. 41.

    Human Rights First, The Role of Human Rights NGOs in Relation to ICC Investigations, at 8 (Sep. 2004), available online. Examples include informing the interviewee that interviews will be used for public reporting, public advocacy, documentation, or “for attempting to trigger a criminal investigation”.

  42. 42.

    WHO Documenting Recommendations, supra note 33, at 23; WHO Interviewing Recommendations, supra note 33, at 16, 23.

  43. 43.

    WHO Interviewing Recommendations, supra note 33, at 23.

  44. 44.

    United States Agency for International Development, Toolkit for Monitoring and Evaluating Gender-Based Violence Interventions Along the Relief to Development Continuum, at 207 (May 9, 2014), available online. Typically, the interviewee would then be asked to sign the consent form, but if issues of confidentiality render this problematic, another alternative is to have the interviewee sign a separate form that states that the “informed consent is given to participate in an interview (or other activity) but does not specify the topic.” Id. at 208.

  45. 45.

    See WHO Interviewing Recommendations, supra note 33, at 23; Sexual Assault Emergency Response Protocol for Sarnia-Lambton, at 4–5 (2006).

  46. 46.

    See de Brouwer, supra note 40, at 665 (citing 2014 ICTR Best Practices Manual, supra note 40).

  47. 47.

    Indeed, the ICTY Appeals Chamber affirmed in the context of sexual violence charges “that there is no requirement that an alleged victim personally testify in a case for a trial chamber to make a finding that a crime was committed.” The Prosecutor v. Đorđević, IT-05-87/1-A, Judgement, ¶ 857 (ICTY Appeals Chamber, Jan. 27, 2014), available online.

  48. 48.

    Note, however, that because of the difficulty in collecting this kind of evidence in conflict or post-conflict settings, forensic evidence should not be—and has not been—considered crucial to proving SGBC cases before international criminal tribunals. Nevertheless, healthcare providers should preserve forensic evidence when conducting medical examinations following a sexual assault, when possible. Various jurisdictions have adopted guidelines for healthcare providers to follow when dealing with victims of SGBC. See, e.g., South Africa: Department of Health, The primary healthcare package for South Africa—A set of norms and standards; Convention on the Elimination of Discrimination against Women, Responses to the list of issues and questions with regard to the consideration of the combined initial, second, third, fourth, fifth and sixth periodic reports: Liberia, U.N. Doc. CEDAW/C/LBR/Q/6/Add.1, May 11, 2009, ¶ 11, available online.

  49. 49.

    WCRO Investigations Report, supra note 17, at 53.

  50. 50.

    The Prosecutor v. Théoneste Bagosora, et al., ICTR-98-41-T, Judgement and Sentence, at 568 (ICTR Trial Chamber I, Dec. 18, 2008), available online. See also Kelly Askin, Can the ICC Sustain a Conviction for the Underlying Crime of Mass Rape without Testimony from Victims?, ICC Forum (Jun. 2012), available online. Note, however, that there have been cases where a Trial Chamber may simply be unconvinced that the non-direct victim testimony is sufficiently reliable or probative. Indeed, in the Bagosora, et al. case, Bagosora’s three co-accused were each acquitted of the charge of rape as a crime against humanity “when the judges found the linkage evidence lacking.”

  51. 51.

    See The Prosecutor v. Vlastimir Đorđević, Vol. I, IT-05-87/1-T, Judgement, ¶ 832 (ICTY Trial Chamber II, Feb. 23, 2011) [hereinafter Đorđević Trial Judgement], available online. (The witness heard the girl “screaming and crying,” and indicated that the girl returned “wrapped in a blanket and appeared to be naked.”)

  52. 52.

    The Prosecutor v. Vlastimir Đorđević, IT-05-87/1-A, Appeal Judgement, ¶ 857 (ICTY Appeals Chamber, Jan. 27, 2014), available online.

  53. 53.

    See, e.g., The Prosecutor v. Mićo Stanišić and Stojan Župljanin, Vol. I, IT-08-91-T, Judgement, ¶ 653 (ICTY Trial Chamber II, Mar. 27, 2013), available online, (specifically referencing a report by the Special Rapporteur to the UN regarding the displacement of Muslims from Travnik, who had been driven in buses by Serb forces to Muslim-controlled territory, and in some instances beaten, raped, and killed during transport).

  54. 54.

    See, e.g., Đorđević Trial Judgement, supra note 51, ¶¶ 1996–1999 (relying on NGO and media reports to conclude that the accused was well aware of information which made sexual violence foreseeable in that case).

  55. 55.

    WCRO Investigations Report, supra note 17, at 80.

  56. 56.

    See, e.g., First Responders, supra note 5, at 2–3.

  57. 57.

