II. The Difficulties in Obtaining the Requisite Evidence Needed to Prosecute SGBV Crimes

Another issue that prevents prosecution of SGBV crimes like mass rape is the difficulty in assembling a case against the accused. Even simple rape is extremely difficult to prosecute domestically where there is at least a chance forensic evidence can be used. In instances of mass rape like was present in the Central African Republic, forensic evidence is completely unavailable. Furthermore, the ICC does not try simple rape, but mass rape. SGBV crimes like mass rape are immensely challenging to prosecute. These crimes are so difficult to prosecute because they are usually not directly ordered and require victim testimony. The recent ruling in the Bemba case will exacerbate the already huge obstacles the OTP faces in prosecuting SGBV crimes, which in turn creates new obstacles for SGBV victims.

A. Evidence Needed to Prove SGBV Crimes at the ICC

While producing evidence for simple rape in the domestic context can be complicated, forensic evidence is sometimes available. In contrast, forensic evidence is almost never available for the crimes tried before the ICC. The lack of forensic evidence can be explained through the difficulties of collecting and retaining evidence in active conflict zones where the infrastructure has collapsed or are especially remote areas like where many of the crimes at issue in the Bemba trial took place.5 NGO s and other first responders that treat SGBV victims on the ground do not have the resources to adequately record and store DNA evidence. Further even if they could and did, they likely would not share such information with the ICC because it would jeopardize the safety of the first responder operations. First responders that provide emergency health clinics and other forms of aid operate in war-torn areas must maintain very delicate relationships with all warring parties in order to not endanger themselves or their work. Cooperating with the ICC to such an extent as providing DNA evidence might jeopardize humanitarian workers’ ability to continue their own work. Admittedly, there is a legitimate fear of retaliation by government authorities who are threatened by ICC investigations as evidence by the reaction of the Sudanese government when the ICC issued an arrest warrant for President Omar al-Bashir.6 After the ICC issued the arrest warrant, the Sudanese government removed aid groups, blocked humanitarian aid, and kidnapped aid workers.7 Further, asking these organizations to collect and retain evidence in a useful format for the OTP would refocus resources away from services a part of their own mandate.8

1. Identification Evidence

Since forensic evidence is neither available nor practical, the OTP must look to other forms of evidence such as victim and witness testimony. During the pre-trial hearings and trial, the ICC tends to focus less on what happened since the devastation is often already well known and more on who did it.

In the Bemba case, Mr. Bemba insisted that the identification evidence must support a reasoned opinion for identification of the specific accused person and, in support of this argument, relied on jurisprudence of individual identification.9 However, individualized identification is not the type of identification that is critical at the level of ICC adjudication because the individuals that the ICC are trying are not the individuals committing the crimes that form the basis of the charges. Instead, the type of identification evidence that best supports the OTP ’s case is evidence relating to the military affiliation of the soldiers.10 Examples of identification evidence used in the Bemba trial consisted of the uniforms the perpetrators were wearing, the language they were speaking, and more generally the modus operandi of MLC soldiers. While the majority did not address Mr. Bemba’s fifth ground of appeal concerning identification evidence, the dissent and the separate opinion of Judge Christine Van den Wyngaert and Judge Howard Morrison both did.

The separate opinion of Judge Christine Van den Wyngaert and Judge Howard Morrison took issue with the opacity of the reasoning and the evidence relied on by the trial court.11 However, poor writing and formatting of a court opinion should not be determinative in a criminal trial appeal on the merits even in light of Article 74(5).12 The separate opinion also criticizes the use of hearsay and anonymous hearsay evidence.13 Many of the statements at issue were given before a CAR magistrate and provided the basis for the Trial Chamber’s findings concerning the scale of the crimes. The criticisms of reliance on these statements being out-of-court and authenticated only by the person who took them are unrealistic. All of the witnesses needed to testify to the scale of the attacks cannot be expected to uproot their lives even more and live in the Hague during trial. Hearsay evidence may be regarded by many legal systems as problematic, but that does not indicate lack of value for trials in the ICC.

