I. Balancing Concerns and Importance of Victim Testimony

A. Problems with Eliciting Rape Victims’ Testimony

Proponents of changing the form of evidence needed to sustain a conviction against a defendant at the ICC, by permitting solely indirect evidence, express concerns regarding victims’ health and safety given their living environments and cultural conditions. These problems include victims’ fear of retaliation, distrust and dysfunction of the criminal justice system, a sense of shame, and fear of rejection by partners, society, and the ‘marriage market.’2 Upon being raped, women in some cultures are ostracized from the community. This stigmatization and alienation contributes greatly to psychological disorders such as post-traumatic stress disorder (PTSD), depression, and others for which medical attention is often times not available. Another concern deals with the danger women face by testifying and speaking with investigators. If a victim were to speak to ICC investigators either inside or outside of the home community, or make the long journey to The Hague to testify, it is likely that community members would notice their absence and suspect the crime that had been perpetrated upon them. Community members or perpetrators learning of the rape may consequently subject the victim to physical or mental harm, further attack, loss of property, or other devastation.

B. Victim Protection

The Rome Statute provides for witness and victim protection. It permits the court to take “appropriate measures” to protect victims and witnesses as long as the measures are not “prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.”3 In 2006, the ICC decided that the “witnesses in the trial of LRA leaders would be anonymous to protect them from reprisals by other rebels at large and sympathizers.”4 The ICC has thus permitted witnesses to testify anonymously, which has contributed to victim safety, protection, and decreased fear. Furthermore, in camera proceedings, non-disclosure of public records that may identify the victim, image and voice altering technology, closed circuit television, and the use of pseudonyms are used, as they were in the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”), to safeguard the privacy and security of victims.5 Moreover, the Trial Chamber can order portions of the proceedings to be conducted in closed session for the safety and security of the victim. In addition, the ICC, non-governmental organizations (“NGOs”), and other institutions are actively conducting programs to promote the protection of victims who testify.

C. Balancing the Defendant’s Due Process Rights

These aforementioned concerns with direct victim testimony must be balanced with the defendant’s due process rights in accordance with the pursuit of justice. The accuser in mass rape trials at the ICC is the rape victim herself, not the court and not other scientific witnesses. An interesting agency law concept can be imposed on the issue of who the defendant’s “accuser” really is. The Office of the Prosecutor (OTP), the medical experts, and other experts are not the accusers; they are merely agents of the principal, the victim. The formality of the prosecution “accusing” the victim should not be a blinder to the real accuser: the rape victim herself. Article 67(1)(e) of the Rome Statute presents the defendant’s “right to examine” witnesses against him. It provides,

In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality …

(e) to examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her…6

This guarantee contemplates the confrontation of the witness, principally the victim. The ICC judges have acknowledged that minimum guarantees “must be generously interpreted” in order to safeguard the right to a fair trial.7 The right to confront one’s accusers, which in mass rape cases are the victims themselves, pervades throughout the world’s major criminal justice systems. This requires the appearance of the accuser, the rape victim, at trial as the principal of other witnesses, and in the presence of the accused.8 If the victim is not present to testify, then the defendant is not receiving his right to confront his true accuser.

The idea behind this notion in the adversarial system involves the accused not only being aware of what the accuser is saying about him but to be able to observe the victim’s demeanor and to be present while the victim is presenting his or her evidence against him.9 Additionally, direct victim testimony is also important because judges must be able to observe the victims’ demeanor to assess the reliability of testimony.10 The right to examine preserves an accused’s opportunity to not only test a victims’ recollection of the events, but also to challenge his conscience as well.11 Patricia M. Wald, a former ICTY judge, admits that cross-examination, which does not take place without live witness testimony, may be the most effective way to determine the value of the victim’s testimony.12 It allows the defendant to challenge the victims’ credibility, perception, and memory due to further inaccuracies that appear in a victim’s story.

The interplay between victims as principals and other witnesses as agents should not be a façade for the cross-examination of the true accuser: the victim. The agents of the victim who are testifying at trial, such as the medical expert or lab technician, merely provide an objective analysis or opinion for the court. They should not present testimony tainted with bias in favor of the victim and thus they cannot be the defendant’s true accuser. Consequently, it is paramount to the defendant’s due process rights for the victim, even if anonymous, to provide testimony of the occurrences through his or her eyes. As eyewitnesses who were present during the alleged crimes and who experienced the events first-hand, the victims themselves are the best positioned to recount the events.

Particular elements of the rape crime may sometimes require direct witness testimony in order for a conviction to be properly sustained. The ICC’s Trial Chamber I has acknowledged that ICC cases will present

infinitely variable circumstances in which the court will be asked to consider evidence, which will not infrequently have come into existence, or have been compiled or retrieved, in difficult circumstances, such as during egregious instances of armed conflict, when those involved will have been killed or wounded.13

Empirical research shows large variations across conflicts. In many instances, sexual violence is extremely prevalent and in others much less so.14 The existence of rape cannot be presumed in conflict regions that exhibit signals of sexual violence. Confrontation of victims will thus sometimes be required to ensure a valid conviction.15

II. Elements of the Rape Crime as a Crime Against Humanity

The rape crime under the ICC’s Rome Statute is both a crime against humanity and a war crime, under Article 7 and Article 8, respectively. The burden is on the prosecutor to prove each element of the rape crime “beyond a reasonable doubt” during the trial stage.16 Specifically, article 7(1)(g)-1, “Crime against humanity of rape,” recognizes rape as having four elements:

1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.
2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment or the invasion was committed against a person incapable of giving genuine consent.17
3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.18

This definition includes the elements of force and coercion; however, it recognizes that coercion can be shown by demonstrating that the individual who perpetrated the crime took advantage of coercive circumstances.19

III. Scenarios Indicating a Need for Direct Victim Testimony

A. Unavailability of Medical Professionals, Forensic Analysts, or Medical Data

Although medical data or forensic test results may in some cases be sufficient to prove the first element of the rape crime, invasion of the body, they may in other cases be inadequate or unavailable. Most problematic is the situation where forensic test results or other medical data are simply not available, rendering proof of the invasion of the body element more taxing for the prosecution. Without easy access to investigators and lab experts in remote and rural regions in Africa, such as in the Democratic Republic of the Congo (the “DRC”), Uganda, or Kenya for instance, the necessary specimens may not be well-preserved or identified. Such forensic analysts also deal with time limits in areas inflicted with disease, intervening causes, and chaos amidst conflict. Thus, many obstacles can be posed in fulfilling the needs of forensic analysis and thus forensic results may consequently be simply unavailable. Absent other evidence pointing towards invasion of the body, direct victim testimony regarding the particulars of the rape will be required in order to prove the invasion of the body element.

