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Comment on the Sexual and Gender-Based Violence Question: “How can the ICC OTP secure better cooperation from first responders and those working on the ground with victims and survivors to assist in the investigation and prosecution of Sexual and Gender-based Violence (SGBV)?”

Implications of the Challenge in Securing First Responder Evidence in Sexual and Gender Based Crimes: Significance of Command Liability Theory in Prosecutions by International Courts

I. Introduction

The ICC’s Office of the Prosecutor (OTP) faces an important challenge with regard to its ability to effectively prosecute Sexual and Gender Based Crimes (SGBC): the achievement of efficient cooperation with first responders and those working on the ground with victims and survivors of SGBC. This cooperation is crucial to obtain evidence that would serve to convict those responsible for the commission of SGBC. In any given situation or case, the availability and frequency of individuals or organizations that can provide relevant and reliable evidence with regard to SGBC is limited. Whether due to a desire to preserve independence, security concerns, policy and organizational constraints, or other issues, there is often a reluctance of first responders to cooperate with the OTP, which results in the OTP’s constrained ability to secure evidence in its prosecution of SGBC. The fact that such cooperation is less an issue in the OTP’s prosecution of non-SGBC suggests that the unique nature of SGBC contributes to the limitations that hinder the OTP in its prosecution of these crimes.

The fact that there is a lack of cooperation required to furnish crucial evidence in the first place sheds light on the importance of securing alternative modes of liability that may facilitate convictions of those who commit SGBC. Pattern evidence, collected over the long term, includes the “aggregate of multiple incidents that share common features related to the victims, the perpetrators, and the modus operandi,” through expert testimony, statistics, crime mapping, and other forms.1 Struggle to secure physical evidence that would corroborate individual instances of criminal perpetration underscores the importance of utilizing pattern and additional types of evidence to convict perpetrators of SGBC on the basis of the commander liability theory. Under the commander liability doctrine, a superior can be held responsible for the acts of his or her subordinates where:

  1. a superior–subordinate relationship exists,
  2. the superior knew or had reason to know that the criminal act was about to be or had been committed, and
  3. the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the physical perpetrator thereof.2

Further evaluation of the collection of evidence and its utilization for pursuing conviction under the commander liability theory with regard to both SGBC and Non-SGBC may assist in determining why obtaining relevant evidence and effectuating a subsequent prosecution and conviction remains particularly difficult for SGBC when compared to non-SGBC. This comment will evaluate the use of evidence to convict based on the command liability theory in the prosecution of SGBC and non-SGBC. Although this comment evaluates only a limited number of cases and therefore cannot establish an absolutely conclusory theory as to how certain elements of SGBC contribute to divergent applications of evidence and utilization of the command liability theory in prosecutions, the findings do suggest that successful prosecution of an SGBC appears to require higher evidentiary standards and possesses substantially less availability to employ circumstantial evidence than a non-SGBC would. This comparison underscores the necessity that the ICC as an institution work to facilitate cooperation with first responders of SGBC such that evidence may be efficiently collected and implemented in prosecuting the commission of these crimes.

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II. Comparing Command Liability Theory in SGBC and Non-SGBC

The prosecution of sexual and gender based crimes through international tribunals has developed at a slower rate than the prosecution of non-SGBC. Although the ICTR Trial Chamber in Prosecutor v. Akayesu adopted a broad definition of sexual violence that provided important watershed assistance towards the prosecution of sexual violence, prosecutors have encountered substantial challenges in procuring convictions of high-level commanders, largely for lack of evidence that provides direct links to the accused.3 Subsequently, there are a limited number of SGBC cases from which one can analyze the extent to which first response, pattern, and other types of evidence may be utilized to achieve successful convictions of mass rape through use of the command liability doctrine.