    See 2008 ICTR Best Practices Manual, supra note 36, ¶¶ 63, 66.

  58. 58.

    Such guidelines could, for instance, include checklists for the collection of evidence. In addition, they could advocate, as other best practices efforts have, see 2008 ICTR Best Practices Manual, supra note 36, ¶ 25, implementation of a standard interview protocol through, for example, a model questionnaire and model witness statement, which would not only help ensure proper treatment for SGBC survivors but also increase the likelihood that investigative methodology and procedures will be conducive to eliciting useful testimony.

Seelinger Avatar Image Kim Thuy Seelinger, J.D. Director, Sexual Violence Program, Human Rights Center University of California, Berkeley—School of Law

How can the ICC OTP secure better cooperation from first responders and those working on the ground with victims and survivors to assist in the investigation and prosecution of Sexual and Gender-Based Crimes?

Traditionally, the coordination and cooperation between local actors and the ICC Office of the Prosecutor (OTP) has varied greatly and has, in general, been wrought with challenge.

Summary

The ICC Prosecutor has made accountability for sexual violence a central priority, as evidenced by the development of her Office’s thoughtful and comprehensive Policy Paper on Sexual and Gender-based Crimes, issued in June 2014.1 Increasingly, the Prosecutor seeks collaboration with domestic actors who can collaborate on and support the investigation and prosecution of crimes of sexual and gender-based violence under the Rome Statute.

Traditionally, the coordination and cooperation between local actors and the ICC Office of the Prosecutor (OTP) has varied greatly and has, in general, been wrought with challenge. Unsurprisingly, this is often the case among state actors such as the local police, public hospitals, or the government forensic laboratory, where the state is not politically supportive of the OTP’s activities. However, even in cases where the OTP’s efforts enjoy political support, local actors may still be limited in their ability to contribute valuable information about SGBCs due to their own capacity constraints. As important, if not more so, is their potential reluctance to do so.

In this brief article, I note the importance of:

  1. thinking expansively about potential local partners who may have information about SGBCs to share,
  2. understanding the capacity-related challenges local actors may face in documenting SGBCs generally as well as their lack of awareness of how to engage the OTP, and
  3. understanding local actors’ reluctance to cooperate with ICC investigations in order to address this hesitation.

I offer some practical suggestions to improve local awareness of how to support the OTP’s investigations of SGBCs, as well as thoughts as to how to improve their willingness to do so.

Argument

ICC Prosecutor Fatou Bensouda has made accountability for sexual violence a central priority, as evidenced by the development of her Office’s thoughtful and comprehensive Policy Paper on Sexual and Gender-based Crimes, issued in June 2014.2 Increasingly, the Prosecutor seeks collaboration with domestic actors who can collaborate on and support the investigation and prosecution of crimes of sexual and gender-based violence under the Rome Statute.

Traditionally, the coordination and cooperation between local actors and the ICC Office of the Prosecutor has varied greatly and has, in general, been wrought with challenge. Unsurprisingly, this is often the case among state actors such as the local police, public hospitals, or the government forensic laboratory, where the state is not politically supportive of the OTP’s activities. However, even in cases where the OTP’s efforts enjoy political support, local actors may still be limited in their ability to contribute valuable information about SGBCs due to their own capacity constraints. As important, if not more so, is their potential reluctance to do so.

Two initiatives of the Human Rights Center highlight ways to enhance the ability and willingness of first responders to cooperate with the ICC OTP.

First, in 2014, the HRC convened an international conference in Salzburg, Austria, at which members of the ICC OTP and key NGO representatives discussed how local and international NGOs, journalists, forensic scientists, health professionals, and other “first responders” to war crimes and human rights violations can most effectively work with the International Criminal Court (ICC) in the collection of evidence of serious international crimes, such as genocide and crimes against humanity. Workshop findings and recommendations were captured in the report, First Responders: An International Workshop on Collecting and Analyzing Evidence of International Crimes.3

Second, in terms of SGBCs in particular, results of our 2011–2014 study on domestic accountability for sexual and gender-based crimes are presented in The Long Road: Domestic Accountability for Sexual Violence in Conflict and Post-Conflict Settings and a forthcoming, separate report on eastern Democratic Republic of Congo.4 These resources illuminate ways to understand local actors’ capacity challenges and reluctance to cooperate, so that they can be addressed individually.

Here, I draw from both projects to outline a few key thoughts on how we might improve both the ability and willingness of local actors to support the OTP’s investigation and prosecution of SGBCs.

I. Widening the aperture: Which local actors are relevant to the investigation and prosecution of SGBCs?

It’s first important to define our target. When we speak of enhancing local actors’ ability and willingness to assist the ICC Prosecutor in the investigation and prosecution of Sexual and Gender-based Crimes (SGBCs), which local actors do we even mean?