Another concern is that even if test results exist, they can be subject to manipulation, bias, and inaccuracies as with many other scientific techniques. Defense experts will likely challenge statistical and forensics evidence presented by the prosecution. For example, the defense presented expert testimony concerning crime statistics in several ICTY cases, such as in Galić, Milutinović, and others.20 Moreover, crime reports collected by law enforcement or human rights agencies based on the allegations presented by victims are also subject to bias. For example, the data on rape collected by the United Nations in the Central African Republic (“CAR”) contributed greatly to assessing the pattern related to the armed conflict in the OTP in 2002-2003. For such reports and analyses to be relied upon, it is paramount to allow the defendant an opportunity to cross-examine the victim, the accuser, who is the source of such reports, and to call into question the legitimacy of such statistics and reports.

Furthermore, the methodology used in forensic studies and other studies, especially if conducted in a region where lab operation is not supervised or not updated with scientific advances of the modern day, may be faulty. For instance, perhaps the specimens were not kept at the right temperature or accurate steps were not followed. Analyzing forensic results requires judges to undergo a highly technical inquiry on the process and substance of the analysis which they are neither trained nor particularly well-situated to do. Impartiality in judicial investigations, both in scientific and legal methodology, is of utmost importance and must not be compromised.21 Although the credibility of rape victims themselves must also be evaluated, judges as fact-finders may be better suited to pass judgment on the words of first-hand victims as opposed to scientific results passed through a chain of individuals or agencies and external influences. No one can describe better the act of a sexual penetration than the persons involved. The victim himself or herself will be able to describe details and specifics by painting a colorful picture whereas mere test results may be inadequate to explain when, where, how and why the rape occurred.

B. Objective Factors Fail to Establish a Coercive Environment

Certain circumstantial evidence, such as brandishing of weapons and presence of groups of perpetrators, may suffice in some situations to establish the second element, the coercive environment. These types of factors would be sufficient if the coercive environment element could always be objectively determined. However, threat of force and coercive environment can be subjective whereby the state of mind of the victims may be at issue. The only way to establish this element in certain situations is to explore the victims’ state of mind using direct evidence.

One scenario where the victims’ state of mind is at issue is where the invasion of the village was not perpetrated by an armed group of men. Factors such as the number of individuals supporting the sexual encounter, presence or usage of weaponry, and whether the incident immediately followed combat may be unclear so that they do not objectively point towards a coercive environment. Perhaps a coercive environment may require a certain number of men for instance. It could equally be the case that a coercive environment requires a certain number of weapons. In the absence of a uniform attack or military presence and unarmed rapes by a few men, the victim may be the only legitimate source of information to establish that the perpetrator raped her “by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power.” No other witness or testimony may be available regarding this particular incident to establish this second element.

Cultural considerations should also shape the assessment of the coercive environment. A “reasonable person” standard by Western perceptions is different from such a standard in an African conflict region. Thus, the coercive environment element is more subjective and puts the victims’ state of mind at issue. For instance, in Western nations where armed men are not regularly seen in public places, the presence of weapons, rifles, or even clubs may be deemed to establish a coercive environment. However, in some villages and towns in the DRC, civilians perceiving AK-47’s and men carrying other weapons, such as a club, may be a regular, everyday occurrence, whereby seeing such armed presence is not as coercive or frightening to victims as it would be under a Western assessment. Under the second element, “fear of violence” can best be gauged under a subjective determination of the victims’ state of mind through direct cross-examination of the victim. Direct evidence may thus be required to effectively establish the coercive environment element.

C. Absence of Birth Records Shape Minors’ Inability to Give Consent

Similarly, in the event that a coercive environment cannot be established, the inability to give consent under the second element can truly be attested to by direct victim testimony. Where the prosecution claims that the victim is a minor and was unable to give consent, but neither family survivors nor birth records exist to prove the victim’s age, direct victim testimony will be required. The victim’s parents or other family members may have been killed and, as a result, it is impossible to prove the victim’s age. In this scenario, the victim’s consent is at issue. In the absence of other witnesses, the victim herself will be the main source of evidence regarding the consent element.

Especially in the case of the proximity of neighboring villages, it is possible that the perpetrator and victim had previous sexual relations or were acquainted with one another prior to the attack, signifying consent. Although the probability of a woman from the victim’s ethnic tribe having a sexual or other relationship with the perpetrator who comes from the neighboring ethnic tribe might be low, there are instances where this has previously occurred. Despite ethnic hatred, violence, and propaganda in almost all conflict regions, such tension has not deterred at least some members from almost every ethnic group from marrying or having sexual relationships with members of the rival ethnic group. Thus, in order to safeguard a defendant’s rights to ensure absence of consent, the victim may need to testify to the absence of such previous relations with the perpetrator. More generally, the absence of consent will require the presence of the victim to discuss the chain of events and her manner of expressing lack of consent.

D. Lack of Pattern Evidence, Plan Documents, or Other Data and Statistics

The third element is that the conduct was committed as part of a widespread or systematic attack directed against a civilian population. Victims may sometimes need to directly testify because their perception can be relevant to this element. Some argue that establishing a pattern of crime is fundamental to investigating war crimes or crimes against humanity. For example, analyzing common features related to victims, perpetrators, and the modus operandi could establish certain elements of the rape crime.22 However, in remote regions of Africa, there is an extreme problem of evidence-gathering and retention.23 For example, the 2008 investigation into the post-electoral violence in Kenya was hindered by an ‘apparent lack of interest of the police in sexual violence and many allegations of rape that were overlooked by the national police.’24 Similarly, slow and inadequate advancement of technology exists in gathering and analyzing rape evidence. For example, rape is excluded from the menu of crimes to be analyzed by software for crime analysis used by police forces around the world.25 One author admits that the use of “such pattern evidence and analysis…for sexual violence charges has been, remarkably, more limited” than its use in other types of war crimes and crimes against humanity.26 Another problem with using circumstantial evidence deals with the lack of awareness and sensitivity of investigation teams, usually led by senior male officers and also embarrassment when dealing with intimate aspects of bodies and minds.27 Thus, to circumvent investigators’ problems in gathering such pattern evidence and the court’s difficulty in drawing conclusions based on such lacking evidence, individual victims must be interviewed on the occurrences and, often times, their oral testimony will be needed to establish such pattern evidence regarding the systematic nature of the attack.