The ICC is not just any criminal court, it is a specialized criminal court built to deal with the most egregious crimes on the largest scales. In order to comply with this mandate, the court must do things somewhat differently than domestic courts dealing with crimes of a smaller scale. However, the separate opinion’s criticism of the terseness of the statements relied on and the lack of any explanation of how the witnesses identified the attackers as MLC forces is not only credible, but it is a constructive critique.14 More can and should be done by the OTP when statements are taken to ensure that they opine on all necessary elements. Additionally, the Trial Chamber should have explicitly addressed the approximate number of murders, rapes, and acts of pillaging that it found established and that it held Bemba responsible for.15

2. Sources of Identification Evidence

i. Victims

Whether direct victim testimony is essential to convict in cases of mass rape and crimes of SGBV is up for debate. What is clear is that the decision to testify is often wrought with consequences for victims, especially for women and men that come from more traditional societies:

For example, the stakes involved in victim testimony are high for a female victim in Bembe culture. Living in a remote Congolese village, where inhabitants typically spend their entire life, a Bembe woman known to have been raped likely would be divorced by her husband, expelled from the land she had been farming, and possible exiled from her village—the only place she has ever known. After suffering that fate, or living in constant fear of it, serving as a witness in an ICC trial could require her to travel by car (something she might never have experienced) on a dirt track for eight hours, cross an international border, and take a nine hour air flight to The Hague, where she would live for weeks or months in an unfamiliar Western apartment without the traditional community support she enjoyed throughout her life, awaiting her moment to testify—when she would likely relive the trauma by delivering her narrative of what occurred and answering detailed questions about it. After testifying, she might return to her village or a relative’s village, but her life could never be the same.16

A separate but similar obstacle for obtaining direct witness testimony stems from the somewhat strained relationship referenced above between the OTP and first responders. Article 67 of the Rome Statute provides that the Prosecutor must disclose all potentially exculpatory evidence to the defense.17 Additionally, Rule 77 of the ICC Rules of Procedure and Evidence compels the Prosecutor to share any information with the defense that is material to proper preparation.18 These requirements in turn mean that the OTP must provide protection for witnesses whose identity might be disclosed.19 First responders often receive information rapidly for relief purposes and are able to protect the anonymity of victims.20 Therefore, victim information is not received with the ICC commandments of disclosure and witness protection in mind, which makes it somewhat unusable for the OTP.

ii. Non-Victim Witnesses

For some crimes such as mass killing there are no victims that are alive to testify and, yet, these crimes are exactly the type of crimes that international courts like the ICC have been built to try.21 Thus, where there are no willing victims, non-victim eyewitness’s testimony should be sufficient. This is particularly true of mass rape since it is frequently used in a calculated way to demoralize not only the victim, but the victim’s entire community.22 In addition to eyewitness and victim testimony, other types of evidence that can be used in addition to victim and eyewitness testimony are expert witnesses’ accounts, documentary evidence, and hearsay witnesses.23 Expert witnesses might include someone from an NGO, medical background, or psychological background who could be useful in proving the widespread nature of the SGBV violence or the different manifestations of such crimes.24 Some of the judges’ issue with hearsay witnesses were discussed above, but there was no ruling on the reliability and strength of hearsay testimony.

B. Evidence Needed to Link Actual Perpetrators of the crimes to Top-Level Leaders

Once the identity of the direct perpetrators is established as the subordinates of the accused, the Prosecutor must first prove in accordance with Article 28(a) that the effective military commander “either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes.” Secondly, the Prosecutor must prove that the military commander “failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to competent authorities for investigation and prosecution.”25

1. Impact of Appellate Decision on Level of Command Responsibility Evidence Required

As a result of the appellate decision, what is needed to satisfy that the defendant either knew or should have known is somewhat unclear. The separate and dissenting opinions disagree on this matter and the majority opinion did not focus their argument on the knowledge component of Article 28. Instead, the Appeals Chamber majority held that the evidence provided did not prove that Mr. Bemba “failed to take all necessary and reasonable measures.”

