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- AhmadSoliman: Admissibility of Illegally Obtained Cyber Evidence at the ICC I. Introduction The International Criminal Court (ICC) is already grappling with questions about what types of cyber evidence will be admissible to the Court. Even more difficult questions about the admissibility of illegally obtained cyber information are on the horizon. The law governing the admissibility of illegally obtained cyber evidence contains several ambiguities, and new types of... (more)
- Steve Helmeci: The “Coming Storm”: Possibilities for Preserving Evidence of War Crimes Published on Major Online Service Providers I. Introduction There should be no greater windfall for criminal prosecutors, national or international, than the growth of the Internet as a tool for communication and networking. Potential evidence against perpetrators abounds: photos and videos posted by offenders, victims, and witnesses alike; personal... (more)
- glazera2020: Protecting Against Deepfakes: How the ICC Can Ensure Trust in the Verification and Use of Open-Source Evidence I. Introduction Digital devices have allowed ordinary civilians to become on-the-ground investigative reporters in almost every region of the world. Contemporaneous uploads of footage featuring protestors being tear-gassed in Hong Kong or Syrians fleeing from chemical warfare have allowed viewers all over the... (more)
- brittnewell: What Policies Should the Office of the Prosecutor Adopt in Receiving Cyber Evidence From User-Generated Evidence Gathering Apps to Help Protect Those Providing It? I. Introduction The rapid increase in the use of camera-equipped and internet-connected devices has enabled individuals to record far more information about their lives and their surroundings than ever before. This fundamental shift in information gathering is transforming... (more)
- Abhishek: Digital Evidence and the Use of Artificial Intelligence I. Introduction With the advent of new advancements in the technological world, it should come as no surprise that the primary source of information gathering and documentation is within the grasp of every individual. Internet and smartphones have virtually created journalists and investigators on every corner. International human rights and criminal prosecution organizations have... (more)
- marianava: Digital Evidence Repositories and Vulnerable Populations: How the Accumulation of Digital Evidence May Interact with the Privacy of Sexual Assault Survivors I. Introduction With the rise of digital technology, it is likely that the future of evidence collection at the International Criminal Court (ICC) will increasingly rely on digital evidence. This may take the form of videos, images, etc. (media) taken by victims or civil society... (more)
- Jill Mierke: The Promise and Problems of Open Source Evidence in ICC Investigations and Trials I. Introduction On August 15, 2017, the Pre-Trial Chamber of the International Criminal Court (ICC) issued an arrest warrant for senior Libyan military commander, Mahmoud Al-Werfalli.1 Al-Werfalli is accused of personally committing or ordering thirty-three murders in Benghazi between June 2016 and July 2017. Importantly, this is the... (more)
Comment on the Cyber Evidence Question: “To what extent can cyber evidence repositories, and digital and open-source evidence, facilitate the work of the OTP, and the ICC more generally?”
Digital Evidence Repositories and Vulnerable Populations: How the Accumulation of Digital Evidence May Interact with the Privacy of Sexual Assault Survivors
With the rise of digital technology, it is likely that the future of evidence collection at the International Criminal Court (ICC) will increasingly rely on digital evidence. This may take the form of videos, images, etc. (media) taken by victims or civil society organizations, or evidence uploaded to social media platforms by victims themselves. We have already seen a recent arrest warrant heavily rely on digital evidence.1 The collection of digital evidence would aid in the documentation of mass atrocities; the international community would no longer have to wait to document events because it is deemed too unsafe to send people into active conflict zones. It would probably be faster, cheaper, and easier to collect evidence.
However, the collection and storage of digital evidence does not come without concerns over individual privacy. It is unclear who would control such a repository: The ICC itself? Civil society groups? International governments? Private companies? The answer to this question would also likely dictate whether and to what extent it would be accessible to the public. Keeping it from the public could prompt criticism of a lack of transparency. On the other hand, opening it up to public viewing would increase concerns around the individual privacy of those whose likenesses or other personal information could be gathered from the media. Even if the repository is intended to be private, the likelihood that it would stay that way is questionable, as centralized storage of this sort of data could garner public attention and run the risk of being vulnerable to hacking and publication. There have already been multiple hacks of government data around the world.2 Whether the repository is public or private, therefore, it is possible that the identities of victims could eventually be made public.
