The Mass Rape Question — Comments
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- Cardon: The ICC only prosecutes high level perpetrators. Usually, these are "leadership" crimes; the defendant is accused of instigating mass rape, not of committing it himself. The actual rapist won't be sitting in the dock when the victim testifies about what happened to her. The crime of rape and the crime of mass rape are very different. In an ICC prosecution of mass rape, the victim's direct attacker won't be on trial. And the type of evidence that needs to be elicited for mass rape is far... (more)
- liss.ucla: Rape is a form of coercion, no question, and a key to recovery is re-empowering survivors. On the one hand, giving survivors the opportunity to testify helps them to process their stories and may act to validate their experience, as judge and attorneys will listen and, as a matter of professionalism, refrain from victim-blaming. Given that most if not all cultures stigmatize rape to some extent or another, as it may be hard to find that sort of validation within their own societies. However,... (more)
- Alma Pekmezovic: Perpetrators of mass rape must be brought to justice. Sexual violence, human trafficking and mass rape are regularly used as weapons in war. In some cases, it will be crucial for the prosecution to use evidence other than direct testimony of the victims. However, the use of such evidence should not deny victims the opportunity to be heard in court. Instead, such evidence should be considered in combination with other relevant factors and evidence. Professor MacKinnon raises some important... (more)
- nmoley: In using victims as witnesses to prove rape, the ICC obviously faces ethical issues of making victims relive their trauma or of putting victims in danger of stigma. However, even apart from these issues, witness testimony may be a suboptimal way of proving rape. Numerous studies in the US have indicated the fallibility of eyewitness testimony. Likewise, victims of mass rape may have distorted memories of the incident, which likely will have occurred years before the ICC tries the case. In... (more)
- Sean.Lowe: If the ICC is to allow a pro se party to defend herself, then this party must not be prevented from conducting cross-examination. For as we all know, cross-examination is a critical part of any trial -- much as the United States Supreme Court Crawford decision recognized. In cases involving any type of brutality, particularly rape, that poses a significant challenge to gaining participation of the victim and other witnesses. Cross-examination is tough enough without the alleged perpetrator... (more)
- Lee: I think Mr. Terzian correctly focuses on one of the two issues that to me seem to be the areas which should be discussed. It seems to me that the expert commentators largely agree that while the ICC can sustain a conviction for the underlying crime of mass rape without testimony from victims, ICC prosecutors should try to present survivor testimony whenever possible. This issue is more related ICC procedural issues, particularly "witness-proofing," as highlighted by Professor MacKinnon, and... (more)
- danterzian: Professor MacKinnon, you write that the Trial Chamber's decision on witness proofing "cuts survivors off from the support of lawyers." Without this support and in a foreign environment, you continue, these traumatized victims will be poor witnesses. My question is: Is this, or does this have to be, the case? The ICC's Victims and Witnesses Unit must already provide psychological support to these victims, and it seems that they may also be able to help them navigate this foreign legal landscape... (more)
- davidlee211: Professor MacKinnon raises an interesting point when she argues that by being sensitive to cultural stigmas attached to victims of rape and offering an alternative to direct victim testimony, one actually perpetuates those very stigmas. While this should be a critical consideration, it seems that Professor MacKinnon is positing a view that operates under an assumption of how gender bias and rape stigma should be understood, and not how they are actually understood today. Certain procedural... (more)
- davidmarselos: If there is evidence that can be used to identify the victim or victims of mass rape then those victims have a right to justice in the ICC if their domestic authorities have ignored or betrayed them regardless of whether they are to scared to do a testimony or not. In NSW Australia if civilians commit mass rape then the police usually act however if the police mass rape civilians the police who gang rape their victims have their crimes covered up by their work mates who investigate them. This... (more)
- munis: Although direct victim testimony would be of immense importance to the prosecution in proving the case of mass rape in the ICC it is often very difficult if not impossible to convince victims of rape to testify in open court owing to the severe stigma attached to rape in most societies. However the ICC can still sustain a conviction on mass rape by exploring different forms of evidence other than direct testimony from the victims. INTRODUCTION; Direct testimony from victims of rape has always... (more)
Comment on the Mass Rape Question: “Can the International Criminal Court sustain a conviction for the underlying crime of mass rape without testimony from victims?”
Differences in the prosecution of rape in the ICC and domestic contexts
Prosecution of rape cases in the ICC differs in several important ways from prosecution of rape in a national context. The differences between such jurisdictions include:
These differences illustrate that to sustain a conviction for mass rape in the ICC, measures to protect witness confidentiality and alternatives to cross examination are necessary, where they may not be in a domestic context.
In rape cases, the rights of the accused to cross examine witnesses inevitably come into conflict with measures intended to protect witnesses’ safety or anonymity. This is true both in a domestic judicial system and in the International Criminal Court (ICC). Much literature has been devoted to defining the proper evidentiary parameters of the ICC and its predecessors, and inevitably many people point to national jurisdictions as a guide for the ICC.1 After all, rules of evidence and procedure which have long served developed judicial systems will reasonably shed light on a course that the ICC might take. At the same time, scholars and practitioners must take into account that the ICC operates in a context which is necessarily different from any national system.
By national system, I mean the judicial system in a country to which scholars often compare the ICC, and which influenced the creation of the ICC. These systems will generally be established judiciaries in developed countries, for example the US, the UK, and European civil law countries.2 Because of the influence of the US in drafting the Rome Statute and the frequent arguments in favor of cross-examination (often from common law commentators), most comparisons in this comment will be made to US law. A common argument made by such proponents is that the ICC should limit its witness protection measures in order to ensure the due process rights of the defense, especially the right to cross examine victims. This comment offers a counter to those who would base such arguments on a comparison between the ICC and a domestic (especially common law) judicial system. Certain differences between the two systems are highly relevant in determining the appropriate level of witness protection measures and of the defendant’s right to examine victims who testify against him.
When determining the appropriate rules of procedure and evidence for rape crimes in the ICC, it is important to consider its unique situation. The ICC prosecutes the crime of “mass rape,”3 which is a different crime than rape cases generally prosecuted in a domestic system. Furthermore, the ICC operates in a different context than a national court system, as it is a standalone court with different mandates and resources. This comment highlights five differences between the two systems. These suggest that the importance of victim cross examination may be lessened in the ICC, and that there is a greater need than in a national jurisdiction to induce testimony through greater degrees of confidentiality and protection for witnesses. Part one examines the lessened centrality of victim testimony in a prosecution in the ICC as compared with a national jurisdiction. Part two highlights the greater difficulty in the ICC of locating victim witnesses as compared to the domestic context. Part three explains how the ICC has a lesser ability to compel witness testimony than a national system. Part four discusses the greater risks to victims who testify in the ICC as compared with a national jurisdiction. Finally, part five notes the differences in the cultural stigma of rape which prevents many victims from coming forward to testify for the prosecution.
I. Victim Testimony Is Less Central in the ICC than it is in the National Context
Under the Rome Statute, mass rape may be either a crime against humanity, or a war crime. As a crime against humanity, rape and other sexual violence by definition must be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”4 Similarly, rape as a war crime must be “committed as part of a plan or policy or as part of a large-scale commission of such crimes.”5 Under each of these definitions, mass rape occurs almost exclusively in war or other types of armed conflict. It also occurs on a certain scale—not as an isolated act of violence, but as a plan, practice, or other systematized action by an aggressor consisting of multiple people.
In most national jurisdictions, the crime of mass rape as defined in the Rome Statute is a rare occurrence.6 It does not occur in most stable countries, because it is born of war and conflict. Rather, rape that is prosecuted in national jurisdictions is generally “simple rape,” or rape by one individual against another individual.7 While there may be multiple perpetrators or multiple victims in a single rape case, it will rarely rise to the level of mass rape as understood by the ICC, given its definition as a war crime or crime against humanity. In a domestic jurisdiction such as the United States, the elements of “simple” rape between unmarried people are generally: 1) sexual intercourse; 2) force or threat of force; and 3) lack of consent.8
In simple rape cases, the testimony of a single witness, the alleged victim, is integral to the prosecution’s case in chief. It is often most crucial in proving lack of consent, or the related use of force. By contrast, the elements of sexual intercourse, identity, and sometimes of force (such as where a weapon is used) may be proven by evidence other than the victim’s testimony. Identity and the fact of intercourse have readily available means of proof, such as DNA evidence, rape kit evidence, or proof of prior acquaintance. In many cases, this will irrefutably link a defendant to a rape victim, and will not depend on the testimony of the victim. Consent, by contrast, can often be proven only through victim testimony. Thus the most hotly contested issue in a rape case is usually the fact of consent, for which the witness’s testimony is critical.9
The problem of proving consent in national jurisdictions is not only sensitive, but also difficult to prove, since evidence of consent is scarce. Consent is a subjective inquiry into the state of mind of both the victim and accused. It is also entangled with the element of force, in that the absence of force may heighten the need to prove lack of consent, or conversely that the presence of force may indicate a lack of consent.10 The issue of consent will almost always turn on individual testimony, both in substance and credibility. In such cases a trial invariably may become the victim’s word against that of the accused. It will turn on the truth of the victim’s assertions—whether there was force used, and more importantly whether there was valid consent to intercourse. Therefore, the testimony of the victim, and its truth or falsity, will often make or break the case in a national jurisdiction.
In simple rape cases, a rape victim’s knowledge of his or her offender is also highly relevant. Consent to sexual activity is generally more likely when with a prior acquaintance rather than with a complete stranger. At the same time, a high percentage of rapes in the US are committed by a known perpetrator. Official statistics state that 45% of male victims and 68% of female victims knew their offender.11 Furthermore, fabricated accusations are also a danger in rape cases, with estimates ranging from 2% to over 40% of all rape reports involving false allegations.12 Because it is more plausible that sexual relations are consensual when the parties know one another, or that false accusations will be made, the element of consent is very often at issue between parties with prior acquaintance. Given the large number of such cases, the issue of whether sexual intercourse was consensual is often the central issue in national rape prosecutions.
Furthermore, the majority of simple rape cases consist of a single perpetrator and a single victim.13 Even in the cases where there are multiple perpetrators or victims, the number of victims is still low compared to that in mass rape in war or armed conflict settings, where entire villages may be routinely raped. For this reason as well, the testimony of any single witness against a defendant is central to the case against him.
In such prosecutions, preventing the defendant from cross examining the alleged victims may seriously impede his defense. Each witness is critical to the trial, and without the ability to confront these witnesses, the defendant is left with few other options for presenting a valid defense. If one victim testifies falsely, there is a high risk that an innocent person will be convicted. The most probative and valuable defense to such accusations will be to expose the falsity of the alleged victim’s story. In such cases, limiting a defendant’s ability to confront the witnesses against him could cripple his ability to exculpate himself. Where a case hinges on the truth or falsity of the victim’s statements, the right of cross-examination is utterly crucial to determining the truth. Therefore, in a simple rape case, it is extremely important to provide full rights to the defendant to cross examine witnesses, given the integral nature of the victim witness’s testimony to the case.
In the context of the ICC, the same considerations do not apply with the same force. First and foremost, the crime of rape as defined in the Rome Statute is a different crime from simple rape. Mass rape is a systematic attack on a civilian population, rather than an isolated instance of violence between two people. Thus, a prosecution’s case in chief in the ICC will necessarily have very different elements to prove. The ICC must show at least some elements of a simple rape in order to demonstrate that rape was perpetrated. However, it must also show evidence of a systematic policy, practice, or attack plan by the perpetrator, as well as victimization of a “civilian population.”14 These additional elements will not turn on the evidence of a single victim witness, simply because they are unlikely to be the only ones with access to such information, if they have access at all.
Accordingly, the role of a victim witness in proving rape differs in the ICC context from the national context. Significantly, witnesses will need to testify as to consent far less often. Consent is not an element of the crime of mass rape. Rather, the focus in mass rape cases is generally on other elements such as the existence of policy or plan. While simple rape generally requires proof of only three elements, mass rape requires a greater and more complex showing. Furthermore, the defense to the crime of mass rape will rarely be that all the victims consented, which is unlikely for several reasons. Where a civilian population is under attack, an amount of force exists which would tend to preclude any consent on the part of the victim. Furthermore, in such situations the victim and the perpetrator are unlikely to know each other, since mass rape by definition indicates indiscriminate raping. Where members of an armed group have sexual intercourse with civilians who are strangers, any claim of consent is weak at best. Thus, in the mass rape context consent will at issue much less than it is in the simple rape context.
When the issue of consent is not at issue, the credibility of the witness’s testimony is far less central. Mass rape cases will likely turn on other factors, such as the existence of a policy or plan, the accused’s knowledge of that plan, or the number of civilians raped. Although a single victim witness may testify as to any of these issues, they may also be proved by types of evidence other than victim testimony.15 The victim is less likely than others to have probative information about an armed group’s policy to rape, or about the accused’s awareness of the rapes. Thus, the victim’s credibility as to consent, or as to any other factor, is far less critical to the case.
Furthermore, in the mass rape context the scale of the crime will inevitably be greater than in the national context. A rape prosecution in the United States requires only one victim and one accused. By contrast, a rape prosecution in the ICC must show “a widespread or systematic attack” or “a plan or policy or as part of a large-scale commission of such crimes.” The prosecution may thus make a showing of a greater number of individual rapes. It may do so by proving the policy by direct evidence (i.e. through a military commender’s testimony or a military memo), by more indirect circumstantial evidence, or through testimonies of multiple victims. Given the number of victims in such a large scale crime, the testimony of any one victim is unlikely to be as critical as it is in the national context. Generally, the falsity of that witness’s testimony is less harmful to the defendant, and the truth is less damning.
