I. Victim Testimony Is Less Central in the ICC than it is in the National Context

Under the Rome Statute, mass rape may be either a crime against humanity, or a war crime. As a crime against humanity, rape and other sexual violence by definition must be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”4 Similarly, rape as a war crime must be “committed as part of a plan or policy or as part of a large-scale commission of such crimes.”5 Under each of these definitions, mass rape occurs almost exclusively in war or other types of armed conflict. It also occurs on a certain scale—not as an isolated act of violence, but as a plan, practice, or other systematized action by an aggressor consisting of multiple people.

In most national jurisdictions, the crime of mass rape as defined in the Rome Statute is a rare occurrence.6 It does not occur in most stable countries, because it is born of war and conflict. Rather, rape that is prosecuted in national jurisdictions is generally “simple rape,” or rape by one individual against another individual.7 While there may be multiple perpetrators or multiple victims in a single rape case, it will rarely rise to the level of mass rape as understood by the ICC, given its definition as a war crime or crime against humanity. In a domestic jurisdiction such as the United States, the elements of “simple” rape between unmarried people are generally: 1) sexual intercourse; 2) force or threat of force; and 3) lack of consent.8

In simple rape cases, the testimony of a single witness, the alleged victim, is integral to the prosecution’s case in chief. It is often most crucial in proving lack of consent, or the related use of force. By contrast, the elements of sexual intercourse, identity, and sometimes of force (such as where a weapon is used) may be proven by evidence other than the victim’s testimony. Identity and the fact of intercourse have readily available means of proof, such as DNA evidence, rape kit evidence, or proof of prior acquaintance. In many cases, this will irrefutably link a defendant to a rape victim, and will not depend on the testimony of the victim. Consent, by contrast, can often be proven only through victim testimony. Thus the most hotly contested issue in a rape case is usually the fact of consent, for which the witness’s testimony is critical.9

The problem of proving consent in national jurisdictions is not only sensitive, but also difficult to prove, since evidence of consent is scarce. Consent is a subjective inquiry into the state of mind of both the victim and accused. It is also entangled with the element of force, in that the absence of force may heighten the need to prove lack of consent, or conversely that the presence of force may indicate a lack of consent.10 The issue of consent will almost always turn on individual testimony, both in substance and credibility. In such cases a trial invariably may become the victim’s word against that of the accused. It will turn on the truth of the victim’s assertions—whether there was force used, and more importantly whether there was valid consent to intercourse. Therefore, the testimony of the victim, and its truth or falsity, will often make or break the case in a national jurisdiction.

In simple rape cases, a rape victim’s knowledge of his or her offender is also highly relevant. Consent to sexual activity is generally more likely when with a prior acquaintance rather than with a complete stranger. At the same time, a high percentage of rapes in the US are committed by a known perpetrator. Official statistics state that 45% of male victims and 68% of female victims knew their offender.11 Furthermore, fabricated accusations are also a danger in rape cases, with estimates ranging from 2% to over 40% of all rape reports involving false allegations.12 Because it is more plausible that sexual relations are consensual when the parties know one another, or that false accusations will be made, the element of consent is very often at issue between parties with prior acquaintance. Given the large number of such cases, the issue of whether sexual intercourse was consensual is often the central issue in national rape prosecutions.

Furthermore, the majority of simple rape cases consist of a single perpetrator and a single victim.13 Even in the cases where there are multiple perpetrators or victims, the number of victims is still low compared to that in mass rape in war or armed conflict settings, where entire villages may be routinely raped. For this reason as well, the testimony of any single witness against a defendant is central to the case against him.

In such prosecutions, preventing the defendant from cross examining the alleged victims may seriously impede his defense. Each witness is critical to the trial, and without the ability to confront these witnesses, the defendant is left with few other options for presenting a valid defense. If one victim testifies falsely, there is a high risk that an innocent person will be convicted. The most probative and valuable defense to such accusations will be to expose the falsity of the alleged victim’s story. In such cases, limiting a defendant’s ability to confront the witnesses against him could cripple his ability to exculpate himself. Where a case hinges on the truth or falsity of the victim’s statements, the right of cross-examination is utterly crucial to determining the truth. Therefore, in a simple rape case, it is extremely important to provide full rights to the defendant to cross examine witnesses, given the integral nature of the victim witness’s testimony to the case.