In the case of Jean-Pierre Bemba, a Congolese defendant who currently faces trial at the ICC, data on rape was plotted on animated maps using the crime mapping technique to analyze the correlation with military operations. Similarly, in the case of Omar al-Bashir of Sudan, crime and tribal population data were plotted to analyze correlations indicative of intent.28 However, this “data” presumably came from victims and witnesses themselves, assuming cameras, satellites, and, in many cases, electricity were not in place to effect reliable communication at the time the rapes took place. Thus, this data may be questionable and the defendants must be given an opportunity to challenge the data and its sources, the victims themselves. For instance, it is implausible to have only one sex, the men, who may represent only half of the village population’s perspective, to testify about sexual occurrences that they themselves did not even experience and to sustain a conviction on that basis. Assuming satellite imagery were available, direct victim testimony is still required. For example, in June 2004, Sudan’s government was on notice that the United States was observing and recording its coordinated attacks on villages in Darfur with satellite and aerial imagery. Although these attacks were, at a minimum, signs of ethnic cleansing (if not genocide), US officials cautioned that the “images are not hard evidence until they are corroborated by testimony of witnesses on the ground.”29 A survey of 1,136 refugees, who had witnessed or experienced attacks but were living in Chad, therefore followed at the direction of the US State Department.30 It is important to equip the defendant with the ability to attack such reports and cross-examine such victims after their direct testimony.

In situations where numerical or other data as well as documents directing the attack are lacking, victim testimony is required to illustrate the widespread or systematic nature of the attack. For example, perhaps other witnesses were not present at the crime site, other than the victims themselves, when a group of women were suddenly targeted and raped. Given such a situation where circumstances do not indicate the rapes being committed pursuant to a widespread or systematic attack, the victims are needed to describe the attack that was inflicted upon them. For instance, one witness testifying at the ICTY described how she was not selected to be raped one night, which could have been indicative of the selective and isolated nature of the rape in favor of the defendant.31 This type of testimony could speak to the issue of whether the rape was systematic or widespread. Eyewitness testimony from victims could reveal a pattern from which a “systematic” attack could be inferred. For example, in a town in the DRC where an armed group, the mai-mai Sheka group, raped 300 women. Perhaps some would argue that the number of rape victims, if authenticated, could provide a solid basis for constituting “systematic” or “widespread” attack. However, relying on solely the number of victims may not be enough to satisfy this element. Other factors such as the nature of the warfare, the direction from which the perpetrators appeared, the words exchanged, the noises heard, the fear instilled in the victim, the weapons used, the number of attackers, the orders given, and many such other factors also need to be relied upon. Taken as a whole, such a comprehensive approach of victim testimony should be taken with respect to establishing the widespread or systematic element.

Absence of documents prepared by military commanders or rebel group leaders may also create a need for direct victim testimony. There is one important distinction between the ICTY and the ICC with respect to the widespread or systematic element. In prosecuting Serbian officials and commanders at the ICTY, the prosecutors were able to acquire an ample volume of documents that described the plan to attack various villages occupied by Bosnian Muslims. These hard documents were compiled and were used to show the “systematic” or “widespread” nature of various attacks. Conversely, in the cases in Africa that the ICC has faced to date, these types of attack plans are much less likely to be written down. Prosecutor Luis Moreno-Ocampo and UN High Commissioner of Human Rights Navanethem Pillay have admitted that it is difficult to systematically record and analyze sexual violence, especially in conflict zones and repressive regimes.32 Even at the ICTY, prosecutors realized that they could not rely heavily on “paper trails” to prove war crimes. In fact, in most cases they needed substantial numbers of eyewitnesses to prove crimes had occurred. Witnesses became the lifeblood of ICTY trials.33 As a result, it may be more difficult for prosecutors at the ICC to show the nature of the attack in establishing the third element without direct victim testimony. Recordkeeping by perpetrators and defendants in African conflicts as opposed to those in the former Yugoslavia is significantly more restrained. The lower the volume of paper trials left behind, the more the court must rely on victim testimony for evidence at trial. By putting together subjective, individual victim testimonies and looking at them as a whole, the “systematic” nature of the attack may be more readily established.

E. Absence of Documents or Communications that Objectively Signify Knowledge or Intent

With respect to the fourth and last element, the perpetrator who committed the rape must know or intend that the act be part of a widespread or systematic attack. Absent documents or communications among perpetrators that objectively indicate such knowledge or intent, direct victim testimony is necessary. Similar to the discussion of the previous element, there are subjective factors concerning the victim’s state of mind that would effectively satisfy this element. The victim must testify when there is evidence that perpetrators were told by their commanders not to rape or where some members of the forces raped while other members of the same force refrained from raping. In these scenarios, whether perpetrators had knowledge or intent of the widespread or systematic attack to rape becomes questionable. Thus, the victim must testify before the perpetrators’ knowledge or intent can be established.

Where it cannot be otherwise proven that the perpetrator knew of the policy of attack, the victim must testify about communications of and among perpetrators during or before the rapes took place in order for the prosecution to be able to establish knowledge or intent. For example, a victim will need to testify that the perpetrator made comments that they were rogue while performing the act or exchanged words with other attackers in order for piecemeal evidence to be gathered on the knowledge or intent issue. One proponent of pattern evidence indicates that perpetrator data regarding profile, behavior and rules of the perpetrator are relevant to analyze patterns in that they may refer to the utterances by perpetrators when committing the crime or to the rules adopted formally or informally by the attacking force.34