We tend to think of traditional human rights defenders as being the primary documenters of wartime atrocities—international or grassroots actors from within civil society who take photos, collect records, interview survivors, and compile reports and dossiers for potential future truth commissions or prosecution by international tribunals. Increasingly, these human rights defenders are collecting evidence of conflict-period sexual violence as part of the harms they document.

However, we should think expansively about the potential network of local actors who may have access to information about the SGBCs committed in the context of a specific conflict. From our Long Road research on domestic accountability mechanisms for sexual and gender-based crimes in five conflict-affected countries, we sketch out the following rough typography of relevant actors who are based on the ground:

  1. Medical care providers, including staff of local hospitals (especially those with gender-violence recovery centers or reproductive healthcare units) and medical staff in refugee or internal displacement camps. This includes those providing psychosocial support.
  2. Leaders of displaced communities, who are chosen as representatives in the immediate wake of violence. Often, refugee and IDP communities establish their own community governance structures when displaced—these can range in terms of formality, but they are always worth exploring. Individual leaders may not have firsthand knowledge of sexual or gender-based crimes committed against their community members, but they can often provide effective referral within the group—whether in a camp or more decentralized setting.
  3. Civil society organizations working with survivors of sexual and gender-based violence, like the Coalition on Violence Against Women (COVAW), which provided psychosocial and legal counseling after the 2007–2008 post-election violence in Kenya or the Refugee Law Project in Uganda, which supports both male and female refugees violated in conflict-affected homelands like Northern Uganda, Rwanda, and the Democratic Republic of the Congo.
  4. Religious leaders, places of worship, and faith-based organizations, which are so often providers of physical shelter and material support during crisis periods. For example, Filadelfia Women’s Crisis Center in Nakuru, Kenya, or the Muslim Women’s Association in the Umpiem Mai camp on the Thai-Burma border.
  5. Local human rights defenders, who document war crimes, crimes against humanity, and acts of genocide during and after crisis through survivor declarations, news collection, photography, etc, for future investigation and prosecution. These groups include the Global Justice Research Project (GJRP) in Liberia and the Independent Medical Legal Unit (IMLU) in Kenya. Their documentation often includes crimes of sexual violence.
  6. Local police, where they remained operational during emergency periods.
  7. Local forensic analysts, where forensic laboratories exist and have collected physical evidence—e.g., blood, bones, weapons—for examination.
  8. Humanitarian actors like the UN High Commissioner for Refugees (UNHCR) where it is provides direct protection efforts, and other international groups providing services mid-crisis or in displacement such as the International Committee of the Red Cross, International Rescue Committee, Caritas, and the International Medical Corps.
  9. Members of local human rights commissions, where the commission was independent and conducted fact-finding, like Kenya’s Commission of Inquiry on Post-Election Violence (CIPEV or “the Waki Commission”).
  10. Local journalists with a reputation for independent and ethical investigation.

Although not all of these actors will be useful or willing in all cases, it is important to identify, and be receptive to, a wide variety of potential sources at the outset.

II. Understanding Capacity and Awareness Challenges: Willing collaborators’ ability to collect and share useful information

Where a local actor may be willing to cooperate with the ICC OTP, its potential contribution can still be limited by internal capacity challenges and lack of clarity with respect to how to work with the OTP.

Our research in Kenya, Uganda, Liberia, Sierra Leone, and eastern Democratic Republic of Congo highlighted ways in which limited capacity and general collapse of infrastructure in conflict-affected areas contributed to a near universal failure to collect evidence of crimes of sexual violence contemporaneously.

For example, the healthcare providers who were able to operate during periods of conflict in Kenya, Liberia, Sierra Leone, or Uganda were often the first, and only, point of call by a survivor of sexual violence. But at the time, few healthcare providers had received training in the collection and management of forensic evidence. Even if they had been trained, evidence gathering and preservation for possible prosecution later simply were not priorities during an emergency period.5 A women’s rights advocate in Monrovia noted that, during Liberia’s second civil war, no one delivering emergency medical services to sexual violence survivors stopped to ask a patient, “What happened?”6

Similarly, the likelihood of the police investigating conflict-period cases of sexual violence was slim. Not only was reporting non-existent, but in many places, complaints of violence could often only be submitted in one’s neighborhood police district anyway. This made reporting futile even for survivors who might want to come forward but who were displaced by the crisis. A Liberian prosecutor reminded, “During wartime, there was no legal process. We were all just trying to survive.”7

Moreover, the sheer task of documenting and investigating sexual violence as it can occur during conflicts is daunting—particularly when it involves armed actors. Several interviewees also mentioned the great difficulty in identifying direct perpetrators if they were members of an unfamiliar group or otherwise foreign to a survivor’s community. Similarly, it was often difficult for survivors to provide information about ties to higher-level commanders who were not at the scene of the crime.