In the context of the ICC, the same considerations do not apply with the same force. First and foremost, the crime of rape as defined in the Rome Statute is a different crime from simple rape. Mass rape is a systematic attack on a civilian population, rather than an isolated instance of violence between two people. Thus, a prosecution’s case in chief in the ICC will necessarily have very different elements to prove. The ICC must show at least some elements of a simple rape in order to demonstrate that rape was perpetrated. However, it must also show evidence of a systematic policy, practice, or attack plan by the perpetrator, as well as victimization of a “civilian population.”14 These additional elements will not turn on the evidence of a single victim witness, simply because they are unlikely to be the only ones with access to such information, if they have access at all.

Accordingly, the role of a victim witness in proving rape differs in the ICC context from the national context. Significantly, witnesses will need to testify as to consent far less often. Consent is not an element of the crime of mass rape. Rather, the focus in mass rape cases is generally on other elements such as the existence of policy or plan. While simple rape generally requires proof of only three elements, mass rape requires a greater and more complex showing. Furthermore, the defense to the crime of mass rape will rarely be that all the victims consented, which is unlikely for several reasons. Where a civilian population is under attack, an amount of force exists which would tend to preclude any consent on the part of the victim. Furthermore, in such situations the victim and the perpetrator are unlikely to know each other, since mass rape by definition indicates indiscriminate raping. Where members of an armed group have sexual intercourse with civilians who are strangers, any claim of consent is weak at best. Thus, in the mass rape context consent will at issue much less than it is in the simple rape context.

When the issue of consent is not at issue, the credibility of the witness’s testimony is far less central. Mass rape cases will likely turn on other factors, such as the existence of a policy or plan, the accused’s knowledge of that plan, or the number of civilians raped. Although a single victim witness may testify as to any of these issues, they may also be proved by types of evidence other than victim testimony.15 The victim is less likely than others to have probative information about an armed group’s policy to rape, or about the accused’s awareness of the rapes. Thus, the victim’s credibility as to consent, or as to any other factor, is far less critical to the case.

Furthermore, in the mass rape context the scale of the crime will inevitably be greater than in the national context. A rape prosecution in the United States requires only one victim and one accused. By contrast, a rape prosecution in the ICC must show “a widespread or systematic attack” or “a plan or policy or as part of a large-scale commission of such crimes.” The prosecution may thus make a showing of a greater number of individual rapes. It may do so by proving the policy by direct evidence (i.e. through a military commender’s testimony or a military memo), by more indirect circumstantial evidence, or through testimonies of multiple victims. Given the number of victims in such a large scale crime, the testimony of any one victim is unlikely to be as critical as it is in the national context. Generally, the falsity of that witness’s testimony is less harmful to the defendant, and the truth is less damning.

This is not to suggest that witness credibility is not an issue in the ICC context, or that confrontation or cross examination is not an important right of the accused. Cross examination of a witness serves an important function of discovering truth, and of providing the defendant with a valuable tool to attack the prosecution’s case in chief. However, what makes the need for cross examination absolutely critical in the context of a simple rape case in a national jurisdiction generally does not apply to the same degree in the ICC. A single victim’s testimony will rarely, if ever, be central to the case against an accused. Accordingly, the need for the defense to cross examine the victim without restraint is reduced. The ICC may thus use alternative evidence, such as written and corroborated testimony or other measures for witness confidentiality, which do not amount to full and direct cross examination. In most cases, these alternative measures could be sufficient to protect the defense’s rights in the ICC where in the simple rape context they are not.

II. It is More Difficult to Locate Victims in the ICC than in the National Context

One inescapable difference between a prosecution in the ICC and a prosecution in a national jurisdiction is the overall system in which the court is situated. A criminal court in a developed country exists as part of a complete infrastructure. It has a police or or investigative force, enforcement abilities, and comprehensive witness protection programs, among other things. A court in a country such as the US is an integrated part of the nation’s overall governmental system. Law enforcement agents work and investigate largely in their own country. They are equipped with comprehensive training, resources, and institutional support. An American court may summon a witness, hold him in contempt of court and subject to arrest if he fails to appear, and follow through on that arrest.

The ICC, by contrast, is a standalone court. It does not have a police force or comprehensive enforcement authorities. The ICC is unable to even arrest those it has charged without help from the States Parties.16 Unlike a national court, the ICC does not have the advantage of working with other branches of a government throughout the trial, from the investigative to the sentencing stage. It cannot summon witnesses through threat of penalty, so witnesses must voluntarily come forward.

