If nothing else, the OTP should remain aware that crimes like mass rape are not the only sexual and gender-based crimes that come under the Court’s jurisdiction—in choosing which crimes to prosecute, the Office would do well to attend to the differing likelihoods that first responders addressing differing crimes will cooperate with their efforts. Rather than first identifying particular crimes and then looking for cooperative organizations with which to partner, OTP should begin by identifying potentially cooperative partner organizations, and then working with them to identify and collect evidence of particular crimes.

II. Sexual and Gender-Based Crimes Under the Rome Statute

While paradigm cases may come to mind all too easily, it’s not entirely obvious what counts as the kind of sexual and gender-based crime that would fall under the Court’s jurisdiction. The Draft Policy directs its audience to various clauses of the Rome Statute, at least some of which are clear and explicit. And yet a systematic categorization of sexual and gender-based crimes (SGBC) is more or less absent from the Draft Policy itself. Such clarity has the potential to ease communications between OTP and those on the ground, and to remind OTP of the vast diversity of the crimes in question. When looking to identify partner organizations that might assist with the provision of evidence, such a reminder may well be useful.

In sum, the Draft Policy seems to distinguish SGBC themselves, from crimes that can have sexual or gender-based elements.4 SGBC themselves are defined “[i]n accordance with the Statute, [as] those listed under article 7(1)(g), 8(2)(b)(xxii) and 8(2)(e)(vi) and elaborated upon in the Elements in relation to ‘sexual violence.’”5 And crimes that can have sexual or gender-based elements include things like “mutilation and outrages upon personal dignity under articles 8(2)(b)(x), 8(2)(b)(xxi), 8(2)(c)(i), 8(2)(c)(ii).”6 Examining the relevant articles of the Rome Statute,7 the following categorization of SGBC emerges from the Draft Policy:

Table 1. Categorization of SGBC from Draft Policy

SGBC	Crimes Against Humanity	7(1)(g)	rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or other sexual violence of comparable gravity
	War Crimes	8(2)(b)(xxii); 8(2)(e)(vi)	sexual violence also constituting a grave breach of the Geneva Conventions, or a serious violation of article 3 common to the four Geneva Conventions
Crimes with Possible SGB Elements	War Crimes	8(2)(b)(x)	subjecting persons…to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons
		8(2)(b)(xxi); 8(2)(c)(ii)	outrages upon personal dignity, in particular humiliating and degrading treatment, including when committed against persons taking no active part in the hostilities
		8(2)(c)(i)	when committed against persons taking no active part in the hostilities… [v]iolence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture

The Draft Policy also clarifies that, in addition to the traditional actus reus and mens rea components, the elements that will have to be proved to show that an SGBC has occurred include that the conduct in question “was of a gravity comparable to the other offences,” presumably meaning those that are antecedently understood to be crimes against humanity and war crimes.8

The categorization above should make clear just how varied and heterogeneous the crimes that the Draft Policy makes a priority truly are. Mass rapes engaged in during war-time, though no doubt prevalent and particularly grievous, are certainly not the only sexual or gender-based crime that the Court would have jurisdiction to prosecute. Thus, in seeking out potentially cooperative organizations with which to partner, OTP should keep this variety in mind.

III. Human Trafficking, Sexual Slavery, and First Responders

Among the NGOs it would be wise to take a look at in addition to those that deal with mass rapes during times of war are NGOs addressing sexual slavery, forced prostitution, and human trafficking. Since these crimes are categorized as crimes against humanity rather than war crimes, they will fall under the Court’s jurisdiction even where they are engaged in outside of a context of war, so long as they are sufficiently systematic and or grievous as to satisfy the gravity threshold.9 And first responders and NGOs centrally concerned with crimes of sexual slavery and human trafficking may be particularly willing to cooperate with OTP investigations.

Successful prosecution is often explicitly listed among the aims of those organizations that deal centrally with trafficking. For example, The Asia Foundation, an NGO working to advance mutual interests in the United States and the Asia-Pacific Region, has begun to develop and execute a strategy for combatting human trafficking in Thailand “designed to protect the rights of victims, to provide them with the services they need, and [to] secure the conviction of traffickers.” (emphasis added.)10 And as another example, The Visayan Forum, a Philippine-based NGO working to end modern-day slavery, explains in its handbook entitled Lessons Learned from the Successful Prosecution of Human Trafficking Cases in the Philippines:

This Handbook is intended for those who play an indispensable role in the prosecution of trafficking cases in the Philippines, namely, law enforcers, investigators, and prosecutors. It is also addressed to non-government organizations that support government agencies in investigating and prosecuting trafficking cases, and providing victim assistance. It is hoped that by learning from the practices and strategies used in successful cases, other cases may benefit and be more likely to result in convictions.11

The bare fact that anti-trafficking NGOs explicitly aim at prosecuting perpetrators suggests quite strongly that they are generally willing to cooperate with legal investigations—at least insofar as they can do so without compromising their other aims—even absent any actual history of having done so.