Many interviewees noted that even now, police lack sufficient competence or sensitivity to handle day-to-day cases of sexual and gender-based violence. In Kenya and Uganda, key informants noted that because sexual and gender-related crimes are not adequately incorporated into the police academy curriculum, members of the general police force are insufficiently familiar with how to handle these cases, resulting in weak investigations and case files that are not useful in court. Some informants also mentioned police officers’ gender bias or lack of prioritization of gender-related crimes as obstacles to effective response.

At this point in time, the national and local police are even less likely to be trained or capacitated with regard to international crimes. They typically focus on the implementation of domestic penal laws. The specific evidentiary requirements and rules of admissibility relevant to the ICC are not yet an area of training or facility.

It’s not just state actors. As HRC colleagues noted in our First Responders report:

“Most NGOs are not trained in evidence-gathering techniques and therefore may not capture information about crimes in ways that are court admissible. For example, first responders may be unaware of ways to collect evidence in a manner that allows for its authentication by the OTP. Thus, there is a need to develop trainings and disseminate guidelines on how to collect evidence of crimes in ways that will maximize its potential probative value in court.”8

Finally, unless they are directly contacted by the ICC OTP, many willing collaborators may be unsure of how to contact or engage with the OTP in general. As noted in First Reponders, the report of our September 2014 Workshop to discuss cooperation between the OTP and first responders, there is a lack of guidance regarding NGOs’ roles and responsibilities with regard to international investigations or trials, or the responsibilities of the ICC in the context with local partners. This is presumably also the case among actors who may be interested in sharing information regarding SGBC specifically.

III. Addressing Reluctance and Risk: Local actors’ willingness to share SGBC evidence with the OTP

There are several reasons that relevant local actors may not be willing to share information and possible evidence of SGBCs with the ICC OTP.

Some of these reasons are general hesitations that many other groups may have—security risks to staff members seen to be cooperating with an international investigation, lack of willingness to step onto the “conveyor belt” that may lead to a protracted engagement with the Court, or apprehension about the nature and mechanics of a working relationship with the OTP.

It seems that certain local actors who may have access to information about SGBCs committed during periods of armed conflict may have specific concerns about becoming involved in any investigation efforts—not just those led by the OTP.

For example, healthcare providers at both large international humanitarian relief organizations and public hospitals and clinics often treat survivors of SGBCs during and in the immediate wake of conflict periods. They may provide post-rape care, testing for pregnancy, HIV and sexually-transmitted infections; they may offer counseling and psychosocial support. However, the healthcare providers we interviewed in Kenya, Liberia, Sierra Leone, Uganda, and eastern Democratic Republic of Congo routinely explained that during crisis periods, they literally work in triage, trying to provide emergency care not just for SGBV survivors but for the entire community affected by violence. In this context, it is difficult to meet even basic documentation standards. Taking on any additional degree of enhanced documentation or specimen collection that might later support an investigation for international crimes seemed entirely overwhelming. Social workers and shelter providers expressed similar concerns.

Perhaps more importantly, local actors providing medical and psychosocial support noted an ethical dilemma that they faced when confronted with the possibility of supplying the investigators with evidence of SGBCs. First, they did not see themselves as “evidence collectors.” Second, they frequently noted that cooperating with an investigation could compromise their roles as neutral sources of clinical and therapeutic care for survivors. Many felt that survivors would not come forward for healthcare and counseling if they thought the provider was turning over medical or counseling files to prosecutors.

Further, many of the local actors who traditionally work with survivors of SGBCs expressed reluctance to push their clients or patients into the justice system when there was little chance of swift conviction and little to no witness protection offered.

IV. Recommendations

My recommendations regarding the improvement of the capacity and awareness of the ICC, and addressing reluctance to engage with the ICC OTP are as follows:

A. Identification and mapping of relevant actors

In preparing to identify priority and appropriate sources of SGBC-related information in a country, the OTP should ensure that its due diligence on local investigation and accountability efforts includes:

  1. Research on local gender norms, traditional practices, and colloquial terminology related to sexual and gender-based violence in the target community, to provide important context for outreach and engagement with local actors on the issue of SGBCs.
  2. Identification and mapping of the main civil society and governmental actors on the ground and what their general process and challenges are with respect to documentation of SGBCs. This means developing a close understanding of any specialized units focused on sexual and gender-based violence, as within the police force or at local hospitals. This exercise can help refine a list of possible actors and help develop realistic expectations about the kinds of information they may provide.
  3. Identification of any disparity between the Rome Statute and provisions in domestic penal law regarding sexual and gender-based crimes, to detect and address definitional and procedural differences.
  4. Engagement of relevant external researchers or even supervised law students who are part of university law clinics (not necessarily in the situation country) to supplement this preparatory work.
B. Resources and Guidance