The Trial Chamber focused on the following measures taken by Mr. Bemba:

1. the Mondonga Inquiry in October 2002;

2. Mr. Bemba’s visit to the CAR and meeting with UN representative General Cissé and President Patassé in November 2002;

3. Mr. Bemba’s speech at PK12 in November 2002;

4. the trial of Lieutenant Bomengo and others in December 2002;

5. the Zongo Commission in December 2002;

6. a letter written by Mr. Bemba to General Cissé in January 2003;

7. Mr. Bemba’s letter to the President of the FIDH in February 2003; and

8. the establishment of the Sibut Mission in February 2003.26

The Trial Chamber found these measures to be both tainted and inadequate. In reaching the conclusion that Mr. Bemba failed to take all necessary and reasonable measures, the Trial Chamber provided key measures at Bemba’s disposal that were not taken such as:

1. ensured that the MLC troops in the CAR were properly trained in the rules of international humanitarian law, and adequately supervised during the 2002–2003 CAR Operation;

2. initiated genuine and full investigations into the commission of crimes, and properly tried and punished any soldiers alleged of having committed crimes;

3. issued further and clear orders to the commanders of the troops in the CAR to prevent the commission of crimes;

4. altered the deployment of troops, for example, to minimise contact with civilian populations;

5. removed, replaced, or dismissed officers and soldiers found to have committed or condoned any crimes in the CAR; and/or

6. shared relevant information with the CAR authorities or others and supported them in any efforts to investigate criminal allegations.27

The Appeals Chamber majority decision cautioned against evaluating a commander’s actions with the benefit of hindsight, which it argues the trial court did.28 Instead, the majority decision reads Article 28 as requiring the court to determine what was within the material ability of the commander at that point in time, taking into account the “operational realities on the ground” and the “impact of measures to prevent or repress criminal behavior on ongoing or planned operations.”29 The Appeals Chamber’s interpretation of Article 28 seems to deemphasize the word all and instead reads the entire test as hinging upon the word reasonable .

The majority also focused on Mr. Bemba being a remote commander to support its conclusion that he had taken all necessary and reasonable measures. The majority claimed that Mr. Bemba was owed a certain deference due to the “limitations that Mr. Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country.”30 The idea that being a remote commander would significantly hamper your ability to monitor and control your troops seems to make more sense in the wars of previous centuries. Today, it is hard to fathom modern military commanders without immediate and direct lines of communication to their forces at all times regardless of where they are in the world given the advent of cell phones and other readily available technology.31 To adopt the majority’s claim in full would be excessively deferential to the accused by providing a presumption of inability to control troops for all military leaders who are operating from the other side of a border or just an adequate geographical distance.32 Such a presumption has no place in the world of modern warfare and only serves to further increase the burden on the prosecution to prove command responsibility.

2. Obstacles to Establishing Command Responsibility Link for SGBV crimes

Mass rape and other SGBV crimes are used as tools of war but are rarely if ever explicitly commanded from leadership. Instead, SGBV crimes tend to be encouraged, implicitly approved, tolerated, or ignored by commanders.33 Systematic dehumanization of entire villages and ethnic groups often occur without the bureaucratic documentation that has been characteristic of mass atrocities that have taken place in Europe.

The Appeals Chamber’s narrow reading of what constitutes all necessary and reasonable measures described above seems exceedingly deferential to the defendant. As with all ICC decisions, the lack of the stare decisis in the court makes the consequences of the Article 28 interpretation somewhat unpredictable. However, if the court choses to follow the Bemba decision then this more relaxed interpretation will be hard to overcome in cases of SGBV. For example, it may be seen by a commander that cracking down on rape and other acts of SGBV committed by soldiers may seriously hinder ongoing or planned operations. Will the court defer to a leader who deemed it unreasonable to risk the entire operation in order to weed out all insubordinates, particularly if rape is commonly perpetrated? It is unclear, how far the court is willing to go to excuse valuing military objectives over stamping out and punishing the crimes of subordinate soldiers.