The best testimony on such utterances and communications of the perpetrators is the victim herself or himself. For instance, in the study on crimes in Darfur carried out by the US Department of State, refugee interviews were highly detailed in recording the shouting of racial epithets, which the study used as a measure of racially targeted intent to show genocide, during the attacks. Epithets are important because they provide evidence of explicit targeting that focused the attacks in a way that went beyond the multiple ethnic tribal identities indigenous to Darfur.35 The most effective evidence regarding such shouts, chants and phrases in order to establish knowledge and intent comes from the victims themselves. Surveys have noted the following statements made by Arab attackers to black African women who were raped by Sudanese government or Janjaweed forces, “Masalit—you are dirty; you deserve to be raped. You are black—you deserve to be tortured like this.” The Janjaweed attackers said to women they raped after cutting their arms to brand them, “You are now Arab wives.” Some women were raped by Arabs who declared to them, “You will have Arab babies.”36 These words and phrases shouted by the perpetrators of rape provide insight regarding the attackers’ motivation and intentions during the raids on Darfuri villagers.37 Such evidence is required by the prosecution in order to establish knowledge or intent when it cannot otherwise be proven with documents or other paper trails left by perpetrators and commanders. Absence of such communications between perpetrators or between perpetrators and victims would also fall in favor of the defendant by providing more difficulty to the prosecution to prove intent. Gauging knowledge and intent requires qualitative judgment. Such qualitative judgment is usually inferred using the testimony of insiders or other witnesses who interacted directly with the perpetrator.38

Oftentimes, perpetrators even verbally tell their victims that they were ordered to rape them. The perpetrator makes clear to the victim that the conduct of rape was not his own decision, but a task he was ordered to carry out by a higher-level commander. Again, in such situations, the court needs to question the victim about whether her attacker gave her such a warning or disclaimer before raping her. When intent or knowledge is not otherwise provable by the prosecution, absence of such communication as provided by victim testimony may fall in favor of the defense in that it may be less likely that there was knowledge or intent on the part of the perpetrator.

IV. Affirmative Defense

A. Consent

Under the second element of the rape crime, the definition makes clear that this forceful act was committed against a person who was “incapable of giving genuine consent.”39 However, in the event that a defendant can show that consent was given, this would constitute a complete defense to his rape charge. In order to validly determine the issue of consent, victim testimony may be necessary. The second element contemplates that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity.40 This means the prosecution could potentially claim that the victim was a minor, as previously discussed, or inflicted with a physical or mental incapacity and thereby unable to consent. In order to fairly examine such a victim, the defense would need the victim to be present for valid cross-examination and questioning on this issue. Only in such a way could the victim’s physical and mental state be fairly examined on the issue of consent. Thus, a valid opportunity for the defendant to claim such an affirmative defense requires direct victim testimony in some situations.

Rule 70 of the ICC Rules of Procedure and Evidence is dedicated to addressing evidentiary concerns underlying the historically controversial issue of “consent.” The procedural rule that resulted is divided into four key principles for adjudicating sexual violence. Specifically,

1. Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine consent;
2. Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent;
3. Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence; [and]
4. Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness.

While this rule discourages a consent defense, it also allows for one in limited situations. This triggers an equally controversial issue: when and how consent can be raised.41

One scenario where consent is disputed deals with a victim who has misrepresented her ethic background to the perpetrator. There have been cases where female victims have “hidden” their true ethnicity when representing themselves to perpetrators. For example, in the one of the DRC cases, Prosecutor v. Katanga & Ngudjolo Chui, women reportedly did not reveal their ethnic background to the perpetrators and were “raped” and later became wives of the perpetrators.42 In such a scenario, there can at least be made a case for the defendant that consent was at issue. If the perpetrators did not know that the woman was contesting to being with the man, either sexually or by marriage, then the “victim’s” consent is at least questionable. The defendant should thus be given a chance to elicit direct testimony from the woman on the chain of events and to cross-examine her report of the occurrences which led to her marriage. Moreover, there have been cases, as in the case of civilian women from Bogoro, DRC, where women lived with and bore children by their “captors.”43 In these cases, direct victim testimony should at least be required in order to confirm with greater reliability whether consent was at issue or not. Even a small possibility that would prevent proof beyond a reasonable doubt on the issue of consensual marriage and sex should afford an opportunity to the defendant to argue otherwise.

V. Conclusion

In order to be able to use circumstantial evidence to sustain a conviction, such indirect evidence is, like other forms of evidence, subject to concerns of credibility and reliability. To establish the elements of rape as a crime against humanity, direct victim testimony will sometimes be needed. “Live witness testimony is the lifeblood of the tribunals and essential to preserving the integrity and legacy of the institutions.”44 Patricia M. Wald emphasized that at least at the ICTY, the court’s willingness to admit substitutes for live testimony may have come at the expense of truth.45

There are certain specific contexts whereby direct victim testimony is required. First, eliminating direct victim testimony assumes there are medical records or other witnesses to testify instead to prove the invasion of the body element. This in turn assumes that there is adequate access to evidence gathering from the crime scene to even formulate such results. Caution must be used before making such assumptions and before giving heavy weight to such other indirect testimony since it is not always available. Second, to prove the coercive environment element, objective factors either may not have been present or may not be enough for the prosecution to prove its case. The coercive environment element is more subjective and may require psychologists’ testimony, which may not be available. Third, and also for the purposes of the second element, the prosecution may need to prove the victims’ inability to give consent. In the case of a victim who is a minor and whose birth records and age cannot be easily determined, the victim will need to directly testify in order for the court to determine her capability to give consent. Fourth, absence of pattern evidence, documents directing attack, and other statistical data may not have been properly compiled or may be absent all together, hindering the prosecution from proving the widespread or systematic attack element. Finally, the absence of such a paper trail and other communications among perpetrators can restrain the establishment of knowledge or intent element. While there are certainly more instances where direct victim testimony is required, these are a few examples that should caution decision-makers before eliminating the need for direct victim testimony to sustain a mass rape conviction against a defendant at the ICC. Careful consideration must be given to the effects of eliminating victim testimony on the truth of the fact-finding process in sustaining a rape conviction as well as the detrimental effects on the defendant’s due process rights.

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

1. 1.

   Patricia M. Wald, Dealing with Witnesses in War Crimes Tribunals: Lessons from the Yugoslav Tribunal, 5 Yale Hum. Rts. & Dev. L.J. 217, 230 (2002). ↩

2. 2.

   Xabier Agirre Aranburu, Sexual Violence Beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases, 23 Leiden J. Int’l L. 609, 615 (2010). ↩

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, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute] art. 69(2). ↩

4. 4.

   Amanda Beltz, Prosecuting Rape in International Criminal Tribunals: The Need to Balance Victim’s Rights with the Due Process Rights of the Accused, 23 St. John’s J. Legal Comment. 167, 186 (2008). ↩

5. 5.

   ICTY, Rules of Procedure and Evidence, Rule 79, Mar. 14, 1994, available online; Beltz, supra note 4, at 182. ↩

6. 6.