The ICC thus has a limited investigative capacity to locate witnesses. It must conduct investigations and find witnesses in an international conflict zone, without any of the institutional support of a national jurisdiction. Furthermore, the Office of the Prosecutor’s (OTP) safety policy prevents ICC investigators from fact-finding in prohibitively dangerous situations.17 The situations on the ground in which the ICC conducts investigations, and especially where it has issued warrants, are very dangerous, either at war or very unstable.18 The areas in which identifying witnesses is most necessary is perhaps most dangerous for an ICC investigator, and will often not be possible.

In addition, potential witnesses may not know of the ICC’s existence.19 The analogous situation is unlikely in a nation such as the US, where most of the population has access to the media, is subject to jury duty, and knows that courts exist. Thus, while the ICC relies on witnesses to come forward, lack of knowledge may serve as a barrier to such voluntary participation. For all of these reasons, the ability of the ICC to locate victims as potential witnesses is weaker than it would be in a national jurisdiction. Given this shortcoming, it is all the more important to reduce high barriers to voluntary victim testimony at the ICC. These include evidentiary alternatives to cross examination, such as confidential or anonymous testimony, or even written and corroborated statements.

III. The Ability to Compel Testimony is Absent in the ICC

A related incentive for witnesses to testify comes from a more intangible response to the authority of the justice and law enforcement system. In America, the judicial system is as old as the nation, and has not ceased to command at least a degree of authority since that time. While Americans may have conflicting views of their national criminal justice system, at the very least most understand that it has the capacity to arrest and imprison. For instance, people are regularly arrested, brought to court, or imprisoned for sustained periods of time.20 Moreover, a majority of Americans have at least some confidence in the criminal justice system.21 Whatever Americans may think of the police, the court system, or the government, criminal justice is undoubtedly entrenched and commands some authority. Thus, incentives which compel victims to testify include fear of sanctions (contempt of court), desire to help achieve justice, or a personal desire to punish. The established nature of the American judiciary strengthens these considerations.

By contrast, the ICC is neither an entrenched authority, nor does it have enforcement capacities. The ICC is young and a standalone court, with many unaware of its existence. Moreover, there is reason to believe that in nations where it issues arrest warrants, those aware of the ICC have a negative view of it.22 For these reasons, it lacks some of the authority that a domestic court might have among its people. The ICC is not a part of a national system which tangibly asserts its authority among civilians. It can only issue, not execute, an arrest warrant, and it lacks the summoning power of domestic courts. Unlike in a national system, there is thus no reason for civilians to be afraid not to testify. At the same time, witnesses may be less compelled to testify out of a belief of the court’s ability to imprison their offender or capacity for justice. In 10 years, the ICC has yet to sentence an offender, and at present many may not have faith in its ability to punish perpetrators. This suggests that more idealistic motivations to testify, stemming form a belief in justice or desire to punish, might be weaker in the context of the ICC than in a developed nation. Since the ICC relies heavily on voluntary witness testimony, evidentiary alternatives to unhindered examination of a victim become more vital.

IV. There are Greater Risks to the Safety of Victims who Testify at the ICC than in a National System

Perhaps the most important disincentive for victim testimony is the fact that the ICC does not have a comprehensive witness protection program. This places burdens on both witnesses and the prosecution that do not exist in the national context. Possibly the greatest barrier to witnesses testimony, at least in criminal prosecutions, is rooted in fear of retaliation.

In a domestic context, witness intimidation is often a significant problem. Such problems especially occur where the accused has many outside supporters, who are readily available to pose a threat.23 In response to this, the US implemented the Federal Witness Protection Program, as well as several separate state programs. The government relocates qualifying witnesses and their families, and provides them with a new identity, housing and other assistance.24 It thus protects witnesses both during trial and afterwards in the long term.