What is clear is that this new interpretation advanced by the appellate majority has deemphasized all measures and necessary measures, which cannot bode well for the future prosecution of command responsibility for SGBV crimes. Considering that the Trial Chamber’s conviction of Mr. Bemba has been the only successful conviction of SGBV crimes of the ICC’s tenure and that the Appeals Chamber has reinterpreted fundamental provisions of the Rome Statute to obliterate that ruling, the OTP will have to be more precise in its pleadings and more expansive in the evidence and arguments put before the court.

III. New Interpretation of the Role of Pre-Trial Chamber Hearings

The majority decision asserts a new interpretation of the role of the pre-trial chamber. Traditionally under Article 61, the pre-trial chamber has been understood by the Appeals Chamber to hold a confirmation of charges hearing “to separate those cases and charges which should go to trial from those that should not.”34 The prosecutor has had broad discretion in bringing charges before the pre-trial chamber and:

[W]here specific criminal acts are alleged to support a more broadly described charge, the pre-trial chamber must consider these acts in so far as it may serve its enquiry into whether there is sufficient evidence to establish substantial grounds to believe that the person committed the crimes charged.35

The pre-trial hearings are not supposed to devolve into mini trials and requiring laborious fact findings goes beyond the procedure described in the Rome Statute and would draw out pre-trial detention periods.36

Article 74(2) of the Rome Statute requires that the Trial Chamber’s decision be based on “its evaluation of the evidence and the entire proceedings,” however “the decision should not exceed the facts and circumstances described in the charges.” and any amendments.37 The Appeals Chamber’s new interpretation of this provision exacts a stricter interpretation of what constitutes adequately brought charges under this provision. The new standard demands detailed evidence of each crime committed and to be charged at be brought at before the pre-trial chamber or that the prosecutor properly submit a burdensome amendment to the charges.

The resulting conclusion of the Bemba Appeals majority dramatically reduced the scale of the crimes being charged. Such a reduction in the scale was an injustice to the victims. Procedural reform should be executed this way. If the ICC wises to reform in such drastic ways, then there should be new rules issued or amendments made to existing procedural guidelines. Or at the very least, the case should have been remanded. To refuse to remand the case, while drastically change the role of the confirmation hearing, makes no sense. Instead of clearly articulating this change, the Appeals chamber reads the conviction decision devastatingly narrowly. Furthermore, the Appeals Chamber rejects all relevancy of the defendant’s right to adequate notice of the charges brought against him without any explanation as to why the defendant’s rights are not relevant to the scope of the charges properly brought. Beyond notice, the Appeals Chamber brings forth no argument suggesting that Bemba in any way hindered in preparing for his defense because of the timeline of when the details of the specific crimes emerged.38

A. Why the New Role of the Pre-Trial Chamber is an Issue for Future Prosecution of SGBV crimes

Historically, a conviction hearing lasts about a week, containing little oral argument, and very few or no witnesses.39 However, if the Appeals Chamber’s pre-trial prescription for conviction hearings become reality then these hearings will likely grow drastically in length and require more argument and witness testimony. Assuming this new role of the Pre-trial Chamber is adopted, it will quite simply increase the burden on the OTP by requiring the OTP to be much further along in its investigation when they issue a warrant or summons than it is when it currently issues warrants or summons. If the prosecutor is not prepared for more of a mini-trial by the Pre-Trial Chamber hearings, then they will likely find their principal case will be diminished in scope.