   Rome Statute, supra note 3, art. 67(1)(e). ↩

7. 7.

   Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Defence’s Request to Obtain Simultaneous French Transcripts, ¶18 (Dec. 13, 2007). ↩

8. 8.

   Kweku Vanderpuye, Traditions in Conflict: The Internationalization of Confrontation, 43 Cornell Int’l L.J. 513, 514, 524 (2010). ↩

9. 9.

   Id. ↩

10. 10.

    Beltz, supra note 4, at 200. ↩

11. 11.

    Id. at 564. ↩

12. 12.

    Wald, supra note 1, at 228-29. ↩

13. 13.

    See Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06-1399, Decision on the Admissibility of Four Documents, ¶24, (June 13, 2008). ↩

14. 14.

    Xabier, supra note 2, at 612. ↩

15. 15.

    Vanderpuye, supra note 8, at 573. ↩

16. 16.

    John Hagan, Richard Brooks, and Todd Haugh, Reasonable Grounds Evidence Involving Sexual Violence in Darfur, 35 Law & Soc. Inquiry 881, 884 (2010). ↩

17. 17.

    K. Alexa Koenig, Ryan S. Lincoln, and Lauren E. Groth, Contextualizing Sexual Violence Committed During the War on Terror: A Historical Overview of International Accountability, 45 U.S.F.L. Rev. 911, 937 (2011). ↩

18. 18.

    International Criminal Court, Elements of Crimes, Adopted and Entry into Force 9 September 2002, updated at Kampala, 31 May–11 June 2010, ICC-ASP/1/3 (part II-B). ↩

19. 19.

    Koenig, supra note 17, at 937. ↩

20. 20.

    Xabier, supra note 2, at 618. ↩

21. 21.

    Id. at 612. ↩

22. 22.

    Id. at 609. ↩

23. 23.

    The ABA Rule of Law Initiative in the Democratic Republic of the Congo indicated immense concern, as of March 2012, regarding the difficulties in retaining evidence in conflict regions. One large problem contributing to this difficulty is the unawareness of the local population of their rights and capabilities in retaining and transferring data of evidence of crimes of sexual violence to appropriate agencies and authorities. ↩

24. 24.

    Xabier, supra note 2, at 612. ↩

25. 25.

    Id. at 612. ↩

26. 26.

    Id. at 610. ↩

27. 27.

    Id. at 612. ↩

28. 28.

    Id. at 626. ↩

29. 29.

    Hagan, supra note 16, at 892. ↩

30. 30.

    Id. ↩

31. 31.

    Beltz, supra note 4, at 201. ↩

32. 32.

    Hagan, supra note 16, at 889. ↩

33. 33.

    Wald, supra note 1, at 219. ↩

34. 34.

    Xabier, supra note 2, at 620. ↩

35. 35.

    Hagan, supra note 16, at 897. ↩

36. 36.

    Id. at 898. ↩

37. 37.

    Id. at 899. ↩

38. 38.

    Xabier, supra note 2, at 625. ↩

39. 39.

    Elements of Crimes, supra note 18. ↩

40. 40.

    Id. ↩

41. 41.

    Koenig, supra note 17, at 940. ↩

42. 42.

    Prosecutor v. Katanga & Ngudjolo Chui, Case No. ICC-01/04-01/07, Prosecution’s Submission of Public Version of Document Containing the Charges, ¶89 (Apr. 24, 2008) (illustrating that women who were captured and spared because they shielded their ethnic background, were raped, forcibly taken to military camps and given as “wives” to their captors). ↩

43. 43.

    Prosecutor v. Katanga & Ngudjolo Chui, Case No. ICC-01/04-01/07, Decision on the Confirmation of Charges, ¶¶353-354 (Sept. 30, 2008) (examining the evidence presented by the civilian women from Bogoro who were captured, raped, and bore children by their captors). ↩

44. 44.

    Beltz, supra note 4, at 198. ↩

45. 45.

    Wald, supra note 1, at 230. ↩

II. Discussion

Despite the lack of a clear definition for a coercive environment, the choice of language by the State Parties to the Rome Statute provides explicative clues. The linguistic decisions within the Rome Statute demonstrate an adoption of an evolved view of consent in rape law that sheds light on how the ICC should construe “coercive environment.”2 This contemporary view finds that a coercive environment removes the ability to give voluntary and genuine consent. Coercion and consent are closely intertwined concepts, though, which require a bit of background knowledge to understand the assumptions utilized by the Rome Statute, which are provided next.

A. The Evolution of Contemporary Rape Law

For a variety of reasons, rape law used to require some proof of resistance or physical force (or threat thereof) to demonstrate a lack of consent. This made less and less sense to many primarily because in typical sexual relationships, men inherently possess an implied threat based upon their dominant physical strength.3 After all, wouldn’t many women give in rather than face potential physical brutality? That contemporary view was challenged by those who felt that no woman would share sexual intimacy without putting up a vigorous fight.4 While the latter view has since been abandoned in the United States,5 and most other countries, the question of what constituted genuine consent remained.

At first, a showing of a failure to give consent necessitated proof of acts constituting non-consent. Naturally, that seemed like putting the victim on trial, so eventually the law evolved to its current state: any quantum of force applied without affirmative consent equates to no consent given.6 That change is quite important because it meant for the first time that victims effectively did not have to prove their own lack of consent. It also meant that proof of the crime turned on the circumstances of the sexual encounter much more than an “individual[’s] psychic space.”7 This change in the law allowed for the introduction of the doctrine of coercive circumstances.

Coercion is widely understood as the actions or circumstances that remove the ability of a reasonable person to choose. In rape law, this means that a reasonable person feels obliged to submit to the sexual desires of another. The controversial nature of this doctrine arises not from that principle, but from its application. For instance, what kinds of circumstances create an inherent presumption that no genuine consent can be proffered? For the purposes of this paper, I will address this question with an eye towards conflict or post-conflict zones.