This is not to suggest that witness credibility is not an issue in the ICC context, or that confrontation or cross examination is not an important right of the accused. Cross examination of a witness serves an important function of discovering truth, and of providing the defendant with a valuable tool to attack the prosecution’s case in chief. However, what makes the need for cross examination absolutely critical in the context of a simple rape case in a national jurisdiction generally does not apply to the same degree in the ICC. A single victim’s testimony will rarely, if ever, be central to the case against an accused. Accordingly, the need for the defense to cross examine the victim without restraint is reduced. The ICC may thus use alternative evidence, such as written and corroborated testimony or other measures for witness confidentiality, which do not amount to full and direct cross examination. In most cases, these alternative measures could be sufficient to protect the defense’s rights in the ICC where in the simple rape context they are not.
II. It is More Difficult to Locate Victims in the ICC than in the National Context
One inescapable difference between a prosecution in the ICC and a prosecution in a national jurisdiction is the overall system in which the court is situated. A criminal court in a developed country exists as part of a complete infrastructure. It has a police or or investigative force, enforcement abilities, and comprehensive witness protection programs, among other things. A court in a country such as the US is an integrated part of the nation’s overall governmental system. Law enforcement agents work and investigate largely in their own country. They are equipped with comprehensive training, resources, and institutional support. An American court may summon a witness, hold him in contempt of court and subject to arrest if he fails to appear, and follow through on that arrest.
The ICC, by contrast, is a standalone court. It does not have a police force or comprehensive enforcement authorities. The ICC is unable to even arrest those it has charged without help from the States Parties.16 Unlike a national court, the ICC does not have the advantage of working with other branches of a government throughout the trial, from the investigative to the sentencing stage. It cannot summon witnesses through threat of penalty, so witnesses must voluntarily come forward.
The ICC thus has a limited investigative capacity to locate witnesses. It must conduct investigations and find witnesses in an international conflict zone, without any of the institutional support of a national jurisdiction. Furthermore, the Office of the Prosecutor’s (OTP) safety policy prevents ICC investigators from fact-finding in prohibitively dangerous situations.17 The situations on the ground in which the ICC conducts investigations, and especially where it has issued warrants, are very dangerous, either at war or very unstable.18 The areas in which identifying witnesses is most necessary is perhaps most dangerous for an ICC investigator, and will often not be possible.
In addition, potential witnesses may not know of the ICC’s existence.19 The analogous situation is unlikely in a nation such as the US, where most of the population has access to the media, is subject to jury duty, and knows that courts exist. Thus, while the ICC relies on witnesses to come forward, lack of knowledge may serve as a barrier to such voluntary participation. For all of these reasons, the ability of the ICC to locate victims as potential witnesses is weaker than it would be in a national jurisdiction. Given this shortcoming, it is all the more important to reduce high barriers to voluntary victim testimony at the ICC. These include evidentiary alternatives to cross examination, such as confidential or anonymous testimony, or even written and corroborated statements.
III. The Ability to Compel Testimony is Absent in the ICC
A related incentive for witnesses to testify comes from a more intangible response to the authority of the justice and law enforcement system. In America, the judicial system is as old as the nation, and has not ceased to command at least a degree of authority since that time. While Americans may have conflicting views of their national criminal justice system, at the very least most understand that it has the capacity to arrest and imprison. For instance, people are regularly arrested, brought to court, or imprisoned for sustained periods of time.20 Moreover, a majority of Americans have at least some confidence in the criminal justice system.21 Whatever Americans may think of the police, the court system, or the government, criminal justice is undoubtedly entrenched and commands some authority. Thus, incentives which compel victims to testify include fear of sanctions (contempt of court), desire to help achieve justice, or a personal desire to punish. The established nature of the American judiciary strengthens these considerations.
By contrast, the ICC is neither an entrenched authority, nor does it have enforcement capacities. The ICC is young and a standalone court, with many unaware of its existence. Moreover, there is reason to believe that in nations where it issues arrest warrants, those aware of the ICC have a negative view of it.22 For these reasons, it lacks some of the authority that a domestic court might have among its people. The ICC is not a part of a national system which tangibly asserts its authority among civilians. It can only issue, not execute, an arrest warrant, and it lacks the summoning power of domestic courts. Unlike in a national system, there is thus no reason for civilians to be afraid not to testify. At the same time, witnesses may be less compelled to testify out of a belief of the court’s ability to imprison their offender or capacity for justice. In 10 years, the ICC has yet to sentence an offender, and at present many may not have faith in its ability to punish perpetrators. This suggests that more idealistic motivations to testify, stemming form a belief in justice or desire to punish, might be weaker in the context of the ICC than in a developed nation. Since the ICC relies heavily on voluntary witness testimony, evidentiary alternatives to unhindered examination of a victim become more vital.
IV. There are Greater Risks to the Safety of Victims who Testify at the ICC than in a National System
Perhaps the most important disincentive for victim testimony is the fact that the ICC does not have a comprehensive witness protection program. This places burdens on both witnesses and the prosecution that do not exist in the national context. Possibly the greatest barrier to witnesses testimony, at least in criminal prosecutions, is rooted in fear of retaliation.
In a domestic context, witness intimidation is often a significant problem. Such problems especially occur where the accused has many outside supporters, who are readily available to pose a threat.23 In response to this, the US implemented the Federal Witness Protection Program, as well as several separate state programs. The government relocates qualifying witnesses and their families, and provides them with a new identity, housing and other assistance.24 It thus protects witnesses both during trial and afterwards in the long term.
In the context of the ICC, witness’s fears to come forward are equally, if not more, valid. Evidence indicates that witnesses, and specifically those involved in prosecutions for sexual violence, have been intimidated or even killed as a result of trials conducted by the ICTY and the ICTR.25 In recognition of this, the ICC has also instituted witness protection measures. The Rome Statute contains numerous provisions for the protection of victims and witnesses, including a Victims and Witness Unit (VWU).26 Rule 16 of the Rules of Procedure and Evidence provides more guidance for this Unit, including the creation of witness protection programs both during and after the trial.27 However, at the same time, the VWU has stressed that relocation is a measure of last resort, and that victims should be returned as close to their region of origin as possible. This stemmed in large part from concerns about cultural continuity and a desire not to engage in “abrupt uprooting” of victims.28
Nonetheless, regardless of the strength of the ICC’s victim and witness protection program, domestic situations on the ground exacerbate the danger to witnesses and confound the protection measures that may be taken. For instance, the ICTY faced insurmountable difficulties in implementing effective witness protection measures. Because of the disconnect between the international tribunal and the state in which it operated, meaningful long-term relocation was generally not possible.29 The state simply did not have the capacity to operate an effective witness protection program during its recovery from a devastating conflict. Similar observations have been made by UN forces in areas in which the ICC is conducting investigations.30
There are other strong reasons to believe that threats to witnesses exist in situations currently under investigation by the ICC. In an environment such as the eastern DRC, “the judiciary and the police are structurally weak, lack resources, and are often corrupt; de facto, the rule of law is often absent, and existing laws on the protection of victims and witnesses are not enforced.”31 In addition, “many of the perpetrators of sexual violence belong to armed groups, the armed forces, or the police. These groups often protect their members—even when accused of rape—and have threatened or attacked victims of sexual violence who have dared to initiate judicial proceedings.”32 Especially in areas in which the ICC issues arrest warrants, armed conflict is common, and retaliation by the accused’s supporters is thus possible if not likely. Of further concern is the fact that many have been issued arrest warrants by the ICC, but remain at large or even in power. Of those who are in custody, most still have some political allies or other resources on the ground. For these reasons, witness protection is a significant obstacle for ICC trials, in a way that it is not in the national context. In many cases, it’s hard to see why a witness would come forward to testify, aside from a strong desire for justice.
There is thus a moral imperative to consider witness safety in evidentiary matters. Absolute preservation of an accused’s right to examine or cross examine victims, at the expense of their safety, raises serious ethical questions in a court whose mandate is to prevent impunity and promote justice. Regardless of the actual adequacy of the protection measures, however, the perceived lack of an established witness protection program will present a formidable obstacle for the prosecution. In the ICTY, dealing with witnesses was difficult: there was “little reason to think that the national government will in the future provide sufficient funding and support for building that kind of witness support capability that is needed….to enable effective war crimes investigation and prosecution.”33 Thus, any perceived inability of the ICC to ensure the wellbeing of victims will deter those who might otherwise give testimony. Given the ICC’s lack of control over victims’ home states, potential witnesses may be faced with the choice of returning to a dangerous situation at home, or relocating to a different continent with which they have no ties, cultural or otherwise. Without these witnesses, the prosecution will have a difficult time in sustaining its burden of proof. This creates an obstacle for the prosecution which is greater at the level of the ICC than at the national level, and indicates a more pressing need for alternatives which encourage victim testimony.
V. Greater Risk of Social Stigma for Victims in the ICC as Compared to the National Context
Certain personal reasons which prevent witnesses from coming forward in a national jurisdiction are compounded in the international context. First, the inconvenience of going to trial, no small factor in a national context, is intensified in the ICC. No matter where a crime takes place, all ICC proceedings are held in the Hague. A victim must often make a long trip to a different country, even continent, where they know nobody. Moreover, the cultural shock may be substantial. A poor victim from the DRC, Kenya, or the Central African Republic may have never left the countryside before, never been on a plane, and may be unfamiliar with Western culture. These all present daunting considerations for a victim which are generally present to a lesser degree in a national context.
In addition, the social stigma of being a victim may be greater in ICC cases than in national cases. In a country such as the United States, rape victims are generally viewed with empathy and compassion. Although the sensitive nature of rape cases and need to encourage rape victim testimony led to the enactment of rape shield laws, there are no explicitly negative perceptions of rape victims in the US. When one has been raped in Western culture, there is generally no tarnish on one’s marriageability, social standing, or future opportunities. In general, rape victims are treated similarly to anyone else who has suffered from a violent crime—with pity, compassion, or support.
In many cultures outside of the Western world, however, a rape victim may suffer a severe social stigma. For example, in the DRC a raped married woman is viewed by many ethnic groups as an adulterer and is tainted, probably never to marry again. Younger girls become unmarriageable, and are often rejected by their families.34 Those who have been raped are seen less as victims of a crime and more as pariahs. Aside from psychological traumas, rape in such cultures radically changes a person’s life, social status, and future life. Especially where a rape victim is not publicly known as such, testifying could potentially destroy a witness’s life as they know it. Understandably, therefore, victims have a much greater disincentive to come forward than they do in a Western nation.
Because of the heightened social stigma which may attach if one voluntarily comes forward to testify at the ICC, it is important to take steps to mitigate such consequences. Since these problems are present to a far lesser degree in a national system, they may bear less on the decision to grant various victim protection measures. By contrast, in the context of the ICC it will be necessary to implement conditions such as witness anonymity, confidentiality, or other steps which may limit the defense’s right to cross examine witnesses, but which will reduce the barrier to voluntary testimony.
To sustain a conviction for mass rape in the ICC, the Office of the Prosecutor is faced with obstacles and requirements which are different from those in a domestic rape case. To begin with, a single victim’s testimony is much less central in a domestic prosecution than in a mass rape case at the ICC. While the necessity of a defense’s unimpeded right to cross examine is thus less extreme in the international compared with the domestic context, the need for heightened sensitivity to the needs of victims is greater. Unlike in domestic system, it is difficult for the ICC to locate victims, and it must rely on victims to voluntarily proffer their testimony. At the same time, the ICC lacks the same authority as a domestic system to compel witnesses to come to court of their own accord. Furthermore, there are greater risks in the international context to the security of victims, given the ICC’s limited witness protection capacity. Finally, victims may face greater burdens of social stigma in the ICC than in a national system.