Reinterpreting the role of the Pre-Trial Chamber and its hearings especially impacts cases featuring SGBV crimes. This is partially because of the length of time required to gather evidence is when it comes to SGBV crimes.40 Underreporting of SGBV crimes is a tremendous hurdle to gathering evidence and greatly contributes to the length of time needed to discover evidence as SGBV crimes are often discovered when investigating other crimes. In addition to underreporting, psychological trauma or the fear of being ostracized may prevent victims from coming forward as witnesses.41

Furthermore, the burden imposed is not only on the prosecutor, but also the victims. Victims have everything to lose in certain communities, they are at risk of being shut out from their home, their family, and everything they know in addition to the lasting trauma from the crime itself. Evidence of sexual violence often comes out during investigation of other crimes both due to lack of prioritization and hesitance of victims to come forward.42 Requiring more witness testimony would be particularly detrimental to the OTP’s ability to prosecute SGBV crimes because victims would be uprooted earlier and required to spend more time in the Hague or, alternatively, victims would be required to make multiple trips to the Hague.

IV. The Future of SGBV Crimes Prosecution

The majority of this comment illustrates different aspects of the Appeals Chamber decision that will make conviction on SGBV crimes less likely and, consequently, generally disincentivizes the Prosecutor to go after these crimes. The OTP has limited resources. In the Bemba trial, the OTP got burned diverting a tremendous amount of time and resources on investigating and prosecuting crimes of SGBV only to get an overturned conviction that rejected much of the evidence and arguments presented on procedural grounds. After the Bemba acquittal, the standards that should be followed moving forward are somewhat unclear, which further incentivizes the OTP to focus on other, easier to prove crimes where they have had success prosecuting in the past. Regardless, the OTP must persevere and strive to bring justice to the countless victims of SGBV around the world.

A. Recommendation to the Prosecutor

The relevant standards announced by the Appeals Chamber in the Bemba judgment are more stringent than previous interpretations by the court. If the Prosecutor follows and meets the standards as introduced in the judgment, then the cases she brings would be stronger. Therefore, despite the uncertainty of the impact of the decision on the court procedures moving forward, the Prosecutor should strive to meet these standards in her arguments. In striving to meet these standards, there are a few things the Prosecutor can focus on in order to overcome the challenges discussed in this comment.

First, the Prosecutor can increase witness participation by engaging with witnesses earlier on and by working with the court to make it less burdensome on witnesses to testify. This can be done through video-link testimony, judicial site visits, prosecutor site visits, or even in situ trials. Second, the prosecutor can look for conflicts with vast numbers of crimes or conflicts that have gained international, regional, or domestic attention from reporters. Attention from reporters can help establish the knowledge of the commander being charged. Alternatively, the prosecutor can look to prosecute SGBV crimes in conflicts where the perpetrators are from more bureaucratic states. In bureaucratic sates, there is more likely to be a paper trail establishing control or direction by the commander in those states. Third, the prosecutor must focus on adequately charging a comprehensive set of crimes early on. This will likely require more intensive work earlier on in the investigation and pre-trial process for the Prosecutor, but it seems to be necessary to overcome the Appeals Chamber’s interpretation of which crimes were properly charged.

1. Ways to Increase Witness Participation

The Prosecutor should also explore these other tools at her disposal to increase witness participation: the use of video-link testimony and in situ proceedings. Video-link testimony has been approved and used in ICC trials before, therefore this is not a novel idea.43 Particularly for victims who are hesitant to travel to the Hague because their community does not know they were a victim of rape, video-link testimony enables these victims to participate fully while minimizing the risks involved with travelling to the Hague to testify. Furthermore, video-link testimony can be a useful tool for allowing victim anonymity before the accused. Video-link testimony can also be a helpful tool to enable more victims or other witnesses to participate while reducing the costs for the ICC and enabling the court to allocate resources to empowering more witnesses to testify instead of having to transport and host them at the Hague.