B. From Coercion to Coercive Environments

To develop a coercive environment theory in an area marred by conflict, it is obviously necessary to define coercion within those surroundings. The tricky part of this exercise revolves around the exclusion of those types of pressure lacking a certain compelling quality. For example, one party may use the promise of property, status, or favor to extract sex in something akin to a transaction—or, put more bluntly, sexual extortion. In the United States, the Model Penal Code has addressed this concern by noting in its comments that certain kinds of so-called sexual transactions, which only provide “an unattractive choice to avoid some unwanted alternative,”8 do not possess a “compulsion overwhelming the will of [a] victim.”9 Somewhat more illuminating, the Model Penal Code, in an attempted synthesis of U.S. law, also offers the following section dedicated to coercion:

Criminal Coercion

(1) Offense Defined. A person is guilty of criminal coercion if, with purpose unlawfully to restrict another’s freedom of action to his detriment, he threatens to:

(a) commit any criminal offense; or

…

(c) expose any secret tending to subject any person to hatred, contempt, or ridicule, or to impair his credit or business repute; or

(d) take or withhold action as an official, or cause an official to take or withhold action.10

Therein, as noted by the comments previously referenced, a criminal actor must present her victim with a stark choice: acquiesce to my desires or face serious consequences—whether those are criminal, wreak tremendous reputational damage, or simply bring about governmental action or inaction that would not have occurred otherwise.

Similarly, the State of California has also adopted a provision that relies solely upon coercion for prosecution, which is particularized for the sexual violence context: “[Rape occurs] [w]here it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.”11 Duress is defined as “a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a rational person.... The total circumstances…[are] consider[ed ] in appraising the existence of duress.”12 In contrast, the State of New Jersey finds sexual assault when the “actor uses physical force or coercion, but the victim does not sustain severe personal injury.”13 Consequently, the current development of the coercion doctrine in the United States remains spilt between what Professor Catharine MacKinnon describes as coercion‘s definitional focus on “power,” verses non-consent‘s definitional focus on “love or passion gone wrong.”14

Germany has enacted legislation incorporating the coercive environment theory, in which it criminalizes, among other things, sexual acts with prisoners and persons in the custody of a public authority:

(1) Whoever coerces another person:

1. with force;
2. by a threat of imminent danger to life and limb; or
3. by exploiting a situation in which the victim is unprotected and at the mercy of the perpetrator’s influence.15

While this provision also targets other kinds of traditional coercion, it recognizes the notion that some environments breed inherent coercion.

For the purposes of this paper, understanding the assumptions underlying the theory of coercion remains crucial for comprehending the next step in coercion theory—a step Germany has found amenable, as delineated above. While showing coercion generally involves demonstrating that a perpetrator exerted a sufficient amount of pressure that would overwhelm a person of ordinary disposition, this strand of coercion theory asks whether a set of circumstances will, as a practical matter, almost always create that sort of pressure or coercion.

The State Parties, in their adoption of the Elements of Crimes,16 apparently believed that certain types of circumstances would create coercive environments by their inclusion of the following language that appears in all crimes strictly related to sexual violence:

[The crime was] committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or other person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.17

Importantly, no showing of non-consent is required if a proper showing of a coercive environment is made. The question, of course, is how. Further, the Rules of Procedure and Evidence prohibit an inference of consent to sexual violence by words or conduct of a victim where a coercive environment, among others, undermined voluntary and genuine consent, or from silence or lack of resistance.18 These provisions expressly permit reliance upon the coercive environment theory.

This is also a salient place to distinguish, as the Rome Statute does, between “fear of violence, duress, detention, psychological oppression, or abuse of power,” and a “coercive environment.”19 Noscitur a sociis, a canon of statutory interpretation, counsels that the meaning of a word is given more precise content by the neighboring words in which it is associated.20 Here, the key observation is that while “coercion” results from a prohibited act (e.g., psychological oppression) or threat thereof, a “coercive environment” is presumably different because (1) it is separate apart from the delineated possibilities of “coercion,” and (2) an “environment,” as opposed to an act, is described as “coercive.” This distinction leads to the conclusion that the term, “coercive environment,” refers to circumstances creating inherent compulsion—as contrasted to an act or acts generating coercion.

C. Coercive Environments and Mass Rape

The provisions of the Elements of Crimes, and Rules of Procedure and Evidence, which relate to coercion in the context of sexual violence, likely arose due to developments in international criminal law. These evolutions occurred primarily at the international criminal tribunals established in response to atrocities in the former Yugoslavia, Rwanda, and Sierra Leon.

The seminal case on this point originates from the International Criminal Tribunal for Rwanda (“ICTR”). There, in Prosecutor v. Akayesu, the ICTR delineated a new international standard for rape.21 Therein, the scope of the sexual invasion was conceptually broadened to allow for rape to consist of “a physical invasion of a sexual nature.”22 And for the purposes of this paper, the ICTR made another significant decision: it employed a proof standard that could turn solely on a coercive environment, without a showing of non-consent.23

The International Criminal Tribunal for the former Yugoslavia (“ICTY”) seemed to initially embrace that twin-proposition in Prosecutor v. Delalic,24 before it reverted back to a more mechanical definition.25 Significantly, this definition also disposed of a focus on objective circumstances relevant to the question of coercion, as had been delineated in the Akayesu decision.26 Soon thereafter, when the trial chamber in Prosecutor v. Kunarac attempted to follow this guidance,27 the ICTY Appellate Chamber chastised the Trial Chamber for focusing on whether the prosecutor demonstrated an absence of consent.28 The Appellate Chamber has acknowledged that “the circumstances giving rise to the instant appeal[,] and that prevail in most cases charged as either war crimes or crimes against humanity[,] will be universally coercive.”29 Consequently, courts should presume that in wartime-like circumstances, “true consent will not be possible.”30

In a decision by the trial chamber in Prosecutor v. Muhimana,31 the ICTR in 2005 reinforced the broad standard for rape it originally established in Akayesu.32 Not surprisingly, the Rome Statute appears to borrow heavily from Akayesu in what has emerged as the international criminal standard for rape.33 Consequently, the rationale animating that decision in particular helps illuminate an analytical framework for both interpreting the language in the Rome Statute that relates to sexual violence, as well as applying it to the factual circumstances that give rise to atrocities.

D. An Analytical Framework for Determining the Presence of a Coercive Environment

In Akayesu, the ICTR appears to consider a few key factors in its analysis of the coercive nature of the environment(s) in which atrocities related to sexual assaults occurred.34 These include:

1. the number of individuals effectively supporting the sexual encounter;
2. whether the incident immediately followed a situation involving combat; and
3. the brandishing and/or usage of weaponry.

While unlikely, I would also add the existence of a prior relationship between the perpetrator(s) and the victim(s), if any. This totality of the circumstances test provides a roadmap for considering whether a coercive environment exists under the Rome Statute. And like any factors test, some of these factors receive more weight than others. Discussion of each factor follows, including the importance ascribed to them by the tribunals.