The ICC thus has a greater need than a national court to mitigate barriers to victim testimony. In light of the lessened prejudice to the defense, and the greater barriers which prevent witnesses from testifying, it is appropriate and even necessary for the ICC to enact evidentiary rules which are different from those in a national system. These would provide increased protection for witnesses, such as confidentiality or anonymity. Such measures may reduce the burden on witnesses, and by extension on the prosecution, without overly undermining the position of the defense.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
See, e.g., Peter Murphy, No Free Lunch, No Free Proof, 8 J. Int’l Crim. Just. 539 (2010); Joseph L. Falvey, Jr., United Nations Justice or Military Justice: Which is the Oxymoron? An Analysis of the Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia, 19 Fordham Int’l L.J. 475 (1995); David Alan Sklansky, Anti-Inquisitorialism, 122 Harv. L. Rev. 1634 (2009). ↩
See Id. ↩
For the purposes of this comment, “mass rape” in the ICC context means rape as defined under the Rome Statute; that is, rape as a war crime or rape as a crime against humanity. ↩
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. 7(1). ↩
Id. at art. 8(1). ↩
Although mass rape is not necessarily a rare occurrence around the globe, it is certainly rare in stable nations with established justice systems, to which people generally compare the ICC. ↩
In the US, only 8.3% of female rape victims identified more than two perpetrators. Although “gang rapes” consist of multiple perpetrators and occur in developed nations, they are generally prosecuted as a subset of simple rape. See Patricia Tjaden and Nancy Thoennes, Extent, Nature, and Consequences of Rape Victimization: Findings From the National Violence Against Women Survey, NIJ Special Report 12 (2006), available online. ↩
B. Anthony Morosco, The Prosecution and Defense of Sex Crimes § 1.01[a] (Matthew Bender, Rev. Ed.) ↩
Id. at § 1.10 [a]. ↩
Id. at § 1.10[a]. ↩
Jennifer L. Truman and Michael R. Rand, Criminal Victimization, 2009, National Crime Victimization Survey 7 (October 2010), available online. ↩
Eugene Volokh, Research on False Rape Reports, The Volokh Conspiracy (April 15, 2005, 4:30 p.m.), available online. ↩
Tjaden and Thoennes, supra note 7. ↩
For the specific elements of the crime of mass rape, see International Criminal Court, Rules of Procedure and Evidence, 9 September 2002, ICC-ASP/1/3, 7(1)(g)-1 and 8(2)(b)(xxii)-1. ↩
These may include, among other things, rape kits, forensic evidence, expert testimony, or witnesses that are not rape victims. ↩
Indeed, many people for whom the ICC has issued warrants of arrest remain at large. Many remain in positions of power or have flouted their arrest, such as Omar al-Bashir, Bosco Ntaganda, and Joseph Kony. ↩
The OTP’s safety policy ensures that the safety of investigators remains paramount. Prosecutor Luis Moreno-Ocampo has stated that the ICC “will face extreme challenges in attempting to investigate in a war zone. Ensuring the safety and security of my investigation teams is a fundamental priority.” Remarks by ICC Prosecutor Luis Moreno-Ocampo at the 27th meeting of the Committee of Legal Advisers on Public International Law—CADHI (Strasbourg , France), available online. Furthermore, in the Darfur investigation “[t]he Court’s ability to reach affected populations was complicated considerably throughout the reporting period because the Court was unable to operate in the Darfur region owing to security concerns.” International Criminal Court, Report of the International Criminal Court, ¶ 5, 35, U.N. Doc. A/62/314 (Aug. 31, 2007), available online. ↩
Consider the 7 situations in which the ICC is currently conducting investigations. The US Department of State has issued travel warnings for all of them, with the exception of Uganda. See US Dep’t of State, Current Travel Warnings (April 4, 2012), available online. ↩
Patrick Vinck, Phuong Pham, Suliman Baldo, and Rachel Shigekane, Human Rights Center, Payson Center for International Development, and International Center for Transitional Justice, Living With Fear: A Population-Based Survey of Attitudes About Peace, Justice, and Social Reconstruction in Eastern Democratic Republic of Congo, 47 (2008) (finding only 27% of survey respondents in the DRC had heard of the ICC). ↩
The US has the highest rate of incarceration in the world, with 730 prisoners per 100,000 of the national population. Entire world—Prison Population Rates per 100,000 of the national population, International Centre for Prison Studies, available online. ↩
Lydia Saad, Americans Express Mixed Confidence in Criminal Justice System, Gallup Politics, available online. ↩
See Vinck et al., supra note 19. Many people in the DRC express frustration with the ICC for its long trials, failure to make arrests, and arbitrary issuance of arrest warrants. They often do not understand that the ICC cannot make arrests, the difficulties of obtaining evidence, or the factors to be considered in conducting a fair trial. ↩
For example, a recent study found that in US gang prosecutions, 51% of prosecutors in large jurisdictions and 43% of prosecutors in small jurisdictions labeled witness intimidation as a major problem. Kerry Murphy Healey, Victim and Witness Intimidation: New Developments and Emerging Responses, NIJ: Research in Action (October 1995) 2, available online. ↩
US Marshals Service, Witness Security Program (2012), available online. ↩
Anne-Marie de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR, 232-233 (2005). ↩
Rome Statute, supra note 4, art. 43(6), art. 57(3)(c), and art. 68. ↩
Rules of Procedure and Evidence, supra note 14, at 16. ↩
International Criminal Court, Summary Report on Protection of Victims and Witnesses Appearing Before the International Criminal Court [hereinafter cited as Summary Report] 7 (November 24, 2010), available online. ↩
David Schwendimann, “Capacity Building: The Institutional War Crimes Legacy of the ICTY and the International Donor Community”, in Richard H. Steinberg (Ed.), Assessing the Legacy of the ICTY. Boston: Martinus Nijhoff, 2011, 218. ↩
Summary Report, supra note 28, at 7. The UN forces in the DRC, MONUSCO, have expressed that the nation’s resources are not now capable of protecting large groups of people. ↩
Juliane Kippenberg, Protecting Child Victims in Sexual Violence Trials in the DR Congo: Suggestions for the Way Forward, Human Rights Watch, available online. ↩
Schwendimann, supra note 29. ↩
Kippenberg, supra note 31. ↩
As highlighted by most of the experts, convictions for mass rape can and should be sustained without direct witness testimony. It is a factor that some victims do like to stand up and be counted. And part of the healing process for some victims is to make others aware of their experiences. This can also be motivation for prosecutors to hear true witness testimony with regards to their experiences.
But in cases before any legal forum there is always the inherent risk of reprisals. Particularly where commanders and state officials are implicated. And the more sophisticated the state the greater the risk of such reprisal. Witnesses run the risk of danger to themselves and dangers to their families. Along with the indignity of cross examination by defence council.
The frustrating part for any legal proffesional particularly in the ICC forum is that the majority of perpetrators of crimes within its jurisdiction are often not brought to account. Only their commanders are brought to account. This is the dfficulty of the whole notion of prosecuting in such cases. Commanders and state officials can order and have direct involment in ordering such attrocities, but can easily refute this by stating these things occur in war and conflict. It is the absolute difficulty in proving any responsibility within war crimes and crimes against humanity. It must be necessary or possibly allready is in effect. That those accused perpetrators brought before the court are administered Truth serum by prosecution teams to establish the facts during investigation. In any case before the court the horrors are to such a degree that simply possesing a knowledge of them should be enough to bring the command structure of these crimes to bear for the actions of them and their subordinates. Then the truth established using truth serums. Turning the whole process about and making it necassary for the accused to disprove their guilt. As in the ECHR Where the state is accused of murder and has behaved dilatory and failed to follow up leads or to readily take the accounts of agents of the state. The ECHR ensures there is a positive obligation on the state and the attention is transferred to the state and the burden of establishing absence of responsibility lies with the state. This principle should be adopted by the ICC.
To reiterate the critical factor of being a witness before ICC and how precarious your life and those most dear to you become. It has to be necessary also for the ICC to increase its powers under the Rome statute to protect witnesses of cases put before them. And also be more expeditious with regards to witness protection. If they deem it necassery for witnesses to testify in any such cases. Then they and the international community must enhance their witness protection program. Including where seemingly civilised countries are implicit within Crimes within the jurisdiction of the court. As stated the more sophisticated the country the greater their ability and prowess at covering any attrocities perpetrated by its agents.
Demonstrating the Occurrence of Mass Rape by Observing Community Level Responses to Alleged Victims and Their Children
Anthropological observation of a community’s response to the alleged victims of mass rape and their children could provide credible evidence of the occurrence of mass rape. In many cultures, after mass rape has occurred, a stigma is attached to women who were victims of rape and against children conceived as a result. For example, in Africa, South America, and the former Yugoslavia, victims of mass rape suffered an observable loss of status as evidenced by a greater number of women who became homebound; a higher rate of divorce or an inability to marry; and lost family support causing a greater number of women to enter prostitution. Similarly, children who were conceived by rape were more often abandoned; were likely to suffer infanticide; and were often denied recognition by government authorities. By observing these responses after mass rape is alleged to have occurred, anthropologists with an expertise in the local culture could use these observable indicators to suggest the actual occurrence of mass rape. The Office of the Prosecutor (OTP) might use anthropological experts to prove mass rape has occurred by analogizing community level responses after mass rape is alleged to have occurred to observations where mass rape is known to have occurred in the past. Even in instances where witnesses are unavailable to testify, the community level response to those alleged to be victims and their children could prove mass rape has occurred.
The International Criminal Court (ICC) has jurisdiction to decide certain cases in which the accused has participated in or had command responsibility for mass rape. Some, however, argue that to require the Office of the Prosecutor (OTP) to present witnesses who themselves were victims of rape asks too much—to reveal themselves as victims might cause women to be neglected, divorced, excluded from their community or even tried for adultery.1 As a result of these significant costs, many women will likely refuse to testify before the ICC. The question then remains: how could the OTP reliably prove the occurrence of mass rape in the absence of firsthand victim testimony? While some argue that the most reliable evidence might come from medical professionals who cared for victims, in many instances there are either too few doctors to treat and record victims’ testimony or women are too frightened or ashamed to seek medical attention.2 In those instances, the observations of medical professionals alone will not be sufficiently complete to prove instances of mass rape.
However, anthropological observation of a community’s response to the alleged victims of mass rape and their children could provide credible evidence of the occurrence of mass rape. In many cultures, after mass rape has occurred, a stigma is attached to women who were victims of rape and against children that were conceived as a result. For example, in Africa, South America, and the former Yugoslavia, victims of mass rape suffered an observable loss of status as evidenced by a greater number of women who became homebound; a higher rate of divorce or an inability to marry; and lost family support causing a greater number of women to enter prostitution. Similarly, children who were conceived by rape were rejected by family members; were more likely to suffer infanticide; and often were denied recognition by government authorities. By documenting these responses after mass rape is alleged to have occurred, anthropologists with an expertise in the local culture could use these observable indicators of stigma to suggest the actual occurrence of mass rape.
In this comment, I will show that in many cultures a stigma is attached to women who were victims of mass rape and against children that were conceived as a result. By analyzing the experience of victims of mass rape and their children in Africa, South America and Yugoslavia, I will provide observable responses at the community level that anthropologists might document. These responses will be grouped into two categories: Part I analyzes community level responses directed at women who were victims of mass rape and Part II analyzes responses directed at children conceived by mass rape. I will show that there is a similar pattern of responses within many communities after mass rape against both victims and their children. Finally, in Part III, I will suggest that the OTP might call upon anthropological experts to prove mass rape by analogizing the community response to victims and their children where mass rape is alleged to have occurred to community responses to victims and their children where mass rape is known to have occurred in the past. Even in instances where witnesses are unavailable to testify, observable community level responses directed at those alleged to be victims and their children could prove that mass rape has occurred.
I. Observing Community Level Responses to Women
In Africa, South America, and the former Yugoslavia a stigma was attached to women who were victims of mass rape; this stigma had an observable impact on victims’ lives in the form of community responses directed at these women. While the precise nature of the stigma might vary across cultures, there are marked similarities in the community response to victims across cultures. For example, in various cultures, victims of mass rape became homebound, were divorced or could not marry, or lost family support causing victims to enter prostitution. These outcomes can be traced back to the stigma which attached to women as victims of rape. In instances where rape is alleged to have occurred, if anthropologists with an expertise in the local culture observe similar responses, then, even without individual, victim testimony, the prevalence of these community level responses could demonstrate the occurrence of mass rape. In many cultures, the presence of women who became homebound; were divorced or remained unmarried; and women who entered prostitution could be used to demonstrate the actual occurrence of mass rape.
A. Women who Become Homebound
Central Africa has a long history of the use of mass rape as a tool of war. In Rwanda, the Democratic Republic of the Congo, and Sudan, both rebel and government forces have used mass rape to intimidate, humiliate and degrade those seen as enemies or indifferent to their cause. In many instances, mass rape is carried out with extreme violence where women are left mutilated or mortally wounded. Many victims tell of being raped by multiple attackers and being violently abused. Therefore, medical examination might be able to confirm the occurrence of mass rape based upon the number of women affected and the nature of their injuries. For example, in the Democratic Republic of the Congo, medical professionals observed over seven hundred instances of fistula where the lining of the vagina is torn linking the vagina and the rectum and causing the uncontrollable leakage of urine and feces through the vagina.3 These injuries confirm statements from victims recounting assault by multiple attackers and the insertion of crude objects such as knives, gun barrels and bottles during and after a rape.4 However, the actual number of victims cannot be confirmed because many women refuse to come forward for fear of social stigma which may result from being labeled as an unchaste woman.5
Although women, even when suffering from painful and sometimes deadly injuries, may choose not to seek medical help, their absence from community life might be seen as credible indicia of the occurrence of mass rape. Many women suffering from fistula admitted that their incontinence had made them outcasts; victims credited the smell from their wounds as causing others to avoid them and the shame of their condition as requiring them to remain in their homes at almost all times.6 By observing the number of women who have become homebound after alleged crimes, expert anthropologists might be able to estimate the extent of the crimes committed without requiring the presence of victims before the Court. The very fact they a large number of women have become homebound after violent mass rape is alleged to have occurred might be used as circumstantial evidence to show that mass rape in fact occurred; such a response would be unlikely in the absence of actual injuries caused by mass rape.
B. Women who Become Divorced or Separated
Another observable result of the stigma against victims of rape at the community level is an increased number of women who become separated or divorced from their husbands. In some cultures, a woman’s standing derives from her relationship with her husband; a woman is valued for her ability to serve as a loyal wife and bear her husband’s children.7 If a married woman’s status as a victim of rape becomes known, her standing is destroyed because she is no longer seen as a loyal spouse. For example, in Rwanda, rape was used to belittle husbands as the rape was seen as destroying the value of a man’s wife.8 As a result, many men chose to divorce their wives after rape in Rwanda.9 Similarly, in Peru, women were seen as “wasted” after suffering mass rape and were condemned by their husbands and ostracized by their families.10 In the Democratic Republic of the Congo, even if a woman was not abandoned, she might be pushed aside as a “second wife”—while her husband married a chaste wife to replace her.11 Lastly, in Yugoslavia, not only did women suffer divorce after revealing they had been raped, but a husband might kill his wife for adultery in order to preserve his own honor.12 Even where a woman was an unwilling victim, her suffering is seen as dishonor to her husband and many husbands would no longer accept their wives.