i. In Situ Proceedings

In Situ proceedings, while less common, also can be a helpful tool to gain victim trust and, thereby, encourage participation. Many victims often feel, and objectively are, far removed from the proceedings at the Hague. Unfortunately, the court has often found in situ proceedings to be inappropriate in cases due to safety concerns. Indeed, victims themselves can be wary of in situ proceedings because they fear that violence against the victims might erupt if the accused is brought back.44

ii. Site Visits

If in situ proceedings are not appropriate, the OTP should engage in site visits. Ideally, the Prosecutor would be able to convince the Trial Chamber to make a judicial site visit in order to fully understand the evidences the victims suffered from and increase the feeling of judicial efficacy among the affected communities.45 However, the Prosecutor can make a site visit on her own to produce similar support from the victims.46 By gaining the support and trust of the victims, there will be more victim participation that will strengthen the prosecution’s case.

2. Paper Trails and Bureaucratic States

Command Responsibility is easier to establish when there is some sort of paper trail to follow. Unfortunately, paper trails become increasingly necessary the greater the scale of crimes. For example, the Holocaust required mass amounts of planning and calculations in order to coordinate the genocide. As evidence by the trial of Adolf Eichmann, something as seemingly simple as coordinating the trains going to the concentration camps produces massive amounts of incriminating documentation and calculations.47 Command responsibility for the Holocaust was relatively easy to prove because the orders came from the top down in true bureaucratic fashion.48 Consequently, the defense of many lower level German soldiers was that they were following orders and the laws of the time.49

Paper trails are definitely helpful to the prosecution, but incriminating paper trails are most often found in cases of commission by commanders, not omission. SGBV crimes, particularly mass rape, tend to rarely be commanded explicitly from the highest commander. Thus, command responsibility in SGBV cases needs to be proved on the basis of the commander’s omissions. However, any documentation of communication between commanders and their subordinates can still be very helpful for establishing the knowledge requirements of Article 28.50

Furthermore, paper trails and other incriminating documentation are characteristic of bureaucratic countries. The preliminary investigation in Afghanistan includes “war crimes, including torture, cruel treatment, outrages upon personal dignity, rape and other forms of sexual violence by US armed forces and members of the CIA.”51 The torture papers in United States are an example of a current day paper trail that might be useful to the Prosecutor in establishing that the commander knew or should have known about the crimes being committed.5 Whether or not the Prosecutor will and should advance the investigation of the United States to a full-scale investigation is beyond the scope of this comment. If she were to hypothetically bring charges it is unclear who she would be bringing them against, and, consequently, it is unclear whether or not proving command responsibility would be an issue.

3. Vast Number of Crimes

When the sheer number of crimes is overwhelming, there will be more people touched by the crimes. The more people touched by the crimes, the more possible sources of testimony. Conflicts often attract reporters armed with cameras, microphones, and pens. Quite simply, larger conflicts attract more attention from around the world. Conflicts that are well-publicized can be useful for the OTP for two reasons: as a source of evidence or evidentiary leads to victims and as establishing command responsibility.

4. Publicized Conflicts

Furthermore, the more publicized the details of a particular conflict are the easier it should be to prove knowledge or that the commander should have known about what his troops were doing. Reliable reporting can create a sort of paper trail where there none existed before. This reporter driven paper trail can assist in command responsibility cases of omission because if the world is aware of what is going on due to reporting in devastated areas then it will be very difficult for the defense to counterargue that the accused did not in fact have knowledge and should not have known the atrocities that were being committed by his subordinates.

5. Shift of Prosecutor’s Timeline

Use of the work done by journalists in the field, can ease the burden on the Prosecutor of the new front-loading of work that must be completed before the pre-trial hearings in order to correctly charge the suspect under the Appeals Chamber’s interpretation. The entire timeline of research, investigation, and briefing that the Prosecutor must do has been seemingly shifted by the Appeals Chamber’s ruling in Bemba. Therefore, the Prosecutor must make site visits as early on in the process as possible in order to maximize their effects in addition to looking for other factors mentioned above in order to ease the new pre-trial burden that the Prosecutor faces.

