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- Cardon: The ICC only prosecutes high level perpetrators. Usually, these are "leadership" crimes; the defendant is accused of instigating mass rape, not of committing it himself. The actual rapist won't be sitting in the dock when the victim testifies about what happened to her. The crime of rape and the crime of mass rape are very different. In an ICC prosecution of mass rape, the victim's direct attacker won't be on trial. And the type of evidence that needs to be elicited for mass rape is far... (more)
- liss.ucla: Rape is a form of coercion, no question, and a key to recovery is re-empowering survivors. On the one hand, giving survivors the opportunity to testify helps them to process their stories and may act to validate their experience, as judge and attorneys will listen and, as a matter of professionalism, refrain from victim-blaming. Given that most if not all cultures stigmatize rape to some extent or another, as it may be hard to find that sort of validation within their own societies. However,... (more)
- Alma Pekmezovic: Perpetrators of mass rape must be brought to justice. Sexual violence, human trafficking and mass rape are regularly used as weapons in war. In some cases, it will be crucial for the prosecution to use evidence other than direct testimony of the victims. However, the use of such evidence should not deny victims the opportunity to be heard in court. Instead, such evidence should be considered in combination with other relevant factors and evidence. Professor MacKinnon raises some important... (more)
- nmoley: In using victims as witnesses to prove rape, the ICC obviously faces ethical issues of making victims relive their trauma or of putting victims in danger of stigma. However, even apart from these issues, witness testimony may be a suboptimal way of proving rape. Numerous studies in the US have indicated the fallibility of eyewitness testimony. Likewise, victims of mass rape may have distorted memories of the incident, which likely will have occurred years before the ICC tries the case. In... (more)
- Sean.Lowe: If the ICC is to allow a pro se party to defend herself, then this party must not be prevented from conducting cross-examination. For as we all know, cross-examination is a critical part of any trial -- much as the United States Supreme Court Crawford decision recognized. In cases involving any type of brutality, particularly rape, that poses a significant challenge to gaining participation of the victim and other witnesses. Cross-examination is tough enough without the alleged perpetrator... (more)
- Lee: I think Mr. Terzian correctly focuses on one of the two issues that to me seem to be the areas which should be discussed. It seems to me that the expert commentators largely agree that while the ICC can sustain a conviction for the underlying crime of mass rape without testimony from victims, ICC prosecutors should try to present survivor testimony whenever possible. This issue is more related ICC procedural issues, particularly "witness-proofing," as highlighted by Professor MacKinnon, and... (more)
- danterzian: Professor MacKinnon, you write that the Trial Chamber's decision on witness proofing "cuts survivors off from the support of lawyers." Without this support and in a foreign environment, you continue, these traumatized victims will be poor witnesses. My question is: Is this, or does this have to be, the case? The ICC's Victims and Witnesses Unit must already provide psychological support to these victims, and it seems that they may also be able to help them navigate this foreign legal landscape... (more)
- davidlee211: Professor MacKinnon raises an interesting point when she argues that by being sensitive to cultural stigmas attached to victims of rape and offering an alternative to direct victim testimony, one actually perpetuates those very stigmas. While this should be a critical consideration, it seems that Professor MacKinnon is positing a view that operates under an assumption of how gender bias and rape stigma should be understood, and not how they are actually understood today. Certain procedural... (more)
- davidmarselos: If there is evidence that can be used to identify the victim or victims of mass rape then those victims have a right to justice in the ICC if their domestic authorities have ignored or betrayed them regardless of whether they are to scared to do a testimony or not. In NSW Australia if civilians commit mass rape then the police usually act however if the police mass rape civilians the police who gang rape their victims have their crimes covered up by their work mates who investigate them. This... (more)
- munis: Although direct victim testimony would be of immense importance to the prosecution in proving the case of mass rape in the ICC it is often very difficult if not impossible to convince victims of rape to testify in open court owing to the severe stigma attached to rape in most societies. However the ICC can still sustain a conviction on mass rape by exploring different forms of evidence other than direct testimony from the victims. INTRODUCTION; Direct testimony from victims of rape has always... (more)
Comment on the Mass Rape Question: “Can the International Criminal Court sustain a conviction for the underlying crime of mass rape without testimony from victims?”
As highlighted by most of the experts, convictions for mass rape can and should be sustained without direct witness testimony. It is a factor that some victims do like to stand up and be counted. And part of the healing process for some victims is to make others aware of their experiences. This can also be motivation for prosecutors to hear true witness testimony with regards to their experiences.
But in cases before any legal forum there is always the inherent risk of reprisals. Particularly where commanders and state officials are implicated. And the more sophisticated the state the greater the risk of such reprisal. Witnesses run the risk of danger to themselves and dangers to their families. Along with the indignity of cross examination by defence council.
The frustrating part for any legal proffesional particularly in the ICC forum is that the majority of perpetrators of crimes within its jurisdiction are often not brought to account. Only their commanders are brought to account. This is the dfficulty of the whole notion of prosecuting in such cases. Commanders and state officials can order and have direct involment in ordering such attrocities, but can easily refute this by stating these things occur in war and conflict. It is the absolute difficulty in proving any responsibility within war crimes and crimes against humanity. It must be necessary or possibly allready is in effect. That those accused perpetrators brought before the court are administered Truth serum by prosecution teams to establish the facts during investigation. In any case before the court the horrors are to such a degree that simply possesing a knowledge of them should be enough to bring the command structure of these crimes to bear for the actions of them and their subordinates. Then the truth established using truth serums. Turning the whole process about and making it necassary for the accused to disprove their guilt. As in the ECHR Where the state is accused of murder and has behaved dilatory and failed to follow up leads or to readily take the accounts of agents of the state. The ECHR ensures there is a positive obligation on the state and the attention is transferred to the state and the burden of establishing absence of responsibility lies with the state. This principle should be adopted by the ICC.
To reiterate the critical factor of being a witness before ICC and how precarious your life and those most dear to you become. It has to be necessary also for the ICC to increase its powers under the Rome statute to protect witnesses of cases put before them. And also be more expeditious with regards to witness protection. If they deem it necassery for witnesses to testify in any such cases. Then they and the international community must enhance their witness protection program. Including where seemingly civilised countries are implicit within Crimes within the jurisdiction of the court. As stated the more sophisticated the country the greater their ability and prowess at covering any attrocities perpetrated by its agents.