Although the Čelebići Trial Court Judgment at the ICTY in November 1998 did not entail charges solely related to sexual and gender based crimes, it did set forth an important precedent regarding the use of the command liability theory to prosecute crimes of sexual violence. Three commanders were charged with command responsibility for grave breaches with cruel treatment based on abusive sexual treatment of their subordinates.4 With respect to application of command responsibility liability, the Trial Chamber stated that knowledge [of the act committed] could in fact be inferred in several ways, including:

[the] number, type, or scope of the illegal acts; the length of time; the logistics, number, type, or rank of troops or officers involved; the geographical location or widespread occurrence of the illegal acts; the location of the commander, and the modus operandi of similar acts[.]5

The ICTY Appeals Chamber Judgment in 2001 upheld the findings of the Čelebići Trial Chamber Judgment, and demonstrated that command responsibility may be employed to hold military and civilian leaders accountable for crimes of sexual violence perpetrated by subordinates that the superior “negligently failed to prevent or punish”.6 While this case does set an important precedent for the availability of the command responsibility doctrine to prosecute crimes of sexual violence, its authority remains limited to the tribunal within which it was prosecuted. The necessity for cooperation of first responders with ICC prosecutors is highlighted when one assesses the limited success of command responsibility doctrine in general as it was later implemented in the ICTR, and its even more limited margin for successful convictions when used in prosecuting sexual and gender based crimes.

While fewer instances of sexual violence were prosecuted as a crime against humanity at the ICTY, attempts to prosecute sexual and gender based crimes were more pronounced at the ICTR, where the UN Human Rights Commission estimated that between 250,000 and 500,000 rapes occurred in total; “Though low-level militia members and soldiers generally perpetrated these crimes, military and political leaders instigated, encouraged, oversaw … acts of sexual violence… and should be held criminally responsible”.7 However, the numerous amounts of acquittals post–Akayesu reflects the consistent challenge prosecutors face in securing command responsibility for these crimes. The disappointing frequency of acquittals for prosecution of SGBC within the ICTR suggests that there may exist higher evidentiary standards at an institutional level for the command responsibility doctrine as it pertains to SGBC, as opposed to the more lax standards afforded to the command responsibility doctrine for non SGBC.

Command responsibility liability recognizes that an order, even if implicit, may be inferred from circumstantial evidence, including omissions from accused. However, some scholars suggest that tribunals are more reluctant to allow for such inferences and circumstantial evidence when applied to command responsibility liability for SGBC.8 For example, under command responsibility for rape as a crime against humanity, the ICTR Musema and Kajelijeli Courts required “direct orders, physical presence of the accused at the crime scene,” and evidence of an actual rape occurring for conviction.9 Additionally, comparison between the ICTY Galić case and the ICTR Kajelijeli case further demonstrates the divergence in application of the command responsibility theory and how courts may be less accommodating towards circumstantial evidence in the prosecution of SGBC and more lenient of circumstantial evidence in the prosecution of non-SGBC.

In the Galić case, the ICTY utilized evidence that demonstrated killings of civilians were executed in a widespread manner over a longer period of time by soldiers who were under the control of the accused to infer that the defendant commander had in fact ordered his troops to kill civilians.10 Rather than require direct physical evidence of an order, the ICTY court allowed prosecutors to use pattern evidence and similarities of the crimes to establish that the accused in fact was liable for giving orders to murder civilians under the command liability theory.11 However, although the Kajelijeli case also included soldiers who were acting under the control of their commanders, the court was apparently less willing to allow circumstantial evidence and inferences to establish command responsibility liability for crimes of sexual violence. Despite eyewitness testimony that corroborated the fact that the defendant not only was entirely aware of but also authorized his subordinates to commit acts of sexual violence, “the Trial Chamber found the evidence insufficient to prove that the accused had ordered them, in one case noting that the prosecution had failed to prove that the accused had ‘issued a specific order to rape or sexually assault [the victims] on that day’.”12 Furthermore, the Chamber in the Kajelijeli case cited as one of the reasons why the prosecution failed was because they were not able to prove that the defendant was physically present during the rapes or mutilations, and therefore the prosecution was not able to meet the requirements of the command liability theory.13