To improve the quality of SGBC evidence collected by local actors, the OTP and its outreach partners should distill key resources into formats or modules that can be easily consumed by local actors. Specifically, such resources may include:

  1. The ICC Prosecutor’s Policy Paper on Sexual and Gender-based Crimes, released in June 2014;9
  2. The International Protocol on the Documentation and Investigation of Sexual Violence in Conflict (2014);10
  3. IICI Guidelines for Investigating Conflict-Related Sexual and Gender-based Violence Against Men and Boys (2016);11
  4. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2004);12
  5. WHO Ethical and Safety Guidelines for Researching, Documenting, and Monitoring Sexual Violence in Emergencies (2007);13
  6. WHO Ethical and Safety Guidelines on Interviewing Trafficked Women (2003);14
  7. WHO / UNODC Guidance on Strengthening the Medico-Legal Response to Sexual Violence (2015).15
C. Engaging the ICC OTP

To help illuminate the ways in which a local actor might directly engage or support the OTP’s investigation of SGBCs, local groups need more information about the ways in which they can support the OTP and what the nature of that relationship would entail. For this reason, the OTP should develop and disseminate simple guidance about engaging with the ICC generally, including:

  1. What information regarding SGBCs does the OTP need, both generally as to evidentiary requirements, and specifically as to the relevant scope of SGBCs?
  2. What is the potential value of patterns evidence, which may derive from aggregated, anonymized records of SGBC-related service provision or other data local actors may already possess?
  3. How can the admissibility of any information shared be ensured?
  4. What does the information-sharing relationship and process entail, and how can individuals or groups access the OTP?
  5. What forms of protection and support can survivors of SGBC expect if they engage in the ICC process?
  6. What assurances or efforts can the OTP make regarding the security of local staff who engage with them, including ways to alert local partnering organizations of key developments and planned announcements related to the case at hand?
D. Dissemination

The OTP and development partners should think creatively about dissemination of the above resources and material. Dissemination of tools, resources, and information about the ICC and SGBC evidence collection should be approached creatively.

For example, in preparing to launch of our Long Road study at the 2015 Missing Peace Practitioners’ Workshop in Kampala, Uganda, we created a resource library of all the prosecution handbooks, clinical care guidelines, interview checklists, etc. used by the local police, nurses, and prosecutors we had interviewed in five countries. We made this “practitioners’ resource library” available to Workshop participants on flashdrives. We also put the entire resource library online for public access after the Workshop.16 A similar repository of practice-oriented resources for the documentation of SGBCs under the Rome Statute could be created.

Similarly, social media and easily-digested platforms like YouTube might be promising ways to roll out short training modules in local languages.

E. Strengthening the base

Development partners and relevant government ministries should continue to support the training and capacity of healthcare workers, police, and other state actors to identify and document day-to-day crimes of sexual and gender-based violence. While elements and evidentiary requirements relevant to international crimes of sexual violence should be introduced into training curricula, it is critical to improve the baseline capacity, so a stronger response and documentation system is in place in case of future crises.

F. Improving willingness of specific actors

Specific materials and outreach should be tailored to healthcare providers, humanitarian relief agencies, and other actors who may have specific concerns about the preservation of institutional neutrality, particularly in a conflict-affected community. To the extent that these local actors’ reluctance to share information derives from their desire to protect individual survivors from exposure, the OTP should highlight the possibility of accessing anonymized, aggregated case information to at least establish patterns of SGBC commission in a given time period or geography. They may be willing to provide some forms of evidence more readily than others.

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

  1. 1.

    Office of the Prosecutor, International Criminal Court, Policy Paper on Sexual and Gender Based Crimes, (Jun. 2014), available online, archived.

  2. 2.

    Id.

  3. 3.

    Stephen Smith Cody, Alexa Koenig, Andrea Lampros, & Julia Rayner, UC Berkeley HRC, First Responders: An International Workshop on Collecting and Analyzing Evidence of International Crimes, at 6 (Sep. 2014) [hereinafter First Responders] available online, archived.

  4. 4.

    Kim Thuy Seelinger & Julie Freccero, UC Berkeley HRC, The Long Road: Accountability for Sexual Violence in Conflict and Post-Conflict Settings (2015) [hereinafter Long Road] available online, archived.

  5. 5.

    Interview with an anonymous nurse, in Monrovia, Liberia (Aug. 2012).

  6. 6.

    Interview with an anonymous women’s rights advocate, in Monrovia, Liberia (Aug. 2012).

  7. 7.

    Verbal statement by a Liberian Prosecutor, participant at Missing Peace Practitioners’ Workshop on Accountability for Sexual Violence, in Kampala, Uganda (Aug. 2015).