Notably, no international criminal tribunal has ever clearly elucidated this kind of coercion analysis in a step-by-step fashion, instead relying upon conclusory or broad statements of law such as: “it is worth observing that the circumstances giving rise to the instant appeal and that prevail in most cases charged as either war crimes or crimes against humanity will be almost universally coercive;”35 or “coercive circumstances need not be evidenced by a show of physical force.”36

1. The number of individuals effectively supporting the sexual encounter.

Even during incidents of rape in private homes, the factual findings distilled by the tribunals indicate that the number of individuals present plays an important role in assessing whether a coercive environment existed. That conclusion stems from an important legal conclusion by the ICTY: “‘any form of captivity vitiates consent.’”37 Accordingly, as the tribunal analyzes the effect upon the environment inuring from the number of people present, another inquiry related to constructive captivity38 is also explored. A tribunal’s analysis of constructive captivity appears to turn on whether the victim(s) was held utilizing the presence of other individuals.

Within the circumstances of the various instances of rape in Muhimana, the ICTY takes into account both those individuals present for the encounter, as well as those within earshot. During one rape, the tribunal notes that while the Perpetrator may have been alone with both girls in a room in his home, another man who heard the cries for help shouted back, “shut up.”39 Laying aside the probable reality that the defendant utilized force, the women here clearly had a strength disadvantage, which was exacerbated by the fact that the women were also apparently outnumbered by others sympathetic to the defendant—in other words, they were effectively trapped. As one of the incidents amounting to mass rape, the tribunal convicted the defendant without any definitive showing in these facts of non-consent or force.40 It instead relied upon a definition of rape premised upon a demonstration of whether a coercive environment existed, which it found under these facts.41 And because the Muhimana tribunal highlighted the effect of the presence of individuals other than the Perpetrator before abstaining from any other consent or force analysis, the tribunal indicated the substantial weight it placed upon them.

The Akayesu decision lends credence to this interpretation, as it also recognized the potential for inherent coercion in circumstances where the victim(s) is outnumbered.42 In other words, it found that factor has particular relevance when other individuals support the obvious consequences of refusing a sexual advance from another, thereby increasing the compulsion present.

In each of the instances amounting to mass rape, the tribunals carefully note the number of individuals effectively supporting the sexual violence as if some type of evidentiary presumption attaches upon a showing that a victim(s) is outnumbered. Thus, eliminating an alleged victim’s ability to flee explains why the ICC would place great weight on this factor.

2. Whether the incident immediately followed a situation involving combat.

Intuitively, fresh fighting would seemingly affect a tribunal’s view of the factual circumstances tending to indicate the presence of coercion; and it does. After all, recent battlefield experience probably produces a greater tendency towards aggressive behavior, particularly towards those people in any captured territory. Akayesu expressly noted at least two categories of environments that would qualify as inherently coercive. One generally resulting from armed conflict, and another specifically derived from “the military presence” at a compound where refugee Tutsi women were staying (during the earlier period of the Rwandan genocide).43 Thus, the ICTY’s willingness to expressly condition coercive circumstances on the military presence alone suggests that fresh conflict is not a necessary condition.

In the ICTR’s most recent treatment of rape in the context of coercive circumstances, a reoccurring theme appears to recognize the importance of temporal proximity to conflict. In Muhimana, all of the incidents of rape for which the defendant was found criminally liable occurred within two weeks of the extermination campaign against the Tutsi.44 The effect of this campaign must be said to have affected the environment of the rapes. Notably, the situations where the tribunal found the defendant guilty of rape as a crime against humanity varied greatly. Many of these rapes occurred in private homes or a hospital basement,45 which did not dissuade the ICTY that coercive circumstances were present. Nearly all of these rapes did occur within two weeks of the campaign, though.46 Thus, Muhimana teaches that temporal and/ or relational proximity to a conflict positively affects the coercive nature of the circumstances, but the presence of this factor is not determinative in the analysis.

That conclusion jives with Akayesu, where the tribunal appeared to articulate an alternative path for demonstrating coercive circumstances which did not turn on fresh fighting. It also suggests that the ICC, in explicating the terms “coercive environment,” should view the proximity of combat as persuasive, but not a requisite, for showing coercive circumstances.

3. The brandishing and/or usage of weaponry.

While no international criminal tribunal has explored, in any great depth, the coercive effects upon an environment which solely result from the presence of weapons, the ICTY has provided some guidance. The Akayesu tribunal discussed, in broad terms, the necessary ingredients for coercive circumstances. In so doing, it provided key insights about when weaponry might transform an environment into one that is coercive.

Clearly when a perpetrator utilizes a weapon, even if only as a club, the analysis turns to a question of force, and not coercion. But what about when no force (or threat thereof) is utilized, such as upon a brandishing of arms? Interestingly, the Akayesu tribunal found that a “show of physical force” represented an obvious candidate for analysis as a coercive environment.47 In making that observation, the tribunal clearly intimated that other forms of coercion, i.e., lesser forms of coercion, would also qualify.

How the ICC judges will utilize that somewhat broad guidance, however, is not clear. The ICC would probably find that intentional shows of force with weaponry create coercive circumstances, while passively holstered or otherwise unutilized weapons would not raise the specter of coercion.

4. The existence of a prior relationship between the perpetrator(s) and the victim(s), if any.

In both a sad and interesting way, Muhimana provides examples of how of prior relationships precipitated sexual violence. Notably, at least according to the factual findings, none of these relationships was sexual in nature. In the words of one witness found credible by the tribunal, the Perpetrator was a “very close friend of the family.”48 If shown, this factor could assist the defense by dispelling the notion that a “coercive environment” existed. Conversely, it could also demonstrate a unique environment of coerciveness inuring from personally damaging knowledge possessed by the defendant.

The tribunals do not appear to place any particular emphasis upon it, although that may have more to do with the fact that no defense team tried to push forward with a theory premised on relational familiarity for that particular incident. It is included here given its potential relevance.

E. Operationalizing the Test for Coercive Circumstances

A factor test does not tend to offer anything close to precision, and this test is no different. It does allow capture, however, of those factual scenarios where mass rape occurs without an obvious use of force or threats thereof, and a specific act of coercion isn’t present, e.g., detention. In those situations, without a showing of coercive circumstances, the ICC Prosecutor may find herself unable to prove an element of the crime.