C. Women who Remain Unmarried
Similarly, a woman who is raped before she is married may be seen as damaged and, as a result, will find it near impossible to find a husband. In some cultures, if unmarried, a woman’s status derives from her potential to be an honorable wife as evidenced by her virginity.13 A woman who is not a virgin at the time of marriage is seen as suspect and brings dishonor to the man she marries. In Yugoslavia, the stigma against victims of rape was so strong that mass rape was used to prevent women from reproducing; those who had been raped were seen as “unmarriageable” within their community and were therefore unlikely to marry and raise a family.14 In Rwanda, some victims stated that being a victim of rape was a fate worse than death because it would destroy any value one had in her community.15 To identify oneself openly as a victim of rape would likely foreclose the possibility of marriage as well as deprive a woman of much needed support from a future husband. Moreover, in Sudan and Rwanda, where rape was carried out in public to intimidate local men, and women were often branded by cutting their skin, large numbers of women found themselves unable to marry after being victimized.16 Finally, in Rwanda, over seventy percent of rape victims contracted HIV; rumors persisted that militias recruited men who were HIV positive to rape women in order to infect victims of rape and their partners.17 As a result, potential husbands rejected women who had been raped for fear of contracting sexually transmitted infections including HIV.18 In many cultures, a large number of unmarried women in a community might be a credible indicator of the occurrence of mass rape.
D. Women who Become Prostitutes
A large number of women who become prostitutes after mass rape is alleged to have occurred might also demonstrate the occurrence of mass rape. In Africa and the former Yugoslavia, women who were victims of mass rape often entered prostitution after losing the support of their husband or other family members. It was common for victims of rape to lose family and community support in Yugoslavia especially if a victim had conceived a child as a result.19 Many women also found it near impossible to keep a job because the trauma they suffered caused lasting mental or physical injury.20 As such, many women were left with few means of survival other than prostitution. Similarly, in some African cultures, a victim of rape often cannot marry and may be abandoned by her family. In the Democratic Republic of the Congo, focus groups with victims and family members suggested it was a widely accepted practice to expel rape victims from the community.21 Women who were abandoned by their families were left to trade sex for food, clothing and other necessities.22 However, numerous other factors might also push women into prostitution including discrimination in the labor market and vulnerability as a migrant.23 Therefore, simple increases in the number of women in prostitution may be inconclusive, unless anthropologists can demonstrate that women entered prostitution as a result of lost opportunities to marry or lost family support as a result of her status as a rape victim.
II. Observing Community Level Responses to Children
The stigma attached to women who are victims of mass rape is often carried over to children conceived as a result of mass rape as well. For example, in Rwanda children conceived during rape were given names such as “child of hate,” “the intruder,” and “little killer.”24 Similarly, in the former Yugoslavia, children who were conceived as a result of rape were referred to as “children of shame” or “children of hate” and were often ostracized by their community.25 The stigma against children conceived as a result of mass rape caused an observable increase in the number of children who were abandoned; infanticide and unsafe abortions; and led to the decision to deny children conceived by rape recognition in the form of birth certificates. These community responses were a direct result of the occurrence of mass rape and could be used to prove the occurrence of mass rape in those communities. Similarly, anthropologists might use these community responses to children where mass rape is alleged to have occurred as evidence of the actual occurrence of these crimes. Before the ICC, in instances where there exists a similar stigma against children conceived as a result of rape, anthropologists might eliminate other likely causes for these community responses to demonstrate the relationship between the observed community level responses to these children and the actual occurrence of mass rape.
A. Children who are Abandoned
Another community level response which might demonstrate the occurrence of mass rape is the exclusion or abandonment of children who are alleged to have been conceived by rape. In Rwanda, rape was used to cause victims to bear the children of their enemy and marked victims as unmarriageable.26 The children who resulted from rape were often rejected by their families and members of the community even threatened to kill “rape children” if they were not sent to be “where they belonged” with their fathers.27 Estimates state that as many as 10,000 children resulted from the mass rapes which occurred in Rwanda and the stigma attached to these children caused widespread abandonment.28 Similarly, in the former Yugoslavia, forced impregnation was used to cause Bosnian Muslim women to bear Serbian children.29 Bosnian women not only resented the child they were forced to bear, but the choice to keep a child would almost certainly prevent a woman from marrying causing both the mother and child to live in poverty.30 As a result, many women abandoned their children to government institutions upon birth.31 The total number of children conceived by rape in the former Yugoslavia is unknown, however, NGOs stated that in only a few months in 1993 between 500 and 600 children conceived by rape were born and abandoned to institutions.32 It might be difficult to determine if a child was abandoned because he or she was conceived by rape or because his or her mother did not have resources to provide for their children. However, abandonment along with other factors such as a lack of government documents as discussed below might clarify this inference.
B. Children who Suffer Infanticide or Illegal Abortion
Many women who conceived as a result of mass rape resented the child they conceived and the stigma against children of rape often allowed for these children to be killed shortly after birth. As a result, many children suffered infanticide after birth or mothers chose to have illegal abortions during pregnancy. In the former Yugoslavia, women who were forcibly impregnated were released by their captors only after passing the point at which one could legally have an abortion.33 As a result, high levels of infanticide persisted where children would be killed shortly after birth; within the Bosnian community there was widespread support for infanticide where a Bosnian mother was carrying a Serbian child.34 Similarly, in Rwanda, illegal abortions were common as well as infanticide where children were neglected after birth and allowed to die.35 In Peru, after mass rape, some women chose to have illegal abortions which they saw as a way to manage the shame of being a victim of rape.36 Lastly, in Sudan, Doctors Without Borders observed an instance where a pregnant mother starved herself to death rather than give birth to her child.37 Although the exact cause of infanticide and illegal abortion may be difficult to determine, anthropologists might trace the scale and community acceptance of infanticide and illegal abortion to the occurrence of mass rape. After ruling out other likely explanations, these instances might be presented as a response to the actual occurrence of mass rape; without the occurrence of mass rape, it would be unlikely for these responses to have occurred.
C. Children who are Denied Government Recognition
Lastly, anthropologists might document instances where large numbers of children are denied birth certificates or other government documents as evidence of mass rape. In the former Yugoslavia, government officials denied children conceived by mass rape necessary government documents such as birth certificates.38 Children were denied documents to ostracize them from the community and prevent intermixing between children viewed as foreign with those from the community. Because children lacked proper government documents, they were then denied citizenship and were refused access to the public education system.39 The absence of birth certificates also prevented these children from opening bank accounts as adults.40 The denial of basic government documents has had a lasting and observable impact on children alleged to have been conceived by rape. Similarly, where children have been denied documents where mass rape is alleged to have occurred, such might demonstrate the actual occurrence of mass rape. Where government documents such as birth certificates are of critical importance to a child, expert anthropologists might find that the denial of these documents results from a community response seeking to exclude those children who were conceived as a result of the actual occurrence of mass rape.
III. Community Level Responses to Victims and Children as Proof of Mass Rape
Changes within a community such as a greater number of women who become homebound; who become divorced or remain unmarried; and greater numbers of women engaged in prostitution might demonstrate that mass rape has occurred. Similarly, community responses to children conceived by mass rape such as abandonment; infanticide and illegal abortion; and the denial of government documents might show the occurrence of mass rape. Expert anthropologists could use the presence of a stigma against victims or children conceived as a result of rape, along with community responses which express that stigma, to demonstrate mass rape has occurred.
In Africa, South America, and the former Yugoslavia, the above responses were the result of the actual occurrence of mass rape. Similarly, anthropologists might identify these responses within other communities where mass rape is alleged to have occurred to demonstrate the occurrence of mass rape. Using accepted social science methods, anthropologists might be called before the ICC to disprove other likely explanations for these community responses or even to show that these responses are a direct result of the occurrence of mass rape. Although expert anthropologists might be unable to draw a clear conclusion where factors other than the occurrence of mass rape may cause an observed community response, where multiple community level responses discussed above can be observed, anthropologists might provide a dynamic picture of events affecting a population which eliminates other likely causes and demonstrates the occurrence of mass rape based upon the totality of community level responses observed.
Further, it is unlikely that a community could successfully manufacture the community level responses listed above. In the case of the alleged victims of mass rape, the high cost to victims and children suggests the truth of their story. For example, because women are oftentimes reliant on marriage and family support, it is unlikely that a greater number of women would choose to forego marriage or give up their status in the community to become sex workers. Similarly, high levels of abandonment, infanticide or the denial of government documents might be traced to the occurrence of mass rape if it can be shown that children who were not alleged to have been conceived by mass rape experienced a different result. By observing multiple community level responses in totality, expert anthropologists might demonstrate that only the actual occurrence of mass rape could explain the sum of community level responses observed together.
In some cultures a stigma is attached to women who are victims of mass rape and children who are conceived as a result. This stigma against victims of mass rape is often expressed as an observable loss of status as evidenced by a greater number of women who became homebound; a higher rate of divorce or an inability to marry; and lost family support causing women to enter prostitution. Similarly, children who were conceived by rape were more often abandoned; were likely to suffer infanticide; and may be denied recognition by government authorities as a result of their status. Where anthropologists with expertise in the local culture can demonstrate these community level responses flow from a stigma against alleged victims of mass rape and their children, observations of these responses might be relied upon as a powerful indicator of the actual occurrence of mass rape. In instances where mass rape is alleged to have occurred, the OTP might rely upon expert anthropologists to eliminate other likely causes for observed community responses or even to demonstrate that observed community level responses are the direct result of the actual occurrence of mass rape.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Jonathan Harwood, Ordeal of Rape Victim Amina Filali Shocks Morocco, The Week (March 19, 2012), available online. ↩
Peter Moszynski, Rape Victims in Sudan Face Life of Stigma, Says Report, 329 BMJ 251 (2004). ↩
Ahuka Ona Longombe, Kasereka Masumbuko Claude and Joseph Ruminjo, Fistula and Traumatic Genital Injury from Sexual Violence in a Conflict Setting in Eastern Congo: Case Studies, 16 RHM 132, 133 (2008). ↩
Moszynski, supra note 2. It is important to note that experts believe the physical injuries which do not result in fistula often diminish within ten days of the attack, therefore it would be difficult for medical professionals to confirm instances of rape simply by observing the physical symptoms of a woman once time has passed. ↩
Patricia A. Weitsman, The Politics of Identity and Sexual Violence: A Review of Bosnia and Rwanda, 30 Hum. Rts. Q. 561, 564 (2008). ↩
Erin K. Baines, Body Politics and the Rwandan Crisis, 24 TWQ 479, 488 (2003). ↩
Talea Miller, Victims of Sexual Violence Face Stigma, Unresponsive Justice System, PBS NewsHour (June 15, 2007), available online. ↩
Jean Franco, Rape: A Weapon of War, 25 Social Text 22, 31 (2007). ↩
Stefan Kirchner, Hell on Earth—Systematic Rape in Eastern Congo, JHA (August 6, 2007), available online. ↩
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, 197 (2008). ↩
Marleen Bosmans, Challenges in Aid to Rape Victims: The Case of the Democratic Republic of the Congo, 4 Essex Hum. Rts. Rev. 1, 7 (2007). ↩
R. Charli Carpenter, Surfacing Children: Limitations of Genocidal Rape Discourse, 22 Hum. Rts. Q. 428, footnote 59 (2000). ↩
Beltz, supra note 12 at 189. ↩
Justin Wagner, The Systematic Use of Rape as a Tool of War in Darfur: A Blueprint for International War Crimes Prosecutions, 37 Geo. J. Int’l L. 193, 205 (2005). ↩
Lori A. Nessel, Rape and Recovery In Rwanda: The Viability of Local Justice Initiatives and the Availability of Surrogate State Protection for Women that Flee, 15 Mich. St. J. Int’l L. 101, 109 (2007). ↩
Kirchner, supra note 11. ↩
Kate Holt and Sarah Hughes, Bosnia’s Rape Babies: Abandoned by their Families, Forgotten by the State, The Independent (December 13, 2005), available online. ↩
Bosmans, supra note 13 at 10. ↩
Id. at 7. ↩
Chris Corrin, Transitional Road for Traffic: Analyzing Trafficking in Women from and through Central and Eastern Europe, 57 Europe-Asia Studies 543, 550 (2005). ↩
Weitsman, supra note 7 at 577. ↩
Id. at 567. ↩
Weitsman, supra note 7 at 577. ↩
Bosmans, supra note 13 at 6. ↩
Weitsman, supra note 7 at 577. ↩
Id. at 570. ↩
Id. at 577. ↩
Holt, supra note 19. ↩
Carpenter, supra note 14 at 465. ↩
Weitsman, supra note 7 at 577. ↩
Id. at 571. ↩
Id. at 577. ↩
Franco, supra note 10 at 33. ↩
Miller, supra note 9. ↩
Holt, supra note 19. ↩
Carpenter, supra note 14 at 467. ↩
Holt, supra note 19. ↩
The principles of natural justice are the basic principles that has to be followed by any court to conduct a trial. it is assumed that any accused in a case until the court found him guilty is presumed innocent irrespective of the gravity of the charges leveled against him.This is basically to show that the court does not conduct a trial and deliver justice with a pre-concieved notion or else such trial will remain partial biased to the victims like the IMT that appeared more like a vindictive trial giving least importance to fundamental rights for defence .The the court is supposed to give justice on the merits of the case and the evidence produced before the court. The rape trials must also be conducted in a similar manner providing full privacy to the victims and hear the case in camera safeguarding the victims right to privacy and provide any previlige that may deem fit to the court in the eyes of law keeping in mind the trauma suffered by the victims. It is also upon the prosecution to counsel the victims to report their trauma to the court for justice leaving behind their fears and taboos which block them from testifying in courts and get such rightful justice from the court for the trauma suffered and above all it is utmost important to punish the offenders for such crimes.It is important to instil confidence in the victims that the perpetrators should not walk free from justice for the trauma cased to the victims. Now that there are enough precedents on rape trials and past cases and trials show that walking away from such charges is not so easy and the punishment is also severe as it is considered the gravest of the grave crimes. The victims must feel its high time to feel determined to bring the perpetrator to justice rather than succumb the trauma. Now that the retributive justice system is followed the justice is to be delivered keeping in mind the jurisprudence behind tu quoque yet set as an apt precedent for future trials based on the merits of the case and the evidences produced by the prosecution.