In the context of the ICC, witness’s fears to come forward are equally, if not more, valid. Evidence indicates that witnesses, and specifically those involved in prosecutions for sexual violence, have been intimidated or even killed as a result of trials conducted by the ICTY and the ICTR.25 In recognition of this, the ICC has also instituted witness protection measures. The Rome Statute contains numerous provisions for the protection of victims and witnesses, including a Victims and Witness Unit (VWU).26 Rule 16 of the Rules of Procedure and Evidence provides more guidance for this Unit, including the creation of witness protection programs both during and after the trial.27 However, at the same time, the VWU has stressed that relocation is a measure of last resort, and that victims should be returned as close to their region of origin as possible. This stemmed in large part from concerns about cultural continuity and a desire not to engage in “abrupt uprooting” of victims.28

Nonetheless, regardless of the strength of the ICC’s victim and witness protection program, domestic situations on the ground exacerbate the danger to witnesses and confound the protection measures that may be taken. For instance, the ICTY faced insurmountable difficulties in implementing effective witness protection measures. Because of the disconnect between the international tribunal and the state in which it operated, meaningful long-term relocation was generally not possible.29 The state simply did not have the capacity to operate an effective witness protection program during its recovery from a devastating conflict. Similar observations have been made by UN forces in areas in which the ICC is conducting investigations.30

There are other strong reasons to believe that threats to witnesses exist in situations currently under investigation by the ICC. In an environment such as the eastern DRC, “the judiciary and the police are structurally weak, lack resources, and are often corrupt; de facto, the rule of law is often absent, and existing laws on the protection of victims and witnesses are not enforced.”31 In addition, “many of the perpetrators of sexual violence belong to armed groups, the armed forces, or the police. These groups often protect their members—even when accused of rape—and have threatened or attacked victims of sexual violence who have dared to initiate judicial proceedings.”32 Especially in areas in which the ICC issues arrest warrants, armed conflict is common, and retaliation by the accused’s supporters is thus possible if not likely. Of further concern is the fact that many have been issued arrest warrants by the ICC, but remain at large or even in power. Of those who are in custody, most still have some political allies or other resources on the ground. For these reasons, witness protection is a significant obstacle for ICC trials, in a way that it is not in the national context. In many cases, it’s hard to see why a witness would come forward to testify, aside from a strong desire for justice.

There is thus a moral imperative to consider witness safety in evidentiary matters. Absolute preservation of an accused’s right to examine or cross examine victims, at the expense of their safety, raises serious ethical questions in a court whose mandate is to prevent impunity and promote justice. Regardless of the actual adequacy of the protection measures, however, the perceived lack of an established witness protection program will present a formidable obstacle for the prosecution. In the ICTY, dealing with witnesses was difficult: there was “little reason to think that the national government will in the future provide sufficient funding and support for building that kind of witness support capability that is needed….to enable effective war crimes investigation and prosecution.”33 Thus, any perceived inability of the ICC to ensure the wellbeing of victims will deter those who might otherwise give testimony. Given the ICC’s lack of control over victims’ home states, potential witnesses may be faced with the choice of returning to a dangerous situation at home, or relocating to a different continent with which they have no ties, cultural or otherwise. Without these witnesses, the prosecution will have a difficult time in sustaining its burden of proof. This creates an obstacle for the prosecution which is greater at the level of the ICC than at the national level, and indicates a more pressing need for alternatives which encourage victim testimony.

V. Greater Risk of Social Stigma for Victims in the ICC as Compared to the National Context

Certain personal reasons which prevent witnesses from coming forward in a national jurisdiction are compounded in the international context. First, the inconvenience of going to trial, no small factor in a national context, is intensified in the ICC. No matter where a crime takes place, all ICC proceedings are held in the Hague. A victim must often make a long trip to a different country, even continent, where they know nobody. Moreover, the cultural shock may be substantial. A poor victim from the DRC, Kenya, or the Central African Republic may have never left the countryside before, never been on a plane, and may be unfamiliar with Western culture. These all present daunting considerations for a victim which are generally present to a lesser degree in a national context.

In addition, the social stigma of being a victim may be greater in ICC cases than in national cases. In a country such as the United States, rape victims are generally viewed with empathy and compassion. Although the sensitive nature of rape cases and need to encourage rape victim testimony led to the enactment of rape shield laws, there are no explicitly negative perceptions of rape victims in the US. When one has been raped in Western culture, there is generally no tarnish on one’s marriageability, social standing, or future opportunities. In general, rape victims are treated similarly to anyone else who has suffered from a violent crime—with pity, compassion, or support.