While the possibility that the details of an investigation, including victim information, could be leaked to the public has always been a concern with any kind of evidence, digital or not, the sheer mass scale of a digital repository makes it a unique consideration. Once information is publicly available, it could be seen by virtually anyone, at any time. Today, an estimated five billion people, or about 66% of the world’s population, report having a smartphone.3 Each of these five billion people could have access to sensitive information about victims. Additionally, individual victims usually have the option to testify or cooperate with an investigation or trial. Using media in which they are featured, which may or may not have been collected with their consent, strips this level of voluntariness from the ICC-victim/survivor relationship.
These privacy concerns are all the more important when we consider the identities and private information of vulnerable victim populations. This comment will deal with specific considerations that affect the evidence of rape or sexual assault survivors. Issues around privacy affect every victim population. However, I chose to focus on this particularly sensitive population because I believe it highlights the gravity of the potential consequences that may result from a violation of privacy rights. The Court is effectively one of few systems in the international community which can prosecute mass rape and sexual violence. As such, it should consider the potential consequences of storing evidence regarding this particular crime as the survivors of sexual violence may face specific harms which may not apply to any other victim/survivor population. Though I do not claim that this is the only vulnerable victim population or that the privacy concerns highlighted throughout this comment only affect sexual violence survivors, the reputational harms impacting this population should factor heavily into the Court’s considerations when establishing a digital repository.
In Section II, I look at the specialized risks surrounding the publication of the identity of a rape or sexual assault survivor. These risks include social, psychological, and financial risks—how the social stigma placed on survivors can be detrimental to their overall well-being once they are identified as survivors. In breaking down these concerns, I touch on how it affects both the individual survivors as well as their family and the general community structure. Section III provides an overview of the current victim protection protocol in place at the ICC. In Sections IV and V, I address potential challenges to the current protocol in light of digital evidence and suggest some ways in which the Court could address these concerns.
II. Risks Associated with Identification as a Survivor
Sexual violence can have a severely negative effect on the psychological and social well-being of a survivor. With limited resources, it is often difficult for humanitarian organizations to provide comprehensive post-rape psychological care.4 Even after receiving counseling, the World Health Organization reports that up to 50% of women retain stress symptoms after surviving sexual violence.5 A sexual attack can result in an inability to perform every-day tasks, nightmares, flashbacks, and suicidal ideation.6 There may also be long-term psychological effects including depression, anxiety, psychotic episodes, and PTSD.7 These issues can be chronic and debilitating. A Human Rights Watch report showed that survivors of gang rapes during Kenya’s 2007–2008 post-election violence reported chronic depression, anxiety, and unexplained pain that interfered with their ability to work, care for their children, and be full members of their communities.8
One of the most commonly experienced responses to rape is the stigmatization of the survivor.9 One survivor reported:
There is a belief that the survivor is “disgraced, dishonored, or otherwise ruined by the violation.”11 This can result in the survivor, already traumatized and lacking institutional support, being “forced out of their families, isolated from their communities, and left to deal with their trauma alone.”12 Another report cites the percentage of female survivors accompanied by their husbands to a hospital after an assault as 1%, because most have been abandoned upon their family learning about their attack.13 In conflict settings, where the protection of a community can be especially necessary, abandonment by a social group could expose the survivor to subsequent attacks.