Direct victim testimony is beneficial in proving the crime against humanity of rape, but it is not always available. Nonetheless, the ICC can still sustain a conviction of this crime by employing alternative forms of evidence and testimony.
Rape has long been regarded as a moral crime that is part of the spoils of war, not as grave as other international crimes.1 Hence, historically, prosecutions for rape have been exceedingly scarce. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) formulated several definitions of rape through various cases.2 This set the tone for the adoption of rape as a crime against humanity3 and a war crime4 by the International Criminal Court (ICC).
The ICTY, ICTR and ICC have used victim testimony in many types of cases, ranging from genocide to sexual violence. In cases of rape, however, the majority of victims are highly traumatized and stigmatized in their community. The question of whether a conviction for rape as a crime against humanity can be sustained without direct victim testimony has been raised in an effort to avoid submitting victims of rape to lengthy, stressful, and re-traumatizing trials. Current UN High Commissioner on Human Rights Navanethem Pillay5 has expressed a belief that prosecuting cases of sexual violence can be achieved without individual testimony.6 Prosecutor of the ICC Luis Moreno-Ocampo, as well as several scholars, have also expressed an interest in using alternative evidence that would not require live testimony from victims.7
International courts have increasingly accepted evidence that does not involve live testimony by victims.8 The Rules of Procedure and Evidence of the ICC do not require that witnesses be actual victims: they can be other types of witnesses to the crime. However, it is important to remember that the ICC “must be convinced of the guilt of the accused beyond reasonable doubt.”9 To satisfy this standard and sustain a conviction without direct victim testimony, the ICC must turn to alternative forms of evidence to prove each element of the crime.
In this comment, I argue that the elements of the crime of rape can be proven without direct victim testimony by gathering sufficient alternative evidence. Part II of this comment elaborates on the elements of rape and the evidence that can be used to satisfy these. Part III concludes by identifying how the ICC Office of the Prosecutor must reorganize its investigations to prosecute mass rape without victim testimony.
II. The Elements of the Crime Against Humanity of Rape
The ICC includes rape as a crime against humanity and as a war crime.10 This comment focuses on rape as a crime against humanity against civilians.11 The elements for the crime against humanity of rape are as follows:
The first two elements (substantive elements) correspond to the actual acts of rape and the requirements to prove that the rape occurred.13 The third and fourth elements are “the two key elements” that “the prosecutor has to prove in order to take actions against rape as a crime against humanity, if not, it constitutes a crime under domestic law, and does not fall under the scope of the ICC.”14 Therefore, the last two elements make the acts of simple rape into a crime against humanity, which in turn gives the ICC jurisdiction. The following sections analyze each element and alternative forms of evidence that could be probative enough to fulfill the requirement.
A. Element 1: Invasion of the Body
Invasion of the body can be proven through testimony or documentary data gathered by doctors, psychologists, and other experts15 in areas where victims have allegedly been sexually attacked. These individuals come into contact with victims of rape through various means and in some instances arrive on the ground shortly after an attack occurs. A doctor could have medical data on her treatment of victims who sought medical assistance following a mass rape.16 This medical data, treatment offered, and physical and mental evaluations can be strong evidence in cases of rape, particularly when collected over a short period of time and in large numbers following a known or suspected attack.17 Medical data on sexual violence was previously provided by hospitals in Kenya following the post-election violence in 2007-2008, where the Nairobi Women’s hospital and other local partner hospitals took in over 900 sexual violence cases in the span of a couple of months.18
Medical data, especially when systematically kept, can include physical evaluations of a patient, including indicators of penetration by a sexual organ or other objects. The first element of the crime of rape only requires invasion of the body “resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator.”19 This low threshold should be readily ascertainable to doctors, who could report on all the victims of rape they treated. Furthermore, proxy data can be used as circumstantial evidence to supplement other medical data in proving that rapes were committed.20 Proxy data is “[d]ata related to the consequences of sexual violence…including outliers in pregnancy, sexually transmitted infections, traumatic symptoms, abortions, and consumption of certain drugs or tests.”21 This type of information is highly relevant and can aid in proving the two substantive elements of rape (invasion of the body through force or threat of force). Proxy data can be collected not simply from doctors, but also from NGOs, psychologists, police officers, and other international and national organizations. The limits of this type of data should be acknowledged as it might be deemed too attenuated. However, it may still serve to supplement other evidence with greater probative value.
Additionally, the ICC can encourage doctors who are willing to testify regarding the victims of rape they treated by employing the safeguards afforded to witnesses in ICC trials. Doctors could testify to their objective evaluation and physical examination of victims in addition to the information given to them by the victims regarding the attack.22 Documentary evidence reporting a large number of invasions of the body within a short time frame following a known or suspected attack would be a strong indicator of mass rape. This would be further strengthened when doctors or other experts treating the victims are willing to come forward and testify to their treatment and evaluation of victims.
B. Element 2: Force or Threat of Force
The second substantive element of rape requires that the invasion be committed by force, threat of force, by taking advantage of a coercive environment or against a person incapable of giving genuine consent.23 Similar to the first element, this element can be proven using pattern evidence from doctors, psychologists, non-governmental organizations, police officers, other experts and eyewitness testimony. Many of the strategies pointed out above likewise apply to proving that force or threat of force was involved, and that the victim was thus raped. There are some additional factors that can supplement the evidence that force or threat of force were involved.
Many of the rapes that occur are extremely violent24 and can leave lasting physical and emotional injuries. This information, included in medical reports or testimony by doctors, would evidence the use of force during an attack. Furthermore, this information can also be found in police reports. In Kenya, the ICC used pattern evidence by relying on Kenya Police Crime Records where there were 876 cases of rape and 1,984 of defilement in 2007.25 These medical and police reports can be used by the prosecution to show force, especially when the reports indicate an extraordinary amount of rapes in a short period of time.
NGOs that regularly admit and interview victims of sexual violence can also be sources of evidence. Victims might feel safer speaking to NGOs that are present in their communities about their experience, which would give NGOs valuable information regarding rapes that have occurred. In addition, some NGOs actually go out into villages that have been attacked and document the physical injuries and destruction that has occurred. This type of information, if properly and systematically collected, could be useful in showing force.
Witness testimony by those who may not have been victims of rape can also be valuable in proving this element of the crime. For example, a civilian may have been able to hide during an attack, but still witnessed the force used by the perpetrators. This individual could be essential to establishing this element of rape, even if they did not witness the actual rapes.
C. Element 3: Widespread or Systematic Attack
Once the first two elements are fulfilled and the act of rape has been proven, it is necessary to establish that the conduct was part of a widespread or systematic attack against civilians. This element goes to making the rapes grave enough to come under the jurisdiction of the ICC, which aims to prosecute the worst offenders of crimes against humanity.26
Prosecutor Moreno-Ocampo has expressed interest in alternative methods developed by social scientists, including statistical analysis, to refine the tools used by the ICC.27 An alternative method to proving that an attack was widespread or systematic is pattern evidence.28 Pattern evidence can be shown for international crimes with a large number of incidents by looking at certain common features, including the profile of the alleged perpetrators, the profile of the victims, the geographical and chronological distribution of the crime, and the modus operandi in the commission of the crime.29 Pattern evidence, such as expert testimony, statistics and crime mapping, has previously been used in other mass crimes, though its use has been very limited in sexual violence crimes.30 Using these methods to prove the elements of rape could be an alternative way of arguing a case without having to bring victims into a trial and forcing them to relive their trauma.31
Pattern evidence can include reports from doctors, police, and NGOS surveyed over time. For example, if medical records show a higher than normal incidence of rapes clustered around a particular time, this tends to show that it was widespread. This is especially true if the reports follow the date of a known attack. If this type of data is available consistently and simultaneously with attacks, this is further proof of the systematic nature of these rapes. The more these reports are surveyed over time and coincide with each other, the more they can help establish the systematic nature of the crimes.
Other types of evidence that would be highly probative are the documentation of attacks, policies to rape civilians, or the lack of policies forbidding sexual violence against civilians. Any records and documentation similar to those kept by the Germans during the Holocaust32 would highlight that the rapes were committed as part of a widespread or systematic attack. Unfortunately, most perpetrators sought by the ICC do not leave paper trails: if they do have a policy condoning sexual violence, it is not written down. However, in cases where documentary policies or records are encountered, they are of great value, as shown during the Nuremberg trials, and could be used as evidence to prove this element as well as the fourth element below.
Furthermore, former combatant testimony can also help satisfy this element of the crime. Although this may be difficult to obtain, the ICC could seek to cooperate more extensively with the UN when the UN is involved in a country where mass rapes have occurred. For example, in countries such as the Democratic Republic of Congo, the UN peacekeeping forces (MONUSCO) engage in demobilizing and repatriating ex-combatants. In this process, MONUSCO could work with the ICC to supply volunteers who are willing to testify regarding internal policies or orders that were given. This type of testimony could be highly probative if acquired in certain conflict zones like the DRC, and if there were more cooperation between the UN and the ICC, this evidence might be more readily attained.
D. Element 4: Mens Rea
A perpetrator must have knowledge or intend that the conduct be part of a widespread or systematic attack against civilians. In arguing the mens rea in the crime against humanity of rape, the prosecution can argue dolus eventualis, or indirect intention.33 The argument is that “rape is commonly known as a systematic way of spreading fear and terror within the civilian population” and that the accused, whether or not intending to do so, “accepts the consequences that he/she could be part of this policy, especially when committed in times of armed conflicts.”34 Put another way, the knowledge and acquiescence of rape being used by armed groups under the perpetrator’s control is an indicator of the requisite mens rea.
Furthermore, the types of evidence discussed to prove the third element of rape could also potentially work to prove the mens rea element of rape. When rapes are continually occurring during attacks, the accused, even if they are not themselves committing the rapes, cannot be deemed ignorant of these actions. Knowledge becomes more and more evident as the media, NGOs, and other parties publicize the mass rapes that occur during attacks. Hence, by acquiescing to these “spoils of war,” they satisfy the mens rea component and accept the consequences of these rapes. In essence, combining the indirect intention argument with evidence presented to prove that the rapes were a part of a widespread or systematic attack helps establish the mens rea element.
In conclusion, direct victim testimony is not indispensable to a prosecution’s case if there are alternative forms of evidence sufficient to establish the four elements of rape. International tribunals have moved in the direction of protecting victims when testifying. The ICC moved even further by including rape as a crime against humanity, when no other international statute had previously done so. Given this higher awareness and acceptance of sexual violence as a crime warranting international condemnation, a case with the right kind of alternative evidence probative beyond a reasonable doubt is plausible, even without direct victim testimony.