In many cultures outside of the Western world, however, a rape victim may suffer a severe social stigma. For example, in the DRC a raped married woman is viewed by many ethnic groups as an adulterer and is tainted, probably never to marry again. Younger girls become unmarriageable, and are often rejected by their families.34 Those who have been raped are seen less as victims of a crime and more as pariahs. Aside from psychological traumas, rape in such cultures radically changes a person’s life, social status, and future life. Especially where a rape victim is not publicly known as such, testifying could potentially destroy a witness’s life as they know it. Understandably, therefore, victims have a much greater disincentive to come forward than they do in a Western nation.

Because of the heightened social stigma which may attach if one voluntarily comes forward to testify at the ICC, it is important to take steps to mitigate such consequences. Since these problems are present to a far lesser degree in a national system, they may bear less on the decision to grant various victim protection measures. By contrast, in the context of the ICC it will be necessary to implement conditions such as witness anonymity, confidentiality, or other steps which may limit the defense’s right to cross examine witnesses, but which will reduce the barrier to voluntary testimony.

Conclusion

To sustain a conviction for mass rape in the ICC, the Office of the Prosecutor is faced with obstacles and requirements which are different from those in a domestic rape case. To begin with, a single victim’s testimony is much less central in a domestic prosecution than in a mass rape case at the ICC. While the necessity of a defense’s unimpeded right to cross examine is thus less extreme in the international compared with the domestic context, the need for heightened sensitivity to the needs of victims is greater. Unlike in domestic system, it is difficult for the ICC to locate victims, and it must rely on victims to voluntarily proffer their testimony. At the same time, the ICC lacks the same authority as a domestic system to compel witnesses to come to court of their own accord. Furthermore, there are greater risks in the international context to the security of victims, given the ICC’s limited witness protection capacity. Finally, victims may face greater burdens of social stigma in the ICC than in a national system.

The ICC thus has a greater need than a national court to mitigate barriers to victim testimony. In light of the lessened prejudice to the defense, and the greater barriers which prevent witnesses from testifying, it is appropriate and even necessary for the ICC to enact evidentiary rules which are different from those in a national system. These would provide increased protection for witnesses, such as confidentiality or anonymity. Such measures may reduce the burden on witnesses, and by extension on the prosecution, without overly undermining the position of the defense.

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

1. 1.

   See, e.g., Peter Murphy, No Free Lunch, No Free Proof, 8 J. Int’l Crim. Just. 539 (2010); Joseph L. Falvey, Jr., United Nations Justice or Military Justice: Which is the Oxymoron? An Analysis of the Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia, 19 Fordham Int’l L.J. 475 (1995); David Alan Sklansky, Anti-Inquisitorialism, 122 Harv. L. Rev. 1634 (2009). ↩

2. 2.

   See Id. ↩

3. 3.

   For the purposes of this comment, “mass rape” in the ICC context means rape as defined under the Rome Statute; that is, rape as a war crime or rape as a crime against humanity. ↩

4. 4.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute], art. 7(1). ↩

5. 5.

   Id. at art. 8(1). ↩

6. 6.

   Although mass rape is not necessarily a rare occurrence around the globe, it is certainly rare in stable nations with established justice systems, to which people generally compare the ICC. ↩

7. 7.

   In the US, only 8.3% of female rape victims identified more than two perpetrators. Although “gang rapes” consist of multiple perpetrators and occur in developed nations, they are generally prosecuted as a subset of simple rape. See Patricia Tjaden and Nancy Thoennes, Extent, Nature, and Consequences of Rape Victimization: Findings From the National Violence Against Women Survey, NIJ Special Report 12 (2006), available online. ↩

8. 8.

   B. Anthony Morosco, The Prosecution and Defense of Sex Crimes § 1.01[3][a] (Matthew Bender, Rev. Ed.) ↩

9. 9.

   Id. at § 1.10 [1][a]. ↩

10. 10.

    Id. at § 1.10[1][a]. ↩

11. 11.

    Jennifer L. Truman and Michael R. Rand, Criminal Victimization, 2009, National Crime Victimization Survey 7 (October 2010), available online. ↩

12. 12.

    Eugene Volokh, Research on False Rape Reports, The Volokh Conspiracy (April 15, 2005, 4:30 p.m.), available online. ↩

13. 13.

    Tjaden and Thoennes, supra note 7. ↩

14. 14.