The economic lives of survivors may also be fundamentally altered after their attack is known. In societies where marriage can be a crucial part of a woman’s financial security, divorce or abandonment can result in poverty.14 Additionally, the psychological impacts can hinder a survivor’s ability to return to their previous life or job which would similarly harm their economic stability.15 Women may become too afraid, of re-victimization or social stigma, to leave their homes to work, thereby contributing to the poverty levels of both the family and community.16
The breakdown of family structures in communities can also be seen following mass rape. One victim recounts:
Domestic abuse beyond the initial assault has become increasingly common, a by-product of the breakdown of culturally accepted marriage norms coupled with the stigma placed on a survivor’s family.18 This may result in communal trauma. In interviews with Mozambican women, survivors reported that “when one woman was raped, the rape was felt by the whole community.”19
The effects of rape and sexual assault may also extend past the individual to their children. Children “born of wartime rape constitute a vulnerable group, who are often labelled by communities as the ‘bad blood of political, ethnic, or religious enemies’” and are subsequently stigmatized at birth and lack “access to community resources, family protection and education or livelihood activities.”20 In Rwanda, there have been reports of abuse, neglect, and infanticide of babies born of sexual violence during the genocide.21 A community refusal to recognize the child as legitimate may also result in administrative challenges in birth registration or citizenship rights.22 This lack of formal citizenship can have economic impacts if the child is denied basic rights such as education and can impact the child’s ability to receive asylum.23 The children, as stated in a UNIFEM report, “become the symbol of the trauma the nation as a whole went through, and society prefers not to acknowledge their needs.”24
III. Current ICC Practices
The current witness protection protocol of the ICC, while robust and generally highly rated by past witnesses, may not be enough to fully protect survivors and witnesses in the digital space. The ICC states that:
Article 68 of the Rome Statute provides that the Court “shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.”26 In doing so, the Statute stipulates that the nature of the crime, in particular, where the crime involves sexual or gender violence, will be regarded.27 Article 43(6) stipulates the creation of a Victims and Witnesses Unit (VWU) which will provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims […] , and others who are at risk on account of testimony given.28 The VWU has indicated that protecting the identities of witnesses and victims through anonymization is key to successful protection.29 Article 54(3)(f) states that the Prosecutor may “take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information [or] the protection of any person.” 30, 31 Finally, Article 57 provides that where necessary, the pre-trial chamber will provide for the protection and privacy of victims and witnesses.”32
A. Pre-Trial Witness Protocol
The VWU first engages with witnesses after they have been identified, have agreed to testify, and have been accepted by the relevant Chamber.33 The VWU then provides a Witness Information Form which serves to provide operation and logistical support information and document any particularized issues in order to assist in preparing a specific witness plan.34 Protective measures in the witness’s home countries are aimed at a reduction in threat exposure or providing responses to an identified threat.35 These may include an assisted move, though witness relocation is “only used as a last resort, due to the immense burden put on witnesses and families.”36 Concealing the interaction between the witness and the Court from the public is often the primary goal of the VWU, as identification can carry significant risks to potential witnesses.37 The VWU may help in creating a cover story for the witness to provide to their employer or, if appropriate, confirm the witness’s participation in a trial in order to secure a leave of absence.38 The goal is to select the “least intrusive method” of protection.39 Once the witness is confirmed and transferred to the Court, they are part of the process of “courtroom familiarization” during which they are showed the Court and have the procedural elements of a proceeding explained.40
B. In-Court Testimony
Trial protective measures include expunging the individual’s name or identifying features from the public record, prohibiting the parties and participants in a proceeding from disclosing the same, using electronic presentation of evidence, identity-altering technology, pseudonyms, and in camera proceedings.41 They may also include allowing a psychologist to monitor the witness’s well-being, allowing a support person to sit next to the witness, adapting the setup of the Court to prevent eye contact between the witness and the accused, and using video-links to allow the witness to testify outside the courtroom.42 The ICC states that these protective measures do not affect the fairness of the trial and apply equally to all witnesses, whether called by the Prosecution, Defense, the legal representatives of the victims, or the Judges.43 In the Lubanga trial, the Court ordered the implementation of protective measures including withholding witness identities from the public, using pseudonyms, distorting voices, screens separating the accused and witnesses, and conducting parts of the proceedings in closed sessions.44 Voice distortion and pseudonyms were also used during the Katanga trial.45 The Bemba trial, which had a high number of witnesses who claimed sexual violence, also used pseudonyms and face distortion.46
Witnesses have reported feeling safe during their testimony, with eight of nine survivors of sexual violence choosing the highest safety rating with regard to their courtroom experience.47 Women, particularly, stated that they felt a sense of safety and gave slightly higher satisfaction ratings to the VWU support during testimony than their male counterparts.48 Nevertheless, some witnesses reported unease regarding their participation with the court when planning their return home stating that they “wanted to talk to someone about my safety when I return home” while another witnesses said they feared there was no guarantee of safety because they felt “that the accused knows me, even though he could not see me.”49
C. Post-Testimony Protocol
The fears of participating witnesses do not end when their testimony is over. Said one witness, “now, after my testimony, I will have a bigger need of protection.”50 Another stated that their “life will look like the life of somebody who has enemies.”51 The comprehensive protection measures offered by the ICC do not necessarily extend for an indeterminate amount of time. Other than relocation, it is not likely that a witness will obtain a sort of “life protection” post-testimony.52