To accomplish this, the ICC would need to reorganize the way it conducts investigations and collects evidence. The ICC would have to work with doctors, NGOs, local law enforcement, the UN, and other actors on the ground to ensure accuracy in the systematic gathering of alternative evidence. This collaboration would then enable the ICC to prove the crime against humanity of rape without relying on direct victim testimony. This would not only help safeguard victims, but also enable the ICC to seek prosecution whenever direct victim testimony is unavailable.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
See Kristen Boon, Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy, and Consent, 32 Colum. Hum. Rts. L. Rev. 625 (2001); see also John Hagan, Richard Brooks, and Todd Haugh, Reasonable Grounds Evidence Involving Sexual Violence in Darfur, 35 Law & Soc. Inquiry 881 (2010). ↩
See Prosecutor v. Akayesu, Judgment, ICTR-96-4-T (Sept. 2, 1998), available online; Prosecutor v. Furundzija, Judgment, IT-95-17/1 (Dec. 10, 1998), available online; see also Rebecca L. Haffajee, Prosecuting Crimes of Rape and Sexual Violence at the ICTR: The Application of Joint Criminal Enterprise Theory, 29 Harv. J.L. & Gender 201 (2006). ↩
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, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute], article 7. ↩
Id. at art. 8. ↩
Pillay has previously served as a judge of the ICC and as the President of the ICTR. ↩
See Hagan, supra note 1, at 882. ↩
Id.; see also Xabier Agirre Aranburu, Sexual Violence Beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases, 35 Law & Soc. Inquiry 855 (2010), an earlier version of this article is available online. ↩
See Patricia M. Wald, Dealing with Witnesses in War Crime Tribunals: Lessons from the Yugoslav Tribunal, 5 Yale Hum. Rts. & Dev. L.J. 217 (2002) (discussing that the ICTY’s old rule expressing a preference for live testimony was replaced by a new rule that allows written statements in lieu of oral testimony under certain circumstances). ↩
See Rome Statute art. 66(3). This standard and the Rules of Procedure and Evidence help safeguard the fairness and due process rights of the defendant. ↩
See Rome Statute art. 7-8. ↩
Note that the difference generally between rape as a crime against humanity and as a war crime is that the former does not require a connection with an armed conflict under the Rome Statute whereas the latter requires an internal or international armed conflict. ↩
International Criminal Court, Elements of Crimes, ICC-ASP/1/3 (part II-B), Adopted and Entry into Force 9 September 2002, updated at Kampala, 31 May–11 June 2010 [hereinafter cited as Elements of Crimes], available online. ↩
Supra note 3. ↩
Nicole Brigitte Maier, The Crime of Rape under the Rome Statute of the ICC: With a Special Emphasis on the Jurisprudence of the Ad Hoc Criminal Tribunals, 3 Amsterdam Law Forum 146, 153-54 (2011). ↩
Hearsay evidence is allowed in international criminal law. This could mean that psychologists and other experts not directly treating the victims medically may be able to testify regarding the victims’ statements. See Hagan, supra note 1, at 890-91. ↩
Note that in many cultures, victims of rape are stigmatized and do may not seek medical attention. This could pose a problem of obtaining a sufficient amount of rape cases through medical data. See id. ↩
The victim identities could be protected in cases where medical data is used to prove invasion of the body. In these cases, doctor testimony or records indicating the extent of the invasion gets rid of the necessity of victim testimony regarding the invasion. ↩
See 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, 945-47 (2011); see also Agirre, supra note 7, at 866. ↩
See Elements of Crimes, supra note 12. ↩
See Agirre, supra note 7. ↩
Id. at 867. ↩
See supra note 15 (Hearsay evidence is allowed in international criminal law.) ↩
See Elements of Crimes, supra note 12 (note that consent is elaborated by the Elements of the Crime and by Rule 70 of the Rules of Procedure and Evidence). ↩
See Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, 8 Int’l Crim. L. Rev. 55, 63-65 (2008) (discussing the horrific acts of rape and sexual violence for which Sylvestre Gacumbitsi was tried). ↩
Koenig et al., supra note 18, at 945. ↩
Elements of Crimes, supra note 12. ↩
Hagan, supra note 1, at 882. ↩
See Agirre, supra note 7; Hagan, supra note 1. ↩
Id. at 856. ↩
Sarah Louise Steele, Victim-Witnesses in the International Criminal Court: Justice for Trauma, or Trauma for Justice?, 12 Austl. Int’l L.J. 99 (2005) (arguing that although some victims cope and feel a sense of empowerment through testifying, many others in cases where gross violations have occurred experience further trauma through the legal process.) ↩
The Allies found incredible amounts of incriminating Nazi orders and directives that served as documentation of Nazi leaders’ plans and programs. See Patricia M. Wald, To ‘Establish Incredible Events by Credible Evidence’: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings, 42 Harv. Int’l L.J. 535 (2001). ↩
Maier, supra note 19, at 154-55. ↩
Id. at 155. ↩
Discerning a Coercive Environment: What Circumstances of Mass Rape Generate Inherent Compulsion
Despite the lack of a definition for “coercive environment,” the origins of the Elements of Crimes (that accompany the Rome Statute) provide the factual background for developing an analytical roadmap for explication of that term. In doing so, the interpreter will discover a multi-factored test. Beginning with the most salient factor for demonstrating whether a coercive environment exists, 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.
Rape law poses such idiosyncratic and difficult issues that even law professors will skip the subject in their criminal law survey course.1 Much of the current controversy stems from disputes over how to treat consent. In heavily militarized zones, these issues are heightened as the potentially high presence of compulsion enters along with armed combatants. To be sure, coercion exists in peaceful areas not beset by violence. The obvious question, then, is what gives rise to the added tension and fear which create inherent coercion.
In the context of International Criminal Court (“ICC”) prosecutions, the lack of any definition for “coercive environment” within the Rome Statute, or its accompanying Elements of Crimes (“EOC”), offers little interpretive guidance for judges and practitioners. The necessarily factually sensitive nature of the inquiry also compounds this difficulty. For instance, does a coercive environment inherently arise when soldiers brandish weapons; when a group of soldiers captures a village; or when a woman is simply outnumbered at a governmental compound? The Rome Statute, and its accompanying EOC, do not provide clear answers to these questions.
This paper proceeds by first offering the necessary factual and legal backdrop for understanding the current trends in the international criminal law of rape in Part IIA. Part IIB begins by documenting the development of the doctrine of coercion, which serves as a foundation for understanding how ad hoc international criminal tribunals have treated coercive circumstances in rape. Part IIC catalogues the firm establishment of proving mass rape through the demonstration of a coercive environment, without a showing of force or non-consent. Derived from international criminal law, Part IID posits an analytical framework for making such a determination. Part IIE operationalizes this test based upon its various, unique factors. Part III gives concluding remarks.
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:
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:
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:
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:
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.
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).
Susan Estrich, Teaching Rape Law, 102 Yale L.J. 509, 510 & 516 (1996). ↩
Catharine A. MacKinnon, Defining Rape Internationally: A Comment on Akayesu, 44 Colum. J. Transnat’l L. 940, 956-58 (2006). ↩
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). ↩
See Michelle Anderson, Reviving Resistance in Rape Law, 1998 U. Ill. L. Rev. 953, 985-87. ↩
See Model Penal Code § 213.1. ↩
See, e.g., In the Interest of M.T.S., 609 A.2d 1266 (1992). ↩
MacKinnon, supra note 2, at 941. ↩
Model Penal Code § 213.1, comment on 314. ↩
Model Penal Code § 212.5. ↩
Cal. Penal Code § 261(a)(2) (emphasis added). ↩
§ 261(b). ↩
N.J. Stat. Ann. § 2C:14-2c(1). ↩
MacKinnon, supra note 2, at 941. ↩
German Criminal Code, Chapter 13, Section 177, available online (english translation). ↩
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) ↩
Id. at Art. 7(1)(g)-1 2., Crime against humanity of rape (emphasis added). ↩
International Criminal Court, Rules of Procedure and Evidence, Adopted and Entry into Force 9 September 2002, ICC-ASP/1/3, Rule 70(a). ↩
See International Criminal Court, supra note 16, at Art. 7(1)(g)-1 2. ↩
Norman J. Singer and J.D. Shambie Singer, Sutherland Statutes and Statutory Construction, § 47.16 (7th ed. 2007). ↩
Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, ¶ 688 (Sept. 2, 1998), available online. ↩
Prosecutor v. Delalic et al., Case No. IT-96-21-T, Judgment, ¶¶ 478-79 (Nov. 16, 1998), available online. ↩
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....”). ↩
Prosecutor v. Kunarac et al., Case Nos. IT-96-23-T & IT-96-23/1-T, Judgment (Feb. 22, 2001), available online. ↩
Prosecutor v. Kunarac, Case No. IT-96-23 & IT-96-23/1-A, Appeals Judgment, ¶ 129 (June 12, 2002). ↩
Id. at ¶ 130 (emphasis added). ↩
Prosecutor v. Muhimana, Case No. ICTR 95-1B-T, Judgment (Apr. 25, 2005). ↩
Id. at ¶ 546. ↩
MacKinnon, supra note 2, at 957-58. ↩
See Akayesu, supra note 19, at ¶¶ 688, 692, & 693. ↩
Kunarac, supra note 26, at ¶ 130. ↩
Akayesu, supra note 19, at ¶ 688. ↩
Id. at ¶ 545 (citing Furundzija, supra note 25, at ¶ 271). ↩
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. ↩
Id. at ¶ 18, 22, & 23. ↩
Id. at ¶ 552. ↩
Id. at ¶ 551-52. ↩
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). ↩
Muhimana, supra note 31, at ¶¶ 552-53. ↩
Id, at ¶ 18. ↩
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. ↩
Using Pattern Evidence to Support Mass Sexual Violence Convictions at the International Criminal Court
It is often difficult to get direct victim testimony in prosecutions for acts of mass sexual violence in conflict zones. Victims might be unwilling or unable to testify before the International Criminal Court for security, logistical or social reasons. In light of that concern, there is a need for a different type of evidence that could support an accusation of command responsibility where sexual violence is used as part of a widespread and systematic attack against a civilian population. Pattern evidence such as medical and statistical reports can fill that gap. By admitting such documents, prosecution can support an accusation based upon command responsibility by showing that there was a pattern of activity that may have been under the control of an accused commander. However, such evidence would need clear protections against hearsay in order to ensure that rights of the accused are respected.
In mass rape prosecutions, direct victim testimony is often unavailable or difficult to get. In situations involving armed conflict or other mass social disruptions, there are a number of reasons for this unavailability: social stigma and physical security, for example. In a domestic rape prosecution, it is often possible to get victims to come forward and testify against the accused. Typically, law enforcement and the judicial system offer protection and society may not impose harsh social stigma upon victims. In conflict zones, this may not be the situation—especially under the unstable conditions which give rise to episodes of mass sexual violence. Compounding this problem is the difficulty inherent in transporting victims from their country of origin to the International Criminal Court in The Hague.1
The term “mass sexual violence” can encompass a number of offenses within the purview of the International Criminal Court: rape as a war crime, sexual violence as a war crime, rape as a crime against humanity.2 While understanding that it might be somewhat of a simplification to analyze all of these offenses together, I have done so in order to discuss the more general topic of how prosecution might go forth and establish that mass sexual violence occurred at the behest of commanding officers, without using direct victim testimony.
One solution to the issue of a lack of direct victim testimony would be to use “pattern evidence” to support an accusation of a “widespread and systematic” episode of sexual violence against a civilian populace and to link that episode to the acts or omissions of the commanders of the units alleged to have participated.3 The International Criminal Court can move to establish and support the provision of such evidence under appropriate safeguards.
The term “pattern evidence” includes such evidence as third-party reports and/or expert testimony. For instance, the Prosecutor might supply reports indicating a sharp up-tick in rapes at a time and place in which combatants were active. Such reports would ideally come from medical and/or forensic experts who would then be called upon testify about the conclusions to be drawn from such reports and the methodology used to prepare these reports. The main point is that pattern evidence would tend to show that episodes of mass sexual violence occurred at a time and place which coincides with the activities of the defendant.
Certainly, pattern evidence raises issues addressed by the Anglo-American tradition of hearsay. In the Anglo-American tradition, courts favor a strong prophylactic rule (with numerous exceptions) barring admission of testimony by a witness who is not available for cross-examination.4 While those practicing under a civil law tradition might see such a rule as unnecessary where cases are decided by a trained judge, such a hearsay rule should be applied in cases where pattern evidence is sought to be admitted because judges cannot be called upon to fairly evaluate complex pattern evidence in the same way that they might evaluate other types of admissible hearsay. Pattern evidence may tend to be more complex and would often require specialist training to interpret properly.
Currently, as provided for in Article 69 of the Rome Statute, ICC admits hearsay evidence that the Court deems probative.5 This is in contrast to the American view that holds hearsay evidence to be unreliable.6 Although the ICC approach to hearsay evidence varies from that of the United States (among others), there is some support for the idea that admission of hearsay evidence is guided—at least in part—by the application of hearsay exceptions in the domestic context.7 This opening can help to guide our understanding of how pattern evidence may be used in mass sexual violence prosecutions.
II. Use of Pattern Evidence in Mass Sexual Violence Prosecutions
For a variety of reasons, it can be difficult to secure victim testimony in the wake of conflict. Sometimes there is an issue surrounding the physical safety of the victim, sometimes the victim is unavailable or otherwise indisposed towards making a voyage from his or her home country to the ICC in the Hague.8 If mass rape convictions were to require the testimony of victims—as would be the case in a domestic rape prosecution—then mass rape charges would be exceedingly difficult to sustain at the ICC.
In fact, mass rape prosecutions are different from simple rape in the domestic context because the ICC is not simply trying to determine if rapes occurred, but whether the rapes were part of a widespread and systematic attack committed with the knowledge or approval of commanders. Prosecuting these crimes requires that a connection be made between acts of sexual violence on the ground and the orders of commanding officers with troops in the area.9
Instead, the ICC can seek to sustain a conviction based upon pattern evidence, rather than direct victim testimony. Examples of pattern evidence would include: reports from domestic police agencies, reports from public health officials, statistical data from independent experts and any other relevant sociological data that would serve to shed light upon a given situation. This type of evidence would typically be provided by experts or others properly trained in gathering the right information. As such, expert witnesses could be called upon to confirm or reject the findings or methodology contained in any piece of pattern evidence.
The use of pattern evidence such as third-party reports from medical or forensic experts can be used to support charges of mass sexual violence where the alleged perpetrator was in charge of combatants who physically committed the acts.10 While pattern evidence would not be able to necessarily support individual sexual violence crimes, it could show that sexual violence was part of a “widespread and systematic” attack. Such a showing would tend to implicate commanding officers accused of acts or omissions which led to mass sexual violence.
