In fact, the traumatic nature of sexual and gender based crimes itself leads to several problems for interviewers. To begin with, survivors of trauma may experience, as “memory problems which can affect credibility in the courtroom occur with PTSD, specifically with ‘dissociation’…they simply do not remember the details.”7 This can be compounded by the fact that investigations of international crimes often take on a historic aspect. For example, the the Bemba trial took place several years after the event,8 leading to concerns regarding witness reliability. Furthermore, even when the subject is able to remember the details of the event, the interviewer runs the risk of retraumatization of the victims, and “just recounting the story [may be] enough to trigger uncontrollable tears, panic attacks, or flashbacks of the event,”9 not only causing them great personal suffering, but potentially making them unwilling or unable to provide further reliable testimony.

Even when a victim or witness is able to cooperate with the investigation of the OTP, the investigators must then grapple with the significant risks imposed by the community. First, the stigma associated with sexual and gender based crimes can often be severe, and were an individuals status as a victim made public, they may then be subjected to “shame, guilt, and blame”10 by the community. the physical safety of the witnesses may even be an issue. This is demonstrated by the situation regarding the ICC’s investigation in Kenya, where there is substantial domestic opposition to the investigation, without preserving the anonymity of the witness it may be “difficult to assure others that they are their family members will be safe…it’s not just the nuclear family: there are aunts, uncles, cousins.”11 Without considering all of these factors the OTP will be unable to conduct useful interviews in the absence of aid from domestic and international first responders.

B. Solutions

Although substantial, the challenges posed by interviewing victims and witnesses of sexual and gender based crimes can be overcome by the OTP, even in the absence of assistance from other first responders. As a preliminary step, the OTP should strive to achieve gender balance, or perhaps even institute teams with a majority of women. As subjects are generally more comfortable interviewing with someone of the same sex, this will facilitate comfort in the interview process and will likely result in more openness and full disclosure during the interview.

Additionally, the OTP must institute standard investigations and guidelines training for its investigators. This will alleviate several of the difficulties associated with interviewing victims of sexual and gender based violence. First, it will alert interviewers of the risk of retraumatization and give them the techniques to minimize this risk. Secondly, it will enable interviewers to most efficiently conduct interviews, both ensuring that the most useful information is achieved while also minimizing the necessary contacts between the subject and the investigator, helping to preserve their anonymity, as “multiple interview processes [can] expose victims/witnesses to the risk of re-traumatization and can potentially create issues with the consistency of their testimony.”12

Guidance on the structure of this standard investigation protocol can be gained from a survey of the various specialized sex crimes investigation units in the United States,13 as well as in the recommendations set out by the International Criminal Tribunal for Rwanda.14 By implementing these techniques, the OTP will be able to conduct interviews in a safe, efficient, and ethical manner without the aid of other first responders.

III. Physical Evidence Challenges

A. Challenges

Even when interviews are able to be effectively conducted without the aid of other domestic and international first responders, the OTP will still have to grapple with the challenges of collecting forensic evidence. Forensic evidence can be especially difficult to collect and analyze in cases of sexual and gender based crimes, as opposed to other crimes under the jurisdiction of the ICC. Unlike the mass killings that characterized the 1994 Genocide in Rwanda or events such as the Srebrenica Massacre, sexual assault does not generally leave behind a body with identifiable wounds that enable the crime to be pieced together. Instead, if any DNA evidence such as semen is left by the crime, its usefulness decreases sharply after about seventy-two hours.15 These problems are compounded by the fact that international investigations and trials often have a historic aspect as stated above, and may take place months or years after the events originally occurred.

Even in a case where viable DNA evidence is able to be collected, its analysis still requires the proper equipment and properly trained personnel. The collection and analysis of forensic evidence can be very expensive, as “it requires an equipped laboratory, trained technicians, and constant supply and maintenance. Where a forensic laboratory is underfunded or lacks properly trained personnel, forensic analysis capacity may be minimal or unreliable.”16 As many of these atrocities tend to take place in remote regions of very poor nations, this is unlikely.17

Finally, the stigma associated with crimes of sexual violence may also impact the availability of forensic evidence, as a victim may be unwilling to file a police report knowing their condition as victimized may be made public. Furthermore, victims may be unwilling to submit to further police examination after their medical examination has been concluded.

B. Solutions

Because many of the challenges of collecting forensic evidence in cases of sexual and gender based crimes stem from the stigma associated with sexual violence and the limited economic resources of the regions violations predominantly occur in, the ICC must continue its capacity-building efforts across its jurisdiction if it hopes to be able to effectively conduct investigations without the aid of other first responders. One way in which this could be implemented would be to encourage the streamlining of domestic medical and legal examination process. Whereas in many jurisdictions the medical and legal examinations are completely separate,18 by combining these procedures into a single unified examination victims would be less likely to not follow up a medical examination with a legal one, while reducing their overall number of contacts with an investigative body. This would have the double effect of helping to preserve their anonymity and preventing the stigma associated with sexual victimization.