Despite comprehensive measures, some witnesses continue to be concerned for their own safety. Witnesses in the Lubanga and Katanga cases revealed that, despite an intricate system of protective measures, they fear a backlash from their communities:
This fear may not be enough to result in protective protocols after a survivor testifies, as qualification for the ICC Protection Program must be based on objective grounds, such as actual threats and “personal preferences or subjective fears of individual witnesses are not enough.”54 Even when protections are granted, they may not be entirely successful. During the Lubanga trial, a transcript for a hearing between defense counsel and a judge was unintentionally broadcast and the Court subsequently refrained from holding private sessions until it could be certain that the issue would not reoccur.55 The report highlights that sexual assault survivors were not necessarily part of the positive responses to questions regarding post testimony experiences, which may have skewed the results in favor of witnesses who provided testimony in less stigmatized trials and who had support from community members or family prior to testifying.56
IV. Possible Issues when Applying Current Protocol to a Digital Repository
While the current ICC witness protection protocol is comprehensive and, despite some challenges, generally succeeds in offering protections to the survivor-witnesses it engages with, it might not be enough to uphold the Rome Statute’s mandate of “protecting the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.” The resources of the Court are limited and providing protection to the witnesses during the pre-testimony, testimony, and post-testimony stages of witness cooperation will become exponentially more expensive and difficult if the Court has to contend with massive amounts of media and other data. While the current protection protocol for in-chambers testimony, including voice or face distortion, will probably continue to be effective for those witnesses who are providing live testimony, new policies may have to be implemented with a digital evidence repository. These potential new policies should address issues of identification/anonymization, consent, and storage.
A. Identification/Anonymization Issues
As stated in Section III, it is a primary goal of the VWU to conceal interactions between individuals and the Court, which may prove more difficult with the continued use of digital evidence. In 2017, the Office of the Prosecutor issued an arrest warrant for Libyan military commander Mahmoud Mustafa Busayf Al-Werfalli which heavily relied on open source information, specifically media that depicted several victims being shot and killed.57 When describing the videos in the warrant, the victims are generally referred to as “unidentified men,” while others are described as hooded or otherwise not identifiable.58 This is a notable weakness in the ICC’s victim protection protocol going forward. An inability to identify survivors does not mean the presentation of their data in court shields them from privacy risks. By its nature, digital evidence will mean that it should be easier to provide evidence for crimes in the Court; victims will no longer have to be individually identified and the Prosecutor will have to expend less resources, both in money and time, to gather evidence. However, the fact that the survivors are unidentified to the Court does not mean they are unidentifiable .
The VWU may successfully keep survivors from being identified now as it is as able to contact them directly in a way that may no longer be possible when the evidence comes from digital media sources which may or may not be traceable. There is little that can be done to offer any of the pre-trial protections currently in place at the ICC when the “witness” in question is not really a witness at all, at least not in the traditional sense, but rather an unidentified individual in a given conflict zone. A witness quoted in Section III spoke of their fears that someone could read court transcripts and find out who they are, possible because they fear that members of their community or others would take retributive action against them when they return from testifying. This fear would go from a concern that someone could find a transcript to a fear that someone could find the identifiable video or photograph of their attack. This identification, as explained in Section II has the potential to irrevocably alter an individual survivor’s life. This fear may make potential witnesses wary of the evidence collection methods of the ICC.
The ICC will have to look at the protection of witness privacy as something to be done on the backend of evidence collection. Witnesses will likely no longer first be identified and then require protections from the Court. In fact, when dealing with digital evidence, it is possible that a witness may never directly engage with the Court. Therefore, the Court has to consider how it will effectively and adequately protect an exponentially larger number of witnesses than it has ever had before and do so while possibly never being able to identify the individuals in the manner required by the current protection protocol.
The Court should also consider issues of consent, which likely have not previously been primary concerns when engaging with witnesses. Every witness that has provided testimony or otherwise engaged with the Court has ostensibly done so willingly. This may or may not be the case when using digital evidence. Studies have shown that whether or not disclosure of traumatic events serves a therapeutic purpose may depend on the reactions of recipients to the disclosure.59 Some jurisdictions around the world allow effectively forced testimony by allowing law enforcement to threaten survivors of sexual violence who are unwilling to testify with jail time.60 Victim’s rights groups have denounced this practice. Colby Bruno, of the Victim’s Rights Law Center highlights the importance of survivor consent to testimony, saying:
The previous positive experiences witnesses have had while testifying have always inherently respected a survivor’s right to choose to testify. Even when confronted with difficult cross examination, witnesses still ultimately had agency in testifying.62 Forced testimony, in the jurisdictions which allow it, can lead to a fraying of the relationship between a survivor-witness and law enforcement. For example, in the United States, where material witness warrants allow District Attorneys to jail potential witnesses for refusing to testify against a defendant, witnesses who the warrants have been used against have reported being unlikely to engage with law enforcement in the future.63
This example is not to suggest that the use of digital evidence means the Court would perpetrate this same kind of coercion of witnesses. However, the relationship between potential witnesses and the Court is one of the most important tools in bringing successful cases and it may be strained if survivors do not sufficiently feel as though they have agency and choice in having their attack used in Court.