This type of evidence would be admissible on the same rationale that allows for the admissibility of opinion testimony in prosecutions under the Anglo-American tradition. Although those parties offering opinion testimony were not present when the events took place, they are welcome to take the stand and give their view of events in light of expert knowledge. Here, such an expert could take the stand in a mass rape prosecution and offer his or her opinion about what proffered reports and documents tend to show.
Pattern evidence can include reports from third parties which provide statistical and other forensic information that tends to show that the crimes under investigation actually occurred. The ideal type of pattern evidence would be a set of reports made in the ordinary course of operations by a third party.
Use of pattern evidence has been used successfully in the past.11 The Office of the Prosecutor of the ICC used reports of rape to support its motion for an arrest warrant for those involved with the post-election violence in Kenya in 2007.12 In that case, statistics were gathered from the Kenya Police Crime Record and showed a sharp increase in the number of rapes during the period in question.13
III. Protections In The Use of Pattern Evidence in Mass Sexual Violence Prosecutions
In the ideal situation, the investigators or agents responsible for providing pattern evidence will be available to testify about the conclusions to be drawn from the evidence. They could be cross-examined and challenged on the sources of data used and their sources or methodology. However, we must consider situations in which reality strays from the ideal and determine what types of protections will provide the accused with a right to challenge pattern evidence being admitted into court.14
Expert testimony and the opportunity to cross-examine those responsible for preparing pattern evidence may not always be available. In this case, the ICC should provide greater protections against hearsay. Currently, the view on hearsay in international criminal proceedings is not well-established and in the ad hoc tribunals at the ICTY and the ICTR such evidence tends to be admissible as long as it can be shown to be probative. The idea behind such a liberal rule for admissibility is that since the evidence is being evaluated by judges, and not lay juries, its probative value and reliability might be more fairly determined.15
This protection—assuming that it does exist—would appear to be weaker in the case of pattern evidence. Pattern evidence would tend to be technical in nature, and without an accompanying expert, results and conclusions from the evidence could end up being misconstrued by the prosecution, the defense or the judge. One cannot assume that judges would be up to the task of fairly interpreting statistical analyses or collections of medical reports or epidemiological data submitted by counsel for any party.
Article 69 of the Rome Statute allows parties to submit documents or other written evidence as long as the evidence is not prejudicial to or inconsistent with the rights of the accused.16 Although it is not immediately clear what is meant by “inconsistent with the rights of the accused”, one approach might be to hold evidence to a set of principles analogous to the United States’ “business records exception” in which documents that would otherwise be hearsay are admissible under the hearsay rule if they are generated as part of regular business operations.
Applying the standards of the business records exception to pattern evidence would serve the necessary function of ensuring that the information provided to the Court is as unbiased as possible. For instance, if a credible international medical NGO or UN agency regularly creates reports dealing with instances of rape or proxy evidence of sexual violence (excess unplanned pregnancies, higher instances of sexually-transmitted diseases), then the Court should admit such evidence.17 Creating such a requirement would also tend to level the playing field between prosecution and defense, as such impartial evidence could be used to support or deflate the arguments of either side.
This comment has briefly addressed the unique problems facing prosecutors seeking to charge episodes of mass sexual violence committed in conflict zones and how those challenges might lead to real difficulties in convincing victims to come forward and testify against the alleged perpetrators. Pattern evidence could provide a basis for securing a conviction where commanders acted or failed to act when mass sexual violence occurred.
Pattern evidence is not a panacea. Its use requires that the rights of the accused are considered and that the safeguards provided by the hearsay rule are provided in cases where documentary evidence is provided to support a conviction. Ideally, we do want an expert to testify to the utility of the data and be able to be challenged on the data, methodology and conclusions to be drawn from the data.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
This problem may be ameliorated to some degree by the use of video links between the main courtroom and stations in the field. However, being seen to cooperate with the International Criminal Court in even this manner might expose victim-witnesses to danger. ↩
See, e.g., K. Alexa Koenig et al., Contextualizing Sexual Violence Committed During the War on Terror: A Historical Overview of International Accountability, 45 U.S.F.L. Rev. 911 (2011). The Rome Statute sets out a number of crimes that fit under the rubric of “mass sexual violence”—those classified as war crimes are set forth under Article 7, and similar provisions for classification as crimes against humanity are found under Article 8. 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, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute], arts. 7 and 8. ↩
Id. at 945 (pointing out that prosecutions for mass sexual violence tend to require that the acts were part of a “widespread and systematic” attack against a civilian population). ↩
The hearsay rule is an established institution in the Anglo-American legal tradition and is based largely upon the right to challenge one’s accuser in a court of law. Similarly, the Rome Statue provides a general “right to examine” evidence presented, see Rome Statute, art. 67(1)(e). ↩
Rome Statute, art. 69. ↩
See David Admire, The International Criminal Court Revisited: An American Perspective, 15 Tex. Rev. L. & Pol. 339, 353-54 (2011). ↩
See, e.g., William Schabas, An Introduction to the International Criminal Court, 312 (4th ed., 2011). ↩
Christine M. Chinkin, Due Process and Witness Anonymity, 91 Am. J. Int’l L. 75, 76 (1997). ↩
Kelly Dawn Askin, Gender Crimes Jurisprudence in the ICTR Positive Developments, 3 J. Int’l Crim. Just. 1007, 1011 (2005) (noting that in the Akayesu decision at the ICTR, Akayesu was held responsible for crimes committed in locations under his authority). Note also that the Rome Statute provides for prosecution via command responsibility in Article 28. ↩
Article 69 allows admission of written documentation which is not “inconsistent with the rights of the accused”. See Rome Statute, art. 69. See generally, Michele Caianiello, Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models, 36 N.C. J. Int’l L. & Com. Reg. 287, 301 (2011). ↩
Xabier Agirre Aranburu, Sexual Violence Beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases, 35 Law & Soc. Inquiry 855 (2010) (“Pattern evidence and analysis have been used successfully, mainly in the investigation of large-scale killings, destruction, and displacement; the use for sexual violence charges has been remarkably more limited.”). ↩
K. Alexa Koenig et al., Contextualizing Sexual Violence Committed During the War on Terror: A Historical Overview of International Accountability, 45 U.S.F.L. Rev. 911, 945 (2011). See also, id. at 866. ↩
Rome Statute, supra note 5, at art. 69. ↩
Fair trial demands consideration of the rights of the accused, especially in atrocity cases. In the international criminal law context, Article 6(3)(d) of the European Convention on Human Rights provides: “Everyone charged with a criminal offence has the following minimum rights:…(d) to examine or have cross-examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” See European Convention on Human Rights, Article 6(3)(d). ↩
There is resistance to this rule, however, on the grounds that judges are susceptible to the same types of biases and evidential fallibility that may beset a law juror. See Peter Murphy, No Free Lunch, No Free Proof the Indiscriminate Admission of Evidence Is A Serious Flaw in International Criminal Trials, 8 J. Int’l Crim. Just. 539, 540 (2010). ↩
Caianiello, supra note 10. ↩
Peter Murphy offers a similar prescription for the allowance of documentation provided by third-party expert witnesses. See Murphy, supra note 15, at 564. ↩
The Necessity of Direct Victim Testimony
In the midst of the controversy surrounding direct rape victim testimony at the International Criminal Court (“ICC”), there are strong, valid and thoughtful concerns regarding the ongoing stigmatization and harm that rape victims suffer. Although these concerns must be contemplated and evaluated, there are significant concerns about a defendant’s due process rights in sustaining a conviction with indirect evidence alone. In this comment, I argue that in certain cases, the court will be required to put victims on the stand and solicit direct evidence of the rape from the victim in order to validly sustain a conviction against the defendant.
Although an evaluative balancing of concerns about victim testimony with defendant’s due process rights must be conducted at the discretion of International Criminal Court (“ICC”) judges in cases of rapes as war crimes and crimes against humanity, the complete absence of direct victim testimony will in some cases greatly obstruct justice and the opportunity for a fair right to examine on the part of the defendant. Direct victim testimony is the best source of evidence to carry out the ICC’s truth-seeking function.1 In fact, in the following instances, direct victim testimony is required: (1) medical professionals, forensic test results or other medical data is unavailable; (2) objective factors fail to establish a coercive environment; (3) an absence of birth records and other witnesses prevent the prosecution from establishing a minors’ inability to consent; (4) an absence of pattern evidence, plan documents, or other data and statistics hinder establishing that a widespread or systematic attack occurred; and (5) an absence of documents or communications among perpetrators prevent the prosecution from establishing their knowledge or intent. Although victim anonymity has been granted by the ICC as a form of witness protection, complete removal of direct victim testimony to prove material elements of the rape crime would unduly prejudice defendants in these situations in their right to examine their accusers, the victims themselves.
Part I of this comment sets forth the concerns with victim testimony in prosecuting the crime of rape and arguments for eliminating the need for it. It also examines the importance behind presenting victim testimony at the ICC. Part II examines the elements of the rape crime and the arguments for victim testimony. Part III contemplates situations where direct victim testimony is required. Part IV examines the principal affirmative defense that defendants can claim and the vitality of victim testimony in these cases. Part V concludes.
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,
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
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:
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
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,
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.
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).
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). ↩
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). ↩
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). ↩
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). ↩
ICTY, Rules of Procedure and Evidence, Rule 79, Mar. 14, 1994, available online; Beltz, supra note 4, at 182. ↩
Rome Statute, supra note 3, art. 67(1)(e). ↩
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). ↩
Kweku Vanderpuye, Traditions in Conflict: The Internationalization of Confrontation, 43 Cornell Int’l L.J. 513, 514, 524 (2010). ↩
Beltz, supra note 4, at 200. ↩
Id. at 564. ↩
Wald, supra note 1, at 228-29. ↩
See Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06-1399, Decision on the Admissibility of Four Documents, ¶24, (June 13, 2008). ↩
Xabier, supra note 2, at 612. ↩
Vanderpuye, supra note 8, at 573. ↩
John Hagan, Richard Brooks, and Todd Haugh, Reasonable Grounds Evidence Involving Sexual Violence in Darfur, 35 Law & Soc. Inquiry 881, 884 (2010). ↩
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). ↩
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). ↩
Koenig, supra note 17, at 937. ↩
Xabier, supra note 2, at 618. ↩
Id. at 612. ↩
Id. at 609. ↩
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. ↩
Xabier, supra note 2, at 612. ↩
Id. at 612. ↩
Id. at 610. ↩
Id. at 612. ↩
Id. at 626. ↩
Hagan, supra note 16, at 892. ↩
Beltz, supra note 4, at 201. ↩
Hagan, supra note 16, at 889. ↩
Wald, supra note 1, at 219. ↩
Xabier, supra note 2, at 620. ↩
Hagan, supra note 16, at 897. ↩
Id. at 898. ↩
Id. at 899. ↩
Xabier, supra note 2, at 625. ↩
Elements of Crimes, supra note 18. ↩
Koenig, supra note 17, at 940. ↩
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). ↩
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). ↩
Beltz, supra note 4, at 198. ↩
Wald, supra note 1, at 230. ↩
Although direct victim testimony would be of immense importance to the prosecution in proving the case of mass rape in the ICC it is often very difficult if not impossible to convince victims of rape to testify in open court owing to the severe stigma attached to rape in most societies. However the ICC can still sustain a conviction on mass rape by exploring different forms of evidence other than direct testimony from the victims.
INTRODUCTION; Direct testimony from victims of rape has always been difficult to get both in national and international courts because of the immense stigma associated with rape. These stigma can lead to severe personal and cultural setbacks to the victims and their generations to come.
I strongly believe that the duty of the prosecution in a criminal trial is to tender sufficient evidence that meets the standard of proof (beyond reasonable doubts) in criminal trials. The prosecution in proving its case will have to tie the accused to the different elements of the crimes and this can be done convincingly without direct testimony from the victims thus making their presence in the trial not a condition sine qua non.
The crime of rape has been enshrined by the Rome Statute under the rubric of crimes against humanity and war crimes. My comments will be based on rape as a crime against humanity.
THE ELEMENTS OF RAPE AS A CRIME AGAINST HUMANITY
1) The perpetrators invaded the body of a person by conduct resulting in penetration however slight, of any part of the body of the victim or of the perpetrator with a sexual organ or of the anal or genital opening of the victim with any object or any other part of the body.
2) The invasion was committed by force or by threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such persons or other persons or by taking advantage or a coercive environment or the invasion was committed against a person incapable of giving genuine consent.
3)The conduct was committed as a part of a widespread or systematic attack directed against a civilian population.
4)The perpetrator knew that the conduct was part or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
The first two elements constitutes the ingredients necessary to prove that the offence of rape was actually committed. These ingredients which could be termed as the substantive requirements needed to prove the offence of rape is analogous with that of most domestic systems. That is the must be
B) Use of force
c) Absence of consent.
The third and fourth element would rather been looked upon as the two major elements that places the offence under the jurisdiction of the ICC.
Thus while the prosecution sufficiently link the accused to the first and second element to prove that the offence of rape did actually occur, they will have to link the accused to the third and fourth element to show that the ICC has the jurisdiction to entertain the matter.
SHOWING THAT THE VARIOUS ELEMENTS OF THE OFFENCE CAN BE PROVED WITHOUT DIRECT TESTIMONY FROM THE VICTIMS
A) INVADING THE BODY OF THE VICTIM; This can be proved by documentary evidence from medical doctors or other experts. It can also be proven by oral testimony from eye witnesses which I believe in the issue of mass rape are in a better position to identify the perpetrators than the victims. This can also be proven by confessional statements made by some perpetrators of the rape or some senior members of their organization.