Unfortunately, it is difficult to be certain the impact that the Bemba acquittal will have on the actual Pre-Trial Chamber’s process. However, until it is known for certain, the Prosecutor must to everything in her power to fulfill the new stringent standards introduced by the Appeals Chamber in the Bemba ruling in order to have a chance at successfully prosecuting crimes of command responsibility and other SGBV related crimes.

V. Conclusion

In summary, the Appeals Chamber’s judgment in the Bemba case will likely increase the difficulty for the OTP in future prosecution of SGBV crimes. Due to the lack of a recognized stare decisis doctrine at the ICC, it is hard to predict how much of an impact the Appeals Chamber’s judgment will have on the role of the Pre-Trial Chamber or on the interpretation of Article 28. However, the reality that SGBV crimes are extremely difficult to prosecute does not require speculation. Yet, the Prosecutor must continue to bring charges for these atrocious crimes. The Bemba trial brought SGBV crimes out of the shadows and into the court room. Now that it has, SGBV crimes should never again be excused as by-products of war. Victim who endured these awful crimes deserve justice.

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

1. 1.

   The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3343, Judgment pursuant to Article 74 of the Statute, ¶ 742 (TC III, Mar. 21, 2016) [hereinafter Bemba Trial Chamber Judgment], available online, archived. ↩

2. 2.

   Fatou Bensouda, ICC Prosecutor, Statement on the Recent Judgment of the ICC Appeals Chamber acquitting Mr Jean-Pierre Bemba Gombo (Jun. 13, 2018), available online. ↩

3. 3.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 28, available online. ↩

4. 4.

   See, e.g., Margot Wallström, Keynote Address at the Women and War UNSCR 1325 Tenth Anniversary Conference (Nov. 3, 2010), available online. ↩

5. 5.

   See, e.g., Kim Thuy Seelinger, Response to 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 Crimes?,” ICC Forum (Apr. 12, 2016), available online. ↩

6. 6.

   See, e.g., Susana SáCouto, Encouraging First Responders to Collaborate with the International Criminal Court and Improving their Capacity to Obtain Information so that it may be Used for Investigations or in Judicial Proceedings Involving Sexual and Gender Based Crimes, ICC Forum (Apr. 12, 2016), available online. ↩

7. 7.

   Id. ↩

8. 8.

   Id. ↩

9. 9.

   The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx1-Red, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański, ¶ 571 (AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Dissent], available online, archived. ↩

10. 10.

    Id. ↩

11. 11.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx2, Separate Opinion of Judge Christine Van den Wyngaert and Judge Howard Morrison, ¶ 6 (AC, Jun. 8, 2018) [hereinafter Separate Opinion of Wyngaert & Morrison], available online, archived. ↩

12. 12.

    Rome Statute, supra note 3, at Art. 74(5). ↩

13. 13.

    Separate Opinion of Wyngaert & Morrison, supra note 11, ¶ 8. ↩

14. 14.

    Id. ¶ 9. ↩

15. 15.

    Id. ¶ 23. ↩

16. 16.

    Richard H. Steinberg, Introduction to Part 6, in Contemporary Issues Facing the International Criminal Court 272–73 (Richard H. Steinberg ed., Apr. 8, 2016), doi. ↩

17. 17.

    Rome Statute, supra note 3, at Art. 67. ↩

18. 18.

    See, e.g., Alex Whiting, The ICC OTP Cannot Do It Alone: New Institutions are Required to Support the Work of First Responders, ICC Forum (Apr. 12, 2016), available online. ↩

19. 19.

    Id. ↩

20. 20.

    Id. ↩

21. 21.

    See, e.g., Kelly Dawn Askin, Response to Question: “Can the ICC Sustain a Conviction for the Underlying Crime of Mass Rape Without Testimony from Victims?,” ICC Forum (Jun. 26, 2012), available online. ↩

22. 22.