  8. 8.

    First Responders, supra note 3, at 4.

  9. 9.

    SGBC Policy, supra note 1.

  10. 10.

    Foreign & Commonwealth Office, United Kingdom, International Protocol on the Documentation and Investigation of Sexual Violence in Conflict (Jun. 2014) available online, archived.

  11. 11.

    Institute for International Criminal Investigations, Guidelines for Investigating Conflict-Related Sexual and Gender-based Violence Against Men and Boys (Feb. 29, 2016) available online, archived.

  12. 12.

    High Commissioner for Human Rights, United Nations, Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, HR/P/PT/8/Rev.1 (2004) available online, archived.

  13. 13.

    World Health Organization, Ethical and Safety Recommendations for Researching, Documenting, and Monitoring Sexual Violence in Emergencies (Aug. 10, 2007) available online, archived.

  14. 14.

    World Health Organization, Ethical and Safety Recommendations for Interviewing Trafficked Women, at 16, 23 (2003) available online, archived.

  15. 15.

    World Health Organization & United Nations Office on Drugs and Crime, Strengthening the Medico-Legal Response to Sexual Violence (Nov. 2015) available online, archived.

  16. 16.

    Missing Peace Document Database, UC Berkeley HRC, available online (last visited Apr. 4, 2016).

Whiting Avatar Image Alex Whiting, J.D. Professor of Practice Harvard Law School

The ICC OTP Cannot Do It Alone: New Institutions are Required to Support the Work of First Responders

SGBV cases are among the most challenging to investigate because victims are typically isolated, often face enormous social barriers to coming forward, and can be particularly susceptible to intimidation.

Summary

First responders are critical to the work of the ICC OTP, but there are barriers that impede greater cooperation between the OTP and those who may be a position to collect valuable evidence of ICC crimes. The mission of the OTP is distinct from that of most first responders and imposes duties on the OTP—in particular disclosure and ensuring the safety of witnesses—that constrain the Office’s ability to cooperate with outside investigators and human rights bodies. While the ICC OTP can take certain important steps to improve its relationship with first responders, and thereby benefit from work of outside actors, more ambitious solutions are required. The ICC OTP and the international community should design and support new institutions that can coordinate and support first responders and facilitate interactions with the Court.

Argument

First responders are essential to the success of the ICC. Given the limited powers and resources of the Court, and the difficulties that international investigators often face getting access to the “scene of the crime,” first responders will often be the only actors with the opportunity to gather evidence that may only be available while or just after crimes are being committed. As the Office of the Prosecutor explained in its Strategic Plan for 2016–2018:

The time gap between events on the ground and the moment when the Office can investigate can result in loss of evidence. This is contrary to the “golden hour” principle which recognizes that the sooner one can be at a crime scene, the higher the chances are that better quality evidence and leads will be discovered. If the Office can ensure—with the assistance of partners—that evidence is preserved without doing harm, it will increase the chance of having efficient and effective investigations and prosecutions.1

This dependence on first responders will be particularly acute when the alleged crimes include sexual and gender-based violence (SGBV). These cases are among the most challenging to investigate because victims are typically isolated, often face enormous social barriers to coming forward, and can be particularly susceptible to intimidation. First responders will have opportunities in the early days to secure physical, forensic and witness evidence, and can later help steer investigators to the most fruitful areas of inquiry.

It would seem then that the OTP at the ICC would be committed to assisting and collaborating with first responders. And in many ways it is. In the OTP’s Policy Paper on Sexual and Gender-Based Crimes, the Office recognizes the critical role of first responders and pledges to support their work:

The Office also recognizes the crucial role that civil society plays in preventing and addressing sexual and gender-based crimes. International and local non-governmental organizations are often the first to respond to incidents of sexual and gender-based crimes, undertaking documentation of such crimes, and providing significant medical, psychosocial, material, and legal support to victims. The Office will seek to support and strengthen cooperation with these organizations, particularly those which have experience in documenting sexual and gender-based sexual and gender-based crimes and working with victims of these crimes.2

But aside from adding that the Office will build “networks,” the policy is notably short on details. The reality is that while the OTP can take some steps to support the work of first responders, the mission and design of the Court pose significant, and often insurmountable, challenges to greater cooperation. The real solution lies not so much in direct steps that the OTP can take in its interactions with first responders, but rather in a more dramatic proposal: the creation, with the support of the OTP, of new institutions to promote and coordinate the work of first responders and to serve as a bridge between the ICC and those first responders.

Before turning to this idea, it is worth pausing on the challenges that impede collaboration as too often they are underestimated. In fact there are at least five interrelated reasons why it is difficult for the OTP to work more closely with first responders: mandate, resources, disclosure, protection of victims and witnesses, and the rights of the accused.