B) THE USE OF FORCE OR THRAET OF FORCE; This particular element of the offence of rape like the former can also be proven without direct testimony from the victims. The use of force or threat of force can be proven by medical reports since the offence of rape usually leaves the victims with severe physical injuries.
The use of force or threat of force can also be proven by eyewitnesses.
It can also be proven by humanitarian or aid workers who come face to face with the victims shortly after the incidents or who have the opportunity of interviewing the victims in refugee camps.
It can also be proven by a confessional statement of one of the perpetrators or senior member of the organization.
C) WIDESPREAD OR SYSTEMATIC ATTACK; this third element is to prove that the ICC has the jurisdiction to entertain the matter. Thus if elements one and two are successfully proven then the offence of rape has been established. This also can be proved by medical reports, security reports and reports from humanitarian organizations. If over a particular period medical reports, security reports or humanitarian organizations reports can show that there has been an abnormal increase in rape attacks, this might satisfy the condition of "widespread”. If the said report can also show that those attacks were carried in a particular manner that is looking at age group targeted, racial, religious or ethnic group targeted or any means to show that a particular method was used in carrying out the rape attacks ,this will satisfy the "systematic" condition.
INTENTION OR MENS REA ; It is very possible to prove this head without the use of direct victim testimony. If the prosecution can successfully prove the first, second and third elements, it goes without saying that directly or indirectly the accused did have knowledge or intended that the conduct be part of a widespread or systematic attack against civilians. This can also be proved by expert reports, eyewitnesses and confessional statements.
CONCLUSION; In as much direct testimony from victims of mass rape can be very valuable to the prosecution in sustaining a conviction in a trial for rape before the ICC it is however not inevitable as the prosecution can use other forms of evidence and testimony like pattern evidence and hearsay evidence in proving it ,s case.
If there is evidence that can be used to identify the victim or victims of mass rape then those victims have a right to justice in the ICC if their domestic authorities have ignored or betrayed them regardless of whether they are to scared to do a testimony or not.
In NSW Australia if civilians commit mass rape then the police usually act however if the police mass rape civilians the police who gang rape their victims have their crimes covered up by their work mates who investigate them.
This system of corruption where police investigate police has been ongoing for decades in Australia which results in the victims being murdered and the witnesses identified during the investigations being murdered and all the authorities from the Attorney Generals, Police Minister etc down ignore these crimes.
In June 1993 a victim of the police gang raping her along with their drug dealer made her rape public to members of my group "Citizens Against Police and Government Corruption" all 4 members of the group were murdered with the victim murdered 11 days after I handed her hand written notes on to be investigated by the police.
This crime is still unresolved as is the attempts on my life and the murders of 6 of my witnesses over the last 19 years the last main witness burnt to death in her caravan claimed the life of her 11 yo daughter as well.
The main reason these crimes have been covered up so long is because our Government allows police to have legislation which allows them to ignore civilians rights under Article 2 (3) (a) (b) (c ) ICCPR as police can chose which cases they investigate or refuse to investigate using 141 of the Police Act to allow fellow police who gang rape and murder children to avoid being investigated or the investigation usually results in no charges and in a number of cases charges which no convictions are made in the local courts.
I have wrote over 1000 emails including victim testimonies etc to all Australian Government officials in a position of power to act but these officials fail to act and knowingly breach their oaths of office to protect corrupt police and corrupt government officials which results in the injustices against the victims of child rape and child murder at the instigation of police go unresolved even our ministers for justice ignore these crimes committed by police and ignored by the Ombudsman and police minister when the Premier asks for an investigation at the Prime Ministers request.
I am hoping that the ICC in its latest reply to me ref OTP-CR-227/12 will allow these matters unresolved by NSW police from 1993 to the present day involving 6 murders of witness who could expose police involved in mass rape can be heard in the ICC as 3 of the murders were committed from January 2004 involving some of the same people who murdered the girl in 1993 gang raped by the police who supplied their dealers drugs the children used.
If the ICC can hear this matter which comes under the Rome Statue including Article 7 (1) (h) involving retaliations against victims of police corruption then hopefully it will be able to have the NSW Government remove laws such as 141 of the police act to protect victims of mass police rape being denied justice by police who fail to properly investigate police involved in organized crime using 141 of the police act to protect their work mates as most corrupt cops have the protection of their work mates as their work mates usually benefit from the same drug networks through receiving money to tip off the dealers prior to police raids etc.
In the case I put to the ICC the victims did testimonies only because they believed the ICC would act in their best interest because when I did my first video interview with one of the victims who was 12 yo at the time of the offences committed against her by the drug dealer who murdered the girl raped by the police our main witness who passed the victims hand written notes onto the police was burnt to death the very next day, police monitoring my phone would have known the day I phoned the witness to do a testimony to replace the video evidence linking them to the crime which they had the courts cover up its destruction a 2 weeks prior. to stop the heads of police being brought to trial using this evidence I had wanted to use since September 2000.
The main issue with having to approach the ICC is the delay from 2007 has resulted in valuable evidence being stolen by the police and attempts made on my life and the victims lives and death threats made to me and the victims the last death threat to the victim was only last week after I faxed her signed statements to the ICC to go with her video testimonies done in 2006 over crimes I had tried to get justice for her from September 2000, this 12 year delay has seen 4 of my witness who could help these victims get justice murdered which makes prosecution of the offenders much harder when one of those murdered was the principle offender 2 months after I used one of the victims as a witness to bring him and the heads of the police to trial.
It would be good if the ICC could have legislation which allows them to take over mass rape cases as soon as they can see evidence Governments are ignoring these victims Rights to justice this way the courts would not be prolonging the victims suffering by subjecting them to death threats, intimidation, stealing and destruction of hard evidence and even murder.
The ICC has the names of all the victims mentioned in this comment and I’m awaiting their reply.
Professor MacKinnon raises an interesting point when she argues that by being sensitive to cultural stigmas attached to victims of rape and offering an alternative to direct victim testimony, one actually perpetuates those very stigmas. While this should be a critical consideration, it seems that Professor MacKinnon is positing a view that operates under an assumption of how gender bias and rape stigma should be understood, and not how they are actually understood today. Certain procedural protections, like rape shield laws, are instituted to protect rape victims. While they may similarly perpetuate cultural and gendered stigmas, there are certainly cases in which rape shield laws may be crucial to encourage victims to report sexual assaults and to remove gender bias in the courtroom. These protections are necessary because of gender and victim biases as they exist today - biases that are often much more severe in developing nations that experience the horrors of mass rape. At the least, it seems possible that by offering an alternative where a procedural protection may prevent certain rape victims from re-traumatizing themselves, one is not necessarily complicit in reinforcing the very conditions that created that trauma.
Professor MacKinnon, you write that the Trial Chamber's decision on witness proofing "cuts survivors off from the support of lawyers." Without this support and in a foreign environment, you continue, these traumatized victims will be poor witnesses. My question is: Is this, or does this have to be, the case? The ICC's Victims and Witnesses Unit must already provide psychological support to these victims, and it seems that they may also be able to help them navigate this foreign legal landscape.
The Unit must, per Article 43 of the Rome Statute, provide "counselling and other appropriate assistance for witnesses . . . ." It further mandates that the Unit "include staff with expertise in trauma, including trauma related to crimes of sexual violence." So far, the ICC's interpretation of these provisions, at least according to their website (http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Protection/Victi...), appears to be that the Unit should provide "psycho-social support" and "information and debriefings before and after testimony," among other things. And it provides these "support services [to] promote gender-sensitive measures to facilitate the testimony of victims of sexual violence."
Clearly, I think, the Unit can—and maybe already does—aid these victims with their psychological issues. And it also seems that the Unit can aid them with navigating the foreign legal landscape. We arguably can interpret "appropriate assistance" as being any assistance necessary to facilitate victims' testimony, including legal assistance. Perhaps it even includes a version of witness proofing. In other tribunals, namely the SCSL and maybe the ICTR, it does. The former already provides it. According to this report by the SCSL's Witness and Victims Section (http://www.sc-sl.org/LinkClick.aspx?fileticket=0LBKqqzcrMc%3D&tabid=176), its victims unit "[t]horough[ly] prepar[es victims] for testifying" and the victims, in fact, "are emotionally prepared for [it]."
I think Mr. Terzian correctly focuses on one of the two issues that to me seem to be the areas which should be discussed. It seems to me that the expert commentators largely agree that while the ICC can sustain a conviction for the underlying crime of mass rape without testimony from victims, ICC prosecutors should try to present survivor testimony whenever possible.
This issue is more related ICC procedural issues, particularly "witness-proofing," as highlighted by Professor MacKinnon, and the issue of abusive self-represented defendants, as described by Professor Wedgwood, both of which seem to be the root of the impetus towards ICC mass rape prosecutions without survivor testimony, or with reduced survivor testimony. Professors MacKinnon and Wedgwood make persuasive arguments against both practices. Perhaps someone can expand upon the policy reasons underlying "witness-proofing" and allowing self-represented defendants to conduct humiliating and/or abusive cross-examinations of witnesses and victims?
If the ICC is to allow a pro se party to defend herself, then this party must not be prevented from conducting cross-examination. For as we all know, cross-examination is a critical part of any trial -- much as the United States Supreme Court Crawford decision recognized. In cases involving any type of brutality, particularly rape, that poses a significant challenge to gaining participation of the victim and other witnesses. Cross-examination is tough enough without the alleged perpetrator getting up close and personal. Further, while many witnesses/ victims have their identities sealed from the public, they are likely reluctant to trust any security measures when the alleged perpetrator can ask them questions.
Ultimately, though, a full defense involves cross-examination, and a pro se defendant cannot have this right rescinded. The ICC judges have the inherent authority to ensure that the questions rest within the rules of evidence, but that likely still allows for many uncomfortable experiences. Perhaps state parties may want to remove the right to represent oneself in the Rome Treaty, although that seems unlikely. Otherwise, that leaves judges to address these important concerns by keeping a pro se defendant's questions from roaming off the reservation.
In using victims as witnesses to prove rape, the ICC obviously faces ethical issues of making victims relive their trauma or of putting victims in danger of stigma. However, even apart from these issues, witness testimony may be a suboptimal way of proving rape. Numerous studies in the US have indicated the fallibility of eyewitness testimony. Likewise, victims of mass rape may have distorted memories of the incident, which likely will have occurred years before the ICC tries the case. In addition, one cannot assume that eyewitnesses to mass rape will faithfully tell the tale. They may be reluctant to expose others - or their community - to stigma, or may be overly concerned with convicting the perpetrator. In other cultures, telling the truth under oath may not carry the same obligations - or exposure to penalties - that it does in the United States. Alternatively, they may not have a reliable memory of the event years after it occurred.
Thus, whenever the ICC can prove rape without victim or eyewitness testimony, it should seek to do so. Such evidence may be more credible and is fraught with less moral, evidentiary, and due process issues.
Perpetrators of mass rape must be brought to justice. Sexual violence, human trafficking and mass rape are regularly used as weapons in war. In some cases, it will be crucial for the prosecution to use evidence other than direct testimony of the victims. However, the use of such evidence should not deny victims the opportunity to be heard in court. Instead, such evidence should be considered in combination with other relevant factors and evidence. Professor MacKinnon raises some important points in this regard. Victims' accounts have a special place in court. The use of alternative forms of evidence should not result in victimless trials. No doubt, this would further entrench long-standing cross-cultural institutionalized biases that surround rape. Rather, the ICC should focus on further strengthening its support structures to assist women to participate and give testimony in court.
Rape is a form of coercion, no question, and a key to recovery is re-empowering survivors. On the one hand, giving survivors the opportunity to testify helps them to process their stories and may act to validate their experience, as judge and attorneys will listen and, as a matter of professionalism, refrain from victim-blaming. Given that most if not all cultures stigmatize rape to some extent or another, as it may be hard to find that sort of validation within their own societies.
However, compelling survivors to testify in order for them to a) make their case and b) receive a form of redress reduces their agency still further, which would be traumatizing even without introducing the variable of cross-examination into the mix. I find it unfair and unjust to remove those survivors unable or unwilling to testify before the court from the adjudication process, potentially resulting in their attackers' exoneration despite the existence of alternative forms of evidence (affidavits, statistics, social science research) that would validate their case.
The goal of the ICC is not only to punish those who violate human rights but also to make whole those whose rights have been violated. Forcing the survivors of mass rape to testify would hinder the latter.
The ICC only prosecutes high level perpetrators. Usually, these are "leadership" crimes; the defendant is accused of instigating mass rape, not of committing it himself. The actual rapist won't be sitting in the dock when the victim testifies about what happened to her.
The crime of rape and the crime of mass rape are very different. In an ICC prosecution of mass rape, the victim's direct attacker won't be on trial. And the type of evidence that needs to be elicited for mass rape is far different than for a domestic rape prosecution.
In a domestic rape case, lack of consent and the identity of the attacker are the key questions. In a mass rape case, the fact of the rapes and whether they were instigated by the defendant are the key questions. The defendant isn't accused of committing the rapes himself, but rather of ordering others to do so. In a mass rape case, it is unlikely that the victim will be able to establish that the defendant ordered the crime. Her actual attacker won't be on trial and will probably go free. The victim will not see her rapist receive punishment from the ICC. Victim "closure" in this situation seems dubious.
The idea that we owe it to the victims to let them testify in court comes from our experience in domestic rape cases. But mass rape is a different kind of crime; we need to think of both evidence and witnesses in a different way.