    See, e.g., Kelly Dawn Askin, When Rape is a Tool of War, CNN, May 17, 2011, available online. ↩

23. 23.

    See Anne-Marie de Brouwer, Cases of Mass Sexual Violence Can Be Proven Without Direct Victim Testimony, ICC Forum (Jun. 26, 2012), available online. ↩

24. 24.

    Id. ↩

25. 25.

    Rome Statute, supra note 3, at Art. 28(a)(ii). ↩

26. 26.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute,” ¶ 122 (AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Judgment], available online, archived. ↩

27. 27.

    Bemba Trial Chamber Judgment, supra note 1, ¶ 729. ↩

28. 28.

    Bemba Appeals Chamber Judgment, supra note 26, ¶¶ 167–70. ↩

29. 29.

    Id. ¶ 170. ↩

30. 30.

    Id. ¶ 191. ↩

31. 31.

    See Leila Nadya Sadat, Fiddling While Rome Burns? The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo, EJIL Talk (Jun. 12, 2018), available online, archived. ↩

32. 32.

    Id. ↩

33. 33.

    de Brouwer, supra note 23. ↩

34. 34.

    The Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10 OA 4, Judgment on the Appeal of the Prosecutor Against the Decision of Pre-Trial Chamber I of 16 December 2011 Entitled “Decision on the confirmation of charges,” ¶ 39 (AC, May 30, 2012), available online. ↩

35. 35.

    Bemba Appeals Chamber Dissent, supra note 9, ¶ 34. ↩

36. 36.

    Id. ↩

37. 37.

    Rome Statute, supra note 3, Art. 74(2). ↩

38. 38.

    See, e.g., Alex Whiting, Appeals Judges Turn the ICC on Its Head With Bemba Decision, Just Security (Jun. 14, 2018), available online, archived.

    ↩

39. 39.

    Id. ↩

40. 40.

    See, e.g., Nicole Cvercko, Analysis: The ICC’s Treatment of Sexual and Gender-Based Violence Crimes, Philippe Kirsch Inst. (Jul. 18, 2018), available online. ↩

41. 41.

    Id. ↩

42. 42.

    See, e.g., Susana SáCouto, The Impact of the Appeals Chamber Decision in Bemba: Impunity for Sexual and Gender-Based Crimes?, Int’l Just. Monitor (Jun. 22, 2018), available online. ↩

43. 43.

    See, e.g., Aggrey Mutambo, ICC Judges Order Witness in William Ruto Case to Appear via Video Link, Daily Nation, Feb. 17, 2015, available online. ↩

44. 44.

    The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, ICC-02/11-01/15, Consolidated Response to Mr Gbagbo’s Requests for In Situ Proceedings and for Site Visits and to the Prosecution’s Submissions on Site Visits, ¶ 15 (TC I, Oct. 6, 2015), available online. ↩

45. 45.

    Id. ¶ 23. ↩

46. 46.

    See Lino Owor Ogora, Why the ICC Should Reconsider its Decision on In Situ Proceedings in Uganda, Int’l Just. Monitor (Oct. 7, 2016), available online. ↩

47. 47.

    See, e.g., Yael Weinstock Mashbaum, The Eichmann Trial: Introduction and Suggestions for Classroom Use, Yad Vashem, available online (last visited Apr. 26, 2019). ↩

48. 48.

    See, e.g., Laurence Rees, The Life of an Auschwitz Guard, Politico, Jul. 15, 2015, available online. ↩

49. 49.

    See, e.g., Deborah E. Lippstadt, Excerpt: “The Eichmann Trial” (Mar. 27, 2011), available online. ↩

50. 50.

    Rome Statute, supra note 3, at Art. 28. ↩

51. 51.

    See Preliminary Investigation Afghanistan, ICC, available online (last visited Dec. 4, 2018). ↩