The Court should also consider the length of time for which it will store data. The protections offered by the ICC to cooperating witness reasonably come to an end at a given point, specifically when the witness is no longer a participant in a trial or investigation or is otherwise not at risk.64 Given this termination of protection, the question arises of when an individual is no longer “at risk” with a digital repository and when they are considered to be cooperating with the Court? Will the Court keep the digital evidence stored past the end of a trial and appeals? If so, for what purpose? Prolonged storage would expand the time during which an individual could be considered a witness or otherwise engaged with the Court. If data is kept after it is no longer in active or contemplated use by the Court, individuals would practically be in continued cooperation with the Court and therefore at risk for the sorts of reputational harms I highlighted in Section II. Whether it is kept private or public, as highlighted in Section I, there might be a risk of publication as a result of common data-breaches. The Court should consider how long it intends to keep media in order to adhere to established protection principles.
V. Possible Solutions
The ideas I propose are mostly geared towards the protection of witnesses before they are identified by the Court. As reported in Section III, the current protection system is rated positively by past witnesses and has, by most markers, succeeded in the goals of the Court to protect them. There is not, however, a robust system in place to protect witnesses who are depicted in media used as evidence by the Court but do not ultimately engage directly with the Court so as to avail themselves of the in-chambers protections or relocation.
The issues of consent and anonymization may be dealt with together since they both center around a survivor being publicly identified. There is no practical way to ensure informed, explicit consent universally. For example, a third-party may document someone’s attack and provide that evidence to the Court without the survivor’s knowledge. The person depicted in the evidence cannot give explicit consent so ensuring maximum anonymization is the next best solution to both the consent and anonymization issues faced by the Court. Censoring evidence to anonymize the identities of those in the video or image should be the default in the Court’s evidence collection. This would also help digital evidence collection processes adhere to the VWU’s standard of attempting to keep cooperation with the Court anonymous. It is of benefit to the Court that some organizations have already begun to engage with this issue and some of their solutions may prove helpful to the ICC. One organization of note is WITNESS, a leader in human rights documentation.65 Their technology has been previously used by the Court.66 The organization provides video equipment and training to activists and has continued to evolve as the sources of digital evidence have changed. With their creation of ObscuraCam in collaboration with the Guardian Project, WITNESS advocates that those who document human rights abuses “stop, think, and be empowered to control the media they are capturing.”67 ObscuraCam allows for the blurring or pixelization of people captured in images and videos.68 The intent behind the technology, of allowing people to “make purposeful choices about when they speak out and what degree of anonymity they hold for themselves” should be the Court’s goal as well.69
The Court should work with NGOs toward comprehensive witness education on the use of privacy protective tools such as ObscuraCam when documenting human rights abuses. Working with those organizations to educate potential witnesses on the use of this kind of technology could relieve some of the concerns around consent and anonymization, thereby potentially increasing a feeling of relative security within the survivor population. Though the universal use of this technology might not be achievable due to issues of access, demonstrated efforts by the Court to ensure privacy to the largest extent possible may reflect positively on the overall feeling of witnesses towards the Court’s evidence repository.
With regards to the storage question, the Court should consider principles of storage limitation and potentially place a time limit on media and data retention. The concept of storage limitation is an established principle in the world of privacy law. Article 5 of the General Data Protection Regulation, a European Union regulation on data protection and privacy, states:
Additionally, one of the foundational principles of privacy by design, a philosophy geared towards the creation of databases that consider data privacy during each stage of development, is purpose specification. 71 The purpose for which a specific piece of data is kept must be identified and, usually, communicated to the individual data subject at, or before, the collection of the data.72 Privacy by design principles highlight that:
The issue of when to delete should be considered in relation to the length of a trial. If the Court has no anticipated need for evidence past the end of a preliminary investigation, trial, or appeal, i.e. the lifecycle of a Court proceeding, it should consider the balance between retaining evidence and the potential risks to individuals depicted in the media. As highlighted in Section II, the harms which could come to identified sexual violence survivors are severe and life-altering. They should be weighed against the potential future use of the evidence. This balancing might be helpful in the creation of a specific time period after which evidence would be deleted.