The ICC has a very specific mandate—the investigation and prosecution of individuals for violations of the three crimes within the Court’s jurisdiction (war crimes, crimes against humanity, and genocide)—whereas first responders often have (and should have) broader goals, including advocating for systemic change as well as fighting for assistance to and reparations for victims. Criminal and non-criminal inquiries require approaches that overlap but are nonetheless distinct, and can sometimes even clash. A criminal investigation requires a deep and extremely detailed inquiry focused on the actions of specific individuals, as well as evidence that can satisfy the most rigorous standard of proof beyond a reasonable doubt. Non-criminal investigations will be broader, focusing on systems of power and obligations towards victims. Moreover, the ICC will investigate only its specific crimes, and not other forms of criminality that are commonly associated with mass atrocity, such as corruption, arms trafficking, and organized crime.

First responders will therefore need to make choices: to focus on ICC crimes, other crimes, individual liability, systemic forces, or broader wrongdoing? Some investigation will be relevant to all areas, but inevitably there will be divergence. Investigations require focus, and the methods of investigation and types of proof required will be different depending on the goals of the inquiry. Advocacy campaigns can benefit from information derived from broad surveys, whereas criminal investigations must be founded on detailed interviews with individual witnesses. From the beginning, therefore, it can be difficult to align the work of first responders and the ICC. If first responders wish to pursue objectives that are broader than an ICC investigation, they may very well collect information that is useful to those goals, but not sufficiently reliable for a subsequent criminal case.

Second, there is the question of resources. The ICC has an extremely limited budget and the Assembly of States Parties has made it clear that the Court’s mandate will not include capacity building. That does not mean it will have no role in supporting first responders—it can share expertise and give guidance and participate in trainings—but the availability of personnel to participate in these activities will be limited. There is in addition a timing problem. The Court will ordinarily not commit resources to a situation until it begins its investigation, which is usually long after first responders need support. The Court can provide some standard guidance to first responders, but often it must be tailored to the specific aspects of each situation.

Third and fourth, even if first responders choose to focus on ICC crimes from the beginning, the related problems of disclosure and witness/victim protection arise. Article 67 of the Rome Statute3 obligates the Prosecutor to disclose to the defense all evidence that is potentially exculpatory and Rule 77 of the ICC Rules of Procedure and Evidence4 requires the prosecution to disclose information that is “material to the preparation of the defense.” These rules have been interpreted broadly (overly so in my view) and that has very important implications for the investigative phase. ICC investigators must assume from the start of their inquiry that everything they collect, everything, will be disclosed to the accused. Moreover, the investigators must anticipate in advance how the Court will protect witnesses who will be put into jeopardy by disclosure. Article 68 of the Rome Statute, as interpreted by the ICC Appeals Chamber, requires the Court to protect all those who are put into danger as a result of their interactions with the Court. These dual obligations of disclosure and witness security are particular to criminal investigations and are stringently applied at the ICC, presenting significant constraints not faced by those conducting non-criminal inquiries. Furthermore, they create barriers to greater cooperation between the ICC and first responders. First responders have an interest in gathering information quickly for advocacy or relief purposes, and will often be willing to protect the anonymity of witnesses. This means that the ICC cannot accept the work of first responders unless it is first satisfied that the questions of disclosure and security have been considered and addressed with respect to each witness.

Finally, the ICC has a duty to protect the rights of suspects. Article 54 requires the Prosecutor to “investigate incriminating and exonerating circumstances equally,” and persons cannot be charged by the Court without due process, meaning that the judges must find that sufficient evidence has been presented to the requisite standard according to the procedures established in the Statute. Moreover, to preserve the integrity of the investigation, the prosecution ordinarily cannot share details of its inquiry or the potential targets until it presents its case in court. To do otherwise would be unfair to the suspects and could give those who are hostile to the work of the ICC opportunities to disrupt the investigation. But these realities complicate cooperation between the ICC and first responders. The ICC is often willing to receive information, with the limitations described above, but it will not share information, a stance that can be difficult for some first responders to accept.

Given these barriers to full cooperation between the ICC and first responders, what is the way forward? To be sure, there are some concrete steps that the Office of the Prosecutor at the ICC can take to secure better cooperation from first responders, particularly in SGBV investigations. First, the ICC must continue to educate those who might support the work of the Court about the functioning of the ICC and the features of the Court that can constrain cooperation. To that end, it is laudable that the OTP aims to be transparent about its work, issuing policy papers about its approach to SGBV crimes,5 preliminary examinations,6 interests of justice,7 victim participation,8 and a draft paper on case selection and prioritization.9 It is institutionally impossible to have complete cooperation between first responders and the Court, but if both sides understand the work of the other and the limitations on cooperation, then the relationship can be better managed.