The test above helps tease out the international criminal law as it has developed regarding inherent coercion in certain circumstances. First, it recognizes the crucial nature of demonstrating the number of others present for the encounter who possess at least some sympathy or loyalty to the accused. While the lack of at least passive assistance from others does not conclusively indicate the lack of a coercive environment, a showing of multiple actors aiding in some capacity (if only through their presence) is important for showing the inherent nature of the compulsion present.

Second, fresh fighting also provides persuasive indicia of a coercive environment; though that, too, is neither dispositive nor a requisite for showing the presence of a coercive environment. Third, intentional brandishing of weaponry likewise suggests the presence of coercive circumstances. Fourth, the existence of a prior relationship between the accused and the victim(s) could assist either the prosecution or the defense in their theory of the case.

III. Conclusion

An analytical framework for determining the presence of coercive circumstances must capture the various factual iterations that accompany crimes of mass rape. Many of them involve recent combat. For instance, in places where a conflict still remains,49 the specific context of the rapes that occurred may create a coercive environment under the Rome Statute’s EOC. Coercive circumstances can also be shown when a victim is outnumbered in a way that suggests a kind of quasi-detention. By taking into account the circumstances that produce significant, inherent compulsion, this paper’s test provides an analytically rigorous tool for determining which situations make voluntary and genuine consent no longer possible.

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

1. 1.

   Susan Estrich, Teaching Rape Law, 102 Yale L.J. 509, 510 & 516 (1996). ↩

2. 2.

   Catharine A. MacKinnon, Defining Rape Internationally: A Comment on Akayesu, 44 Colum. J. Transnat’l L. 940, 956-58 (2006). ↩

3. 3.

   Vanessa E. Munro, From Consent to Coercion: Evaluating International and Domestic Frameworks for the Criminalization of Rape, in Rethinking Rape Law 17, 19 (Clare McGlynn & Vanessa E. Munro eds., 2010). ↩

4. 4.

   See Michelle Anderson, Reviving Resistance in Rape Law, 1998 U. Ill. L. Rev. 953, 985-87. ↩

5. 5.

   See Model Penal Code § 213.1. ↩

6. 6.

   See, e.g., In the Interest of M.T.S., 609 A.2d 1266 (1992). ↩

7. 7.

   MacKinnon, supra note 2, at 941. ↩

8. 8.

   Model Penal Code § 213.1, comment on 314. ↩

9. 9.

   Id. ↩

10. 10.

    Model Penal Code § 212.5. ↩

11. 11.

    Cal. Penal Code § 261(a)(2) (emphasis added). ↩

12. 12.

    § 261(b). ↩

13. 13.

    N.J. Stat. Ann. § 2C:14-2c(1). ↩

14. 14.

    MacKinnon, supra note 2, at 941. ↩

15. 15.

    German Criminal Code, Chapter 13, Section 177, available online (english translation). ↩

16. 16.

    See International Criminal Court, Elements of Crimes, Adopted and Entry into Force 9 September 2002, updated at Kampala, 31 May–11 June 2010, ICC-ASP/1/3 (part II-B) ↩

17. 17.

    Id. at Art. 7(1)(g)-1 2., Crime against humanity of rape (emphasis added). ↩

18. 18.

    International Criminal Court, Rules of Procedure and Evidence, Adopted and Entry into Force 9 September 2002, ICC-ASP/1/3, Rule 70(a). ↩

19. 19.

    See International Criminal Court, supra note 16, at Art. 7(1)(g)-1 2. ↩

20. 20.

    Norman J. Singer and J.D. Shambie Singer, Sutherland Statutes and Statutory Construction, § 47.16 (7th ed. 2007). ↩

21. 21.

    Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, ¶ 688 (Sept. 2, 1998), available online. ↩

22. 22.

    Id. ↩

23. 23.

    Id. ↩

24. 24.

    Prosecutor v. Delalic et al., Case No. IT-96-21-T, Judgment, ¶¶ 478-79 (Nov. 16, 1998), available online. ↩

25. 25.

    Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment, ¶ 185 (Dec. 10, 1998), available online (“The Trial Chamber finds that the following may be accepted as the objective elements of rape: (i) the sexual penetration, however slight:…(ii) by coercion or force or threat of force....”). ↩

26. 26.

    Id. ↩

27. 27.

    Prosecutor v. Kunarac et al., Case Nos. IT-96-23-T & IT-96-23/1-T, Judgment (Feb. 22, 2001), available online. ↩

28. 28.

    Prosecutor v. Kunarac, Case No. IT-96-23 & IT-96-23/1-A, Appeals Judgment, ¶ 129 (June 12, 2002). ↩

29. 29.

    Id. at ¶ 130 (emphasis added). ↩

30. 30.

    Id. ↩

31. 31.

    Prosecutor v. Muhimana, Case No. ICTR 95-1B-T, Judgment (Apr. 25, 2005). ↩

32. 32.

    Id. at ¶ 546. ↩

33. 33.

    MacKinnon, supra note 2, at 957-58. ↩

34. 34.

    See Akayesu, supra note 19, at ¶¶ 688, 692, & 693. ↩

35. 35.

    Kunarac, supra note 26, at ¶ 130. ↩

36. 36.

    Akayesu, supra note 19, at ¶ 688. ↩

37. 37.

    Id. at ¶ 545 (citing Furundzija, supra note 25, at ¶ 271). ↩

38. 38.

    Constructive captivity, a term I have invented to describe the ability to constrain an individual’s freedom, is distinguished from “detention” by its informal nature. ↩

39. 39.

    Id. at ¶ 18, 22, & 23. ↩

40. 40.

    Id. at ¶ 552. ↩

41. 41.

    Id. at ¶ 551-52. ↩

42. 42.

    See Akayesu, supra note 19, at ¶ 688 (including the presence of soldiers at a governmental compound where a group of refugee Tutsi women were staying). ↩

43. 43.

    Id. ↩

44. 44.

    Muhimana, supra note 31, at ¶¶ 552-53. ↩

45. 45.

    Id. ↩

46. 46.

    Id. ↩

47. 47.

    Id. ↩

48. 48.

    Id, at ¶ 18. ↩

49. 49.

    Recent reports push back against the notion that Eastern DRC has emerged from a conflict that has raged over a decade. See Stephen Castle, In Congo, Self-Defense Can Offer Its Own Risk, NY Times, Mar. 28, 2012, at A4. ↩