It is possible that the Court may decide that the balance between an individual privacy right and the overall public good that may come from data retention falls in favor of indefinite retention and chooses to permanently store evidence. If so, this policy should be clearly communicated to the public through witness outreach and education efforts in order to ensure that individuals who provide evidence to the Court are not left feeling abused or misled regarding the use of their evidence. If it is the Court’s intention to store evidence past the end of a proceeding, it should attempt to ensure that those providing it are aware that they are effectively in cooperation with the Court indeterminately.
In light of the creation of a digital repository, the ICC should consider the risk of individualized harms which may come to those portrayed in digital media used at trial and stored by the Court. Whether the repository is kept public or private, risk of disclosure and publication inherently exists as a result of the nature of data storage. Possible publication should be of specific concern to the Court due to the nature of the crimes which it investigates, specifically crimes of sexual violence including mass rape and sexual assault. Identification as a survivor of sexual violence carries severe, often negative, and possibly life-altering consequences which include psychological trauma, familial breakdowns, and financial instability. Due to these risks, the Court should consider its current witness protection protocols which, although shown to be successful in offering protection to past witnesses, might not be enough as a result of new issues of identification, consent, and storage length. In order to successfully protect survivors, the Court should consider implementing a witness education program which informs the public of privacy protective tools when documenting attacks as well as consider setting a time limit for data retention.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Emma Irving, And So It Begins… Social Media Evidence in an ICC Arrest Warrant, Opinio Juris (Aug. 17, 2017), available online; The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli, ICC-01/11-01/17, Warrant of Arrest (PTC I, Aug. 15, 2017) [hereinafter Werfalli Arrest Warrant], available online. ↩
See Center for Strategic and International Studies, Significant Cyber Incidents Since 2006, available online (last visited May 26, 2020). ↩
Laura Silver, Smartphone Ownership is Growing Rapidly Around the World, but Not Always Equally, Pew Res. Center (Feb. 5, 2019), available online. ↩
Skye Wheeler, “My heart is always scared”: The Simmering Mental Health Crisis for Rape Victims in War, World Pol’y (Apr. 4, 2017), available online, archived. ↩
Médecins Sans Frontières, Shattered Lives: Immediate Medical Care Vital for Sexual Violence Victims 13 (2d ed. Jun. 2019), [hereinafter Shattered Lives], available online. ↩
Id. at 13. ↩
Id. at 13, 28. ↩
Wheeler, supra note 4. ↩
See generally, Missale Ayele, Public Health Implications of Mass Rape as a Weapon of War, Ga. St. U. (Public Health Thesis, May 7, 2011), available online. ↩
Shattered Lives, supra note 5, at 13. ↩
Id. at 18. ↩
Nicola Jones, Janice Cooper, Elizabeth Presler-Marshall & David Walker, The Fallout of Rape as a Weapon of War 3, ODI (Jun. 2014), available online. ↩
Id. at 3. ↩
Id. at 3. ↩
Id. at 3. ↩
Cassandra Clifford, Rape as a Weapon of War and its Long-Term Effects on Victims and Society, 7th Global Conference: Violence and the Contexts of Hostility (May 7, 2008), available online. ↩
Tina Sideris, Rape in War and Peace: Some Thoughts on Social Context and Gender Roles, 43 Agenda 41, 42 (2000), paywall, doi. ↩
Report of the Secretary-General, Conflict Related Sexual Violence, UN Doc. S/2019/280, at 8 (Mar. 29, 2019), available online. ↩
Charli Carpenter, War’s Impact on Children Born of Rape and Sexual Exploitation: Physical, Economic and Psychosocial Dimensions, University of Pittsburgh Working Paper (Sep. 21, 2005), available online. ↩
Conflict Related Sexual Violence, supra note 20, at 8. ↩
Carpenter, supra note 21. ↩
Witnesses, ICC, available online (last visited May 26, 2020). ↩
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, as amended [hereinafter Rome Statute], Art. 68, available online. ↩