But furthermore, such organizations have at least some demonstrated history of aiding prosecutions for human trafficking and sex trafficking, albeit often domestic ones. The Asia Foundation, for example, describes having worked with at least twenty-five victims of trafficking in the northern parts of Thailand to testify against perpetrators at trial.12 By coordinating the efforts of doctors, interpreters, social workers, and eventually lawyers, the Foundation has had some success enabling victims to provide much-needed testimony.13 And as still another example, lawyers from a local office of International Justice Mission, a U.S.-based NGO combatting trafficking, are reported to have assisted with successful trafficking prosecutions in the Philippines.14

These examples make clear that at least some anti-trafficking organizations not only conceive of their project as including the eventual prosecution of perpetrators, but also have a demonstrated history of cooperating with legal authorities in such prosecutions. Of course it doesn’t directly follow that such organizations will be willing or able to assist the OTP in particular with its investigations—it may turn out that these NGOs’ willingness to cooperate is somehow contingent on the domestic nature of the prosecutions with which they’ve assisted, or that the evidence they’re able to provide will not be of a nature that the OTP can use. But at a minimum, the examples suggest that there are promising leads to pursue. If cooperative, on-the-ground organizations that are willing and able to provide evidence is what the OTP thinks it needs in order to prosecute sexual and gender-based crimes, then looking to establish partnerships with anti-trafficking NGOs on the ground in nations where such crimes are occurring in a systemic and grievous fashion would be a sensible place to start.

IV. Conclusion

This Comment has argued that the OTP may have its strategy in prosecuting sexual and gender-based crimes backward. OTP must of course follow the evidence it has available to it in choosing which cases to pursue. But I’ve suggested that in gathering such evidence, the Office would do well to keep its partnerships in mind from the very beginning. Rather than seeking out cooperative organizations on the ground only after hearing about some particular crime, the Office might instead partner first with organizations that are particularly likely to be helpful in eventual prosecutions, and prioritize those crimes that such organizations can reliably provide evidence of.

Further, OTP should keep in mind as it engages in this search for NGO partners that there are very many distinct SGBC that come under the Court’s jurisdiction. In light of this fact, OTP should seek out partnerships with those organizations whose missions render them likely to be cooperative. This Comment has suggested that NGOs working to combat human trafficking and sexual slavery seem to be promising candidates.15 Because anti-trafficking organizations often see their mission as crucially involving the prosecution of perpetrators, and because they have demonstrated histories of assisting with such prosecutions, OTP may well be able to establish fruitful partnerships with them. In so doing, the Office may thus begin to make good on their Draft Policy’s commitment to ending impunity for the SGBC that have too long gone unaddressed at the international level.

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

1. 1.

   Office of the Prosecutor, International Criminal Court, Draft Policy on Sexual and Gender Based Crimes (2014), available online, archived [hereinafter Draft Policy]. ↩

2. 2.

   See, e.g., Thobeka Mayekiso, A Glimmer of Hope for Victims of Sexual and Gender-Based Crimes in Africa, Relief Web (Apr. 14, 2014), available online; Aisling Swaine, Addressing Gender Equality and Gender-based Crimes at the International Criminal Court, global.gender.current (Mar. 5, 2014), available online; REDRESS, Comments on the OTP Draft Policy Paper on Sexual and Gender Based Crimes (Feb. 2014), available online; Refugee Law Project, Comments on the ICC Draft Policy Paper on Sexual and Gender Based Crimes (Feb. 23, 2014), available online. ↩

3. 3.

   See Draft Policy, supra note 1, at 3.

   (“In addition to general challenges to investigations by the Office, such as security issues related to investigations in situations of on-going conflict and a lack of cooperation, the investigation of sexual and gender based crimes presents its own specific challenges.”) ↩

4. 4.

   Draft Policy, supra note 1, at 8. ↩

5. 5.

   Id. ↩

6. 6.

   Id. at 8-9. ↩

7. 7.

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

8. 8.

   Id. at note 9. ↩

9. 9.

   See generally Jane Kim, Prosecuting Human Trafficking as a Crime Against Humanity Under the Rome Statute, Colum. C. for Gender & Sexuality L. (Mar. 6, 2011), available online. ↩

10. 10.

    The Asia Foundation, Combating Trafficking of Women and Children in Thailand (May 2005) [hereinafter Combating Trafficking], available online. ↩

11. 11.

    Visayan Forum Foundation, Lessons Learned from the Successful Prosecution of Human Trafficking Cases in the Philippines, p3 (2012) available online. ↩

12. 12.

    Combating Trafficking, supra note 10, at 2. ↩

13. 13.

    Id. ↩

14. 14.

    New Conviction Boosts Fight Against Human Trafficking, IRIN, Dec. 2, 2008, available online. ↩

15. 15.

    HumanTrafficking.org has a particularly thorough listing of such organizations, organized by country, although it is not clear that it is still being updated. It lists prominent NGOs in several nations that are signatories to the Rome Statute, including Australia, Cambodia, Japan, Mongolia, New Zealand, and the Philippines. See humantrafficking.org: A web Resource for Combating Human Trafficking, available online (last visited Apr. 5, 2016). ↩