    For the specific elements of the crime of mass rape, see International Criminal Court, Rules of Procedure and Evidence, 9 September 2002, ICC-ASP/1/3, 7(1)(g)-1 and 8(2)(b)(xxii)-1. ↩

15. 15.

    These may include, among other things, rape kits, forensic evidence, expert testimony, or witnesses that are not rape victims. ↩

16. 16.

    Indeed, many people for whom the ICC has issued warrants of arrest remain at large. Many remain in positions of power or have flouted their arrest, such as Omar al-Bashir, Bosco Ntaganda, and Joseph Kony. ↩

17. 17.

    The OTP’s safety policy ensures that the safety of investigators remains paramount. Prosecutor Luis Moreno-Ocampo has stated that the ICC “will face extreme challenges in attempting to investigate in a war zone. Ensuring the safety and security of my investigation teams is a fundamental priority.” Remarks by ICC Prosecutor Luis Moreno-Ocampo at the 27th meeting of the Committee of Legal Advisers on Public International Law—CADHI (Strasbourg , France), available online. Furthermore, in the Darfur investigation “[t]he Court’s ability to reach affected populations was complicated considerably throughout the reporting period because the Court was unable to operate in the Darfur region owing to security concerns.” International Criminal Court, Report of the International Criminal Court, ¶ 5, 35, U.N. Doc. A/62/314 (Aug. 31, 2007), available online. ↩

18. 18.

    Consider the 7 situations in which the ICC is currently conducting investigations. The US Department of State has issued travel warnings for all of them, with the exception of Uganda. See US Dep’t of State, Current Travel Warnings (April 4, 2012), available online. ↩

19. 19.

    Patrick Vinck, Phuong Pham, Suliman Baldo, and Rachel Shigekane, Human Rights Center, Payson Center for International Development, and International Center for Transitional Justice, Living With Fear: A Population-Based Survey of Attitudes About Peace, Justice, and Social Reconstruction in Eastern Democratic Republic of Congo, 47 (2008) (finding only 27% of survey respondents in the DRC had heard of the ICC). ↩

20. 20.

    The US has the highest rate of incarceration in the world, with 730 prisoners per 100,000 of the national population. Entire world—Prison Population Rates per 100,000 of the national population, International Centre for Prison Studies, available online. ↩

21. 21.

    Lydia Saad, Americans Express Mixed Confidence in Criminal Justice System, Gallup Politics, available online. ↩

22. 22.

    See Vinck et al., supra note 19. Many people in the DRC express frustration with the ICC for its long trials, failure to make arrests, and arbitrary issuance of arrest warrants. They often do not understand that the ICC cannot make arrests, the difficulties of obtaining evidence, or the factors to be considered in conducting a fair trial. ↩

23. 23.

    For example, a recent study found that in US gang prosecutions, 51% of prosecutors in large jurisdictions and 43% of prosecutors in small jurisdictions labeled witness intimidation as a major problem. Kerry Murphy Healey, Victim and Witness Intimidation: New Developments and Emerging Responses, NIJ: Research in Action (October 1995) 2, available online. ↩

24. 24.

    US Marshals Service, Witness Security Program (2012), available online. ↩

25. 25.

    Anne-Marie de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR, 232-233 (2005). ↩

26. 26.

    Rome Statute, supra note 4, art. 43(6), art. 57(3)(c), and art. 68. ↩

27. 27.

    Rules of Procedure and Evidence, supra note 14, at 16. ↩

28. 28.

    International Criminal Court, Summary Report on Protection of Victims and Witnesses Appearing Before the International Criminal Court [hereinafter cited as Summary Report] 7 (November 24, 2010), available online. ↩

29. 29.

    David Schwendimann, “Capacity Building: The Institutional War Crimes Legacy of the ICTY and the International Donor Community”, in Richard H. Steinberg (Ed.), Assessing the Legacy of the ICTY. Boston: Martinus Nijhoff, 2011, 218. ↩

30. 30.

    Summary Report, supra note 28, at 7. The UN forces in the DRC, MONUSCO, have expressed that the nation’s resources are not now capable of protecting large groups of people. ↩

31. 31.

    Juliane Kippenberg, Protecting Child Victims in Sexual Violence Trials in the DR Congo: Suggestions for the Way Forward, Human Rights Watch, available online. ↩

32. 32.

    Id. ↩

33. 33.

    Schwendimann, supra note 29. ↩

34. 34.

    Kippenberg, supra note 31. ↩