Rome Statute, supra note 26, Art. 43. ↩
Protection and Support, VRWG, available online (last visited May 26, 2020). ↩
Rome Statute, supra note 26, Art. 54. ↩
(There has been previous litigation to establish the respective roles that the Office of the Prosecutor and the Victims and Witnesses Unit play in witness and victim protection but since the intricacies of this division of duties lie beyond the scope of this comment, I only provide this general overview). ↩
Rome Statute, supra note 26, Art. 57. ↩
Stephen Cody, Alexa Koenig, Robin Mejia, & Eric Stover, UC Berkeley HRC, Bearing Witness at the International Criminal Court: An Interview of 109 Witnesses 19 (Jun. 2014), [hereinafter Bearing Witness], available online. ↩
Id. at 19. ↩
Witnesses, supra note 25. ↩
Coalition for the International Criminal Court, Is Enough Being Done to Protect ICC Witnesses? (May 18, 2015), available online. ↩
Bearing Witness, supra note 33, at 19. ↩
Witnesses, supra note 25. ↩
International Criminal Court, Rules of Procedure and Evidence, R. 87 (2d ed. Sep. 9, 2013), available online, archived. ↩
Witnesses, supra note 25. ↩
International Bar Association, Witnesses Before the International Criminal Court 30 (Jul. 2013), available online. ↩
Id. at 31. ↩
Id. at 31. ↩
Bearing Witness, supra note 33, at 47. ↩
Id. at 47–48. ↩
Id. at 50. ↩
Id. at 53. ↩
Id. at 53. ↩
See generally, Tom Maliti, Expert: “Relocation of a witness does not entail life protection by the ICC ”, Int’l Just. Monitor (Jul. 29, 2011), available online
(reporting an interview with Mariana Pena, the Permanent Representative at The Hague of the International Federation for Human Rights who stated that relocation of a witness and possibly their families could mean the witness remains in the secondary location for the rest of their lives but that “participation in the program will need to come to an end at a certain point […] because it is costly, but also because security risks will necessarily decrease after some time.”). ↩
Bearing Witness, supra note 33, at 23. ↩
Jennifer Easterday, Witness Protection: Successes and Challenges in the Lubanga Trial, Int’l Just. Monitor (Jun. 26, 2009), available online. ↩
Id. at 62. ↩
Nikita Mehandru & Alexa Koenig, Open Source Evidence and the International Criminal Court, 32 Harv. Hum. Rts. J. (Apr. 15, 2019), available online; See also Werfalli Arrest Warrant, supra note 1, at 8–11. ↩
Werfalli Arrest Warrant, supra note 1, at 8–11. ↩
Sarah E. Ullman, Correlates and Consequences of Adult Sexual Assault Disclosure, 11 JIV 554, 555 (Dec. 1, 1996), paywall, doi. ↩
See Samantha Michaels, Should Rape Victims Have to Spend Time in Jail for Not Testifying? Louisiana’s Prosecutors Think So, Mother Jones, Apr. 19, 2019, available online; See also Henry McDonald, Alleged Rape Victim Arrested in Ireland for Refusal to Testify, The Guardian, Feb. 12, 2012, available online. ↩
Bronwyn Isaac, Why Forcing Women to Testify Against their Assailants Enforces Victim Blaming, Bustle (Apr. 21, 2017), available online. ↩
Bearing Witness, supra note 33, at 49
(reporting that a witness felt uncomfortable with some questions from counsel, saying “I was very angry because the lawyer twists my answers around and around.”). ↩
See Sarah Stillman, Why Are Prosecutors Putting Innocent Witnesses in Jail?, The New Yorker (Oct. 17, 2017), available online
(reporting that a witness who refused to testify against her abuser and was subsequently jailed saying that she would “probably not call the police again, as long as it wasn’t life-threatening.”). ↩
Maliti, supra note 52. ↩
Our Story, WITNESS, available online. ↩
Announcing ObscuraCam v1: Enhance Your Visual Privacy!, Guardian Proj., available online (last visited May 26, 2020). ↩
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons With Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation), 2016 O.J. (L 119), available online, archived; See Lydia F. de la Torre, What Does “Storage Limitation” Mean Under the EU Data Protection Law?, Medium (Jan. 22, 2019), available online
(explaining the principle of storage limitation further). ↩
See generally, Ann Cavoukian, Privacy by Design: The 7 Foundational Principles, IAPP (Nov. 2, 2010), available online. ↩