This would also make it more likely that forensic DNA evidence would be collected in the first place. While the OTP may not be able to access these domestic records in the face of total opposition to the ICC by domestic agencies, it would still increase the likelihood that the evidence would be collected in the first place, allowing for it to be collected without the additional aid of other NGOs.

Another step would be to speed up the process of initiating OTP investigations. By being more proactive in initiating investigations the OTP will increase the likelihood of obtaining forensic evidence first-hand, and would not be reliant on obtaining records of domestic agencies of past crimes.

However, if the OTP were to face total opposition from domestic agencies and NGOs in the collection of forensic evidence, it may be that the only viable solution would be to increase the scope evidence relied on in a prosecution. As observed in the Bemba trial, “many patients say ‘the physical scars heal but the emotional scars stay with me.’”19 By focusing instead on pattern evidence and psychological evidence20 obtained from the interviews following the procedures outlined above, the OTP will be less dependent on forensic evidence and will not have to navigate the challenges associating with collecting it. therefore, the OTP should train its prosecutors and investigators to look for this type of evidence when the collection of forensic evidence is not possible. Following these steps, the OTP will not be dependent upon the efforts of domestic agencies, NGOs and other first responders to collect forensic evidence to move forward with their investigations.

IV. Conclusion

Given the challenges of conducting a successful investigation of sexual and gender based crimes in the face of resistance or hostility from domestic agencies and NGOs, the Office of the Prosecutor is wise to attempt to foster cooperation with these entities. However, given the competing agendas of these bodies, the OTP must also recognize that it is likely that in many instances it will be unable to secure this cooperation. Therefore, in order to effectively collect interview and forensic evidence, the OTP must prepare its investigators to overcome these challenges.

When seeking to interview victims and witnesses, the OTP must employ a carefully crafted strategy that accommodates for the traumatic nature of sexual violence as well as the risk of stigma associated with the crime, and the risk of repercussions for cooperating with the OTP in general. Similarly, the challenges of collecting forensic evidence can be overcome through a proactive approach that encourages the streamlining of medical and legal examinations, while simultaneously training its investigators to rely on other, more readily available evidence. Only by cultivating techniques such as those discussed above will the Office of the Prosecutor be able to overcome the challenges of investigating sexual and gender based crimes without the aid of other international or domestic first responders.

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) at ¶ 42, available online, archived. ↩

2. 2.

   Id. at ¶ 98. ↩

3. 3.

   Id. ↩

4. 4.

   Kim Thuy Seelinger, Helene Silverberg, & Robin Mejia, The Investigation and Prosecution of Sexual Violence: A Working Paper of the Sexual Violence & Accountability Project UC Berkeley HRC (May 2011) at 19, available online, archive. ↩

5. 5.

   Wairagala Wakabi, Expert Describes Trauma Among Central African Rape Victims, Int’l Just. Monitor (Nov. 29, 2014), available online. ↩

6. 6.

   Office of the Prosecutor, International Criminal Tribunal for Rwanda, Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-Conflict Regions: Lessons Learned from the Office of the Prosecutor for the International Criminal Tribunal for Rwanda (Jan. 30, 2014) [hereinafter ICTR 2014 Best Practices Manual], available online, archived. ↩

7. 7.

   Stuart L. Lustig, Symptoms of Trauma Among Political Asylum Applicants: Don’t Be Fooled, 31 Hastings Int’l & Comp. L. Rev. 725 (2008), Lexis/Nexis paywall. ↩

8. 8.

   Timeline: Jean-Pierre Bembe Gombo at the International Criminal Court, Int’l Just. Monitor, available online (last visited Apr. 8, 2016). ↩

9. 9.

   Lustig, supra note 7. ↩

10. 10.

    Wakabi, supra note 5. ↩

11. 11.

    Helen Vesperini, Anger After Kenyan ICC Trial Witness ‘Outed’ Online, Fox News, Sep. 18, 2013, available online. ↩

12. 12.

    REDRESS, Comments on the OTP Draft Policy Paper on Sexual and Gender Based Crimes (Feb. 2014), available online. ↩

13. 13.

    Sex Crimes, San Diego Police Dept., available online (last visited Apr. 8, 2016). ↩

14. 14.

    ICTR 2014 Best Practices Manual, supra note 6, at 38. ↩

15. 15.

    The Importance of DNA in a Sexual Assault Case, RAINN, available online (last visited Apr. 8, 2016). ↩

16. 16.

    Seelinger et al., supra note 4, at 31. ↩

17. 17.

    See generally Human Rights Watch, Testing Justice: Rape Kit Backlog in Los Angeles City & County (Mar. 31, 2009), available online. ↩

18. 18.

    Seelinger et al., supra note 4, at 33. ↩

19. 19.

    Wakabi, supra note 5. ↩

20. 20.

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