Although the Kajelijeli case at the ICTR appeared to require more direct physical evidence to convict under command responsibility theory, the Ntagerura case at the ICTR reflects that prosecutors might face fewer obstacles in securing convictions under the command responsibility theory for non-SGBC. In Prosecutor v. Ntagerura, Imanishimwe was the commander of a military camp where his subordinates killed almost 3,000 civilian refugees.14 The Trial Court in that case did something unprecedented; it found the military leader guilty of extermination and genocide under solely the commander responsibility doctrine.15

The disparity in outcome between the Galić and Kajelijeli cases therefore supports the theory that circumstantial evidence is afforded more leniency in crimes that do not deal solely with charges of sexual violence, whereas the evidentiary standard appears to hold circumstantial evidence to higher scrutiny in cases that do address instances and sexual and gender based violence.

III. Conclusion

For several reasons, the OTP at the ICC faces significant challenge in securing evidence from first responders on the ground that work with victims and survivors of sexual and gender based crimes. The implications of this lack of cooperation bear heavily on the ability to utilize the command responsibility theory in prosecuting commanders of those who perpetrated sexual and gender based crimes. However, as this comment suggests, while successful convictions based on the commander responsibility theory are a challenge in and of themselves, it becomes apparently more challenging to employ this doctrine to convict based on charges of sexual and gender based crimes. The extra hurdles inherent within prosecution of sexual and gender based crimes as opposed to non sexual and gender based crimes underscore the importance of resolving cooperation issues in the first place, such that evidence may be utilized more efficiently and effectively in the future.

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

  1. 1.

    Xabier Agirre Aranburu, Sexual Violence Beyond a Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases, 23 Leiden J. Int’l L. 609, 610 (2010), available online. ↩

  2. 2.

    Susana SáCouto & Katherine Cleary, Importance of Effective Investigation of Sexual Violence and Gender-Based Crimes at the International Criminal Court, 17 Am. U. J. Gender & Soc. Pol’y & L. 337, 373 (2009), available online, archived. ↩

  3. 3.

    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), available online. ↩

  4. 4.

    Kelly Askin, Prosecuting Wartime Rape and Other Gender-Related Crimes Under International Law: Extraordinary Advances, Enduring Obstacles, 21 Berkeley J. Int’l L. 288 (2003), available online, archived. ↩

  5. 5.

    The Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, IT-96-21-T, Judgement (ICTY Trial Chamber, Nov. 16, 1998) [hereinafter Čelebići Trial Chamber Judgment], available online. ↩

  6. 6.

    Askin, supra note 4. ↩

  7. 7.

    Haffajee, supra note 3. ↩

  8. 8.

    See SáCouto & Clearly, supra note 2, at 373. ↩

  9. 9.

    Allison M. Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 Cal. L. Rev. 75, 122 (Jan. 2005), available online ↩

  10. 10.

    See The Prosecutor v. Stanislav Galić, IT-98-29-T, Judgement and Opinion (Dec. 5, 2003), available online. ↩

  11. 11.

    SáCouto & Clearly, supra note 2, at 373. ↩

  12. 12.

    Id. ↩

  13. 13.

    The Prosecutor v. Juvénal Kajelijeli, ICTR-98-44A-T, Judgment and Sentence (ICTR Trial Chamber II, Dec. 1, 2003), available online. ↩

  14. 14.

    The Prosecutor v. André Ntagerura, Emmanuel Bagambiki & Samuel Imanishimwe, ICTR-99-46-T, Judgement and Sentence (ICTR Trial Chamber III, Feb. 25, 2004), available online. ↩

  15. 15.

    Christine Bishai, Superior Responsibility, Inferior Sentencing: Sentencing Practice at the International Criminal Tribunals, 11 Nw. J. Int’l Hum. Rts. 84 (2013), available online. ↩

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