Second, the OTP should continue to contribute to projects that seek to provide guidelines or recommendations of best practices to first responders. There are steps that first responders can take that will maximize the chances that they will collect evidence that could be used for later criminal inquiries. For example, they can routinely ask witnesses if they consent to their statements being provided to the ICC and they can ask questions to determine if witnesses are in possession of valuable physical or forensic evidence (photos, video, diaries, phone records, etc.) and take steps to ensure that this evidence is preserved.

Third, the OTP should explore ways that it can guide first responders as situations unfold. While it cannot share the details of its own investigations, there is often no reason it could not provide broad guidance to first responders about the alleged crimes or events that might be of most interest to the OTP. This would allow first responders to focus their efforts and make better decisions about how they collect information.

These steps are important but are ultimately limited. A bolder step is required: the creation of new institutions to coordinate and guide the work of first responders. In a little-discussed part of its Strategic Plan for 2016–2018,10 the OTP embraces precisely this idea. The last of the OTP’s nine strategic goals is to “develop with partners a coordinated investigative and prosecutorial strategy to close the impunity gap.”11 To this end, the OTP proposes that institutions be established to perform five essential functions: a knowledge center, evidence preservation center, open source crime database, a platform for the exchange of confidential information, and a capacity building center.12

These institutions would operate as both horizontal and vertical bridges. Horizontally, they would coordinate and maximize investigative efforts across various organizations responding to crisis situations. At present, when atrocities occur, various groups (both international and local) rush in to investigate and collect information. There is enormous duplication in efforts. Multiple organizations investigate the same events, collect similar evidence, and interview the same witnesses several times. In addition, groups mobilize to begin trainings for local actors, often offered in an ad hoc fashion. Finally, much of the evidence that pours out of the area of crisis is disorganized and unanalyzed. For example, it is quite common now after episodes of atrocity and civil unrest to see massive numbers of videos posted online.

All of these disparate efforts could be better organized and coordinated if there were institutions dedicated to supporting and managing the efforts of international and local organizations in crisis situations. Of course some institutional competition is healthy and there will never be perfect coordination, but many groups would welcome the opportunity to benefit from the work of other bodies and to contribute their efforts only to those areas where there existed a genuine need. These centralized institutions could also develop training programs that could be adjusted to new situations and could assist in the storage and processing of evidence.

Vertically, these institutions could connect the Court to first responders. They could guide the first responders in their work and help filter evidence from the ground to the Court. They could help process, analyze, and store evidence (for example videos) and help manage the transfer of relevant evidence. These institutions would not address all of the challenges that prevent perfect coordination between the ICC and first responders, because at bottom these challenges are grounded in the differing missions of the Court and most first responders, but they could go a long way toward bringing the different actors together and making the work of the first responders more productive.

The OTP should make it priority to promote the creation of these institutions, and states and organizations interested in ending impunity and promoting justice should give them serious consideration. There is an enormous need to be filled and a tremendous opportunity to maximize the work of diverse international and local actors in times of crisis. The work of the ICC depends on the work of first responders, first responders need support and coordination, the ICC is institutionally limited in its ability to perform these functions, and therefore new institutions are required to fill the gap. By creating efficiencies and eliminating duplication, these institutions might even save resources in some instances. What is clear is that international criminal justice requires a more concerted and organized effort to collect valuable evidence in the “golden hour” after atrocities occur. Who is going to do it?

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

  1. 1.

    Office of the Prosecutor, International Criminal Court, Strategic Plan 2016–2018, ¶ 24 (Jul. 6, 2015) [hereinafter Strategic Plan 2016–2018] available online, archived.

  2. 2.

    Office of the Prosecutor, International Criminal Court, Policy Paper on Sexual and Gender Based Crimes, ¶ 107 (Jun. 2014), [hereinafter SGBC Policy Paper], available online, archived.

  3. 3.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute].

  4. 4.

    International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3, R. 63(2) (2013), available online, archived.

  5. 5.

    SGBC Policy Paper, supra note 2.

  6. 6.

    Office of the Prosecutor, International Criminal Court, Policy Paper on Preliminary Examinations (Nov. 2013), available online, archived.

  7. 7.

    Office of the Prosecutor, International Criminal Court, Policy Paper on the Interests of Justice (Sep. 2007), available online, archived.

  8. 8.

    Office of the Prosecutor, International Criminal Court, Policy Paper on Victims’ Participation (Apr. 2010), available online, archived.

  9. 9.

    Office of the Prosecutor, International Criminal Court, Draft Policy Paper on Case Selection and Prioritisation (Feb. 29, 2016), available online, archived.

  10. 10.

    Strategic Plan 2016–2018, supra note 1.

  11. 11.

    Id. at 31.

  12. 12.

    Id. at 32–33.