II. The Elements of the Crime Against Humanity of Rape

The ICC includes rape as a crime against humanity and as a war crime.10 This comment focuses on rape as a crime against humanity against civilians.11 The elements for the crime against humanity of rape are as follows:

1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.
2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage or a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.
3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.12

The first two elements (substantive elements) correspond to the actual acts of rape and the requirements to prove that the rape occurred.13 The third and fourth elements are “the two key elements” that “the prosecutor has to prove in order to take actions against rape as a crime against humanity, if not, it constitutes a crime under domestic law, and does not fall under the scope of the ICC.”14 Therefore, the last two elements make the acts of simple rape into a crime against humanity, which in turn gives the ICC jurisdiction. The following sections analyze each element and alternative forms of evidence that could be probative enough to fulfill the requirement.

A. Element 1: Invasion of the Body

Invasion of the body can be proven through testimony or documentary data gathered by doctors, psychologists, and other experts15 in areas where victims have allegedly been sexually attacked. These individuals come into contact with victims of rape through various means and in some instances arrive on the ground shortly after an attack occurs. A doctor could have medical data on her treatment of victims who sought medical assistance following a mass rape.16 This medical data, treatment offered, and physical and mental evaluations can be strong evidence in cases of rape, particularly when collected over a short period of time and in large numbers following a known or suspected attack.17 Medical data on sexual violence was previously provided by hospitals in Kenya following the post-election violence in 2007-2008, where the Nairobi Women’s hospital and other local partner hospitals took in over 900 sexual violence cases in the span of a couple of months.18

Medical data, especially when systematically kept, can include physical evaluations of a patient, including indicators of penetration by a sexual organ or other objects. The first element of the crime of rape only requires invasion of the body “resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator.”19 This low threshold should be readily ascertainable to doctors, who could report on all the victims of rape they treated. Furthermore, proxy data can be used as circumstantial evidence to supplement other medical data in proving that rapes were committed.20 Proxy data is “[d]ata related to the consequences of sexual violence…including outliers in pregnancy, sexually transmitted infections, traumatic symptoms, abortions, and consumption of certain drugs or tests.”21 This type of information is highly relevant and can aid in proving the two substantive elements of rape (invasion of the body through force or threat of force). Proxy data can be collected not simply from doctors, but also from NGOs, psychologists, police officers, and other international and national organizations. The limits of this type of data should be acknowledged as it might be deemed too attenuated. However, it may still serve to supplement other evidence with greater probative value.

Additionally, the ICC can encourage doctors who are willing to testify regarding the victims of rape they treated by employing the safeguards afforded to witnesses in ICC trials. Doctors could testify to their objective evaluation and physical examination of victims in addition to the information given to them by the victims regarding the attack.22 Documentary evidence reporting a large number of invasions of the body within a short time frame following a known or suspected attack would be a strong indicator of mass rape. This would be further strengthened when doctors or other experts treating the victims are willing to come forward and testify to their treatment and evaluation of victims.

B. Element 2: Force or Threat of Force

The second substantive element of rape requires that the invasion be committed by force, threat of force, by taking advantage of a coercive environment or against a person incapable of giving genuine consent.23 Similar to the first element, this element can be proven using pattern evidence from doctors, psychologists, non-governmental organizations, police officers, other experts and eyewitness testimony. Many of the strategies pointed out above likewise apply to proving that force or threat of force was involved, and that the victim was thus raped. There are some additional factors that can supplement the evidence that force or threat of force were involved.

Many of the rapes that occur are extremely violent24 and can leave lasting physical and emotional injuries. This information, included in medical reports or testimony by doctors, would evidence the use of force during an attack. Furthermore, this information can also be found in police reports. In Kenya, the ICC used pattern evidence by relying on Kenya Police Crime Records where there were 876 cases of rape and 1,984 of defilement in 2007.25 These medical and police reports can be used by the prosecution to show force, especially when the reports indicate an extraordinary amount of rapes in a short period of time.

NGOs that regularly admit and interview victims of sexual violence can also be sources of evidence. Victims might feel safer speaking to NGOs that are present in their communities about their experience, which would give NGOs valuable information regarding rapes that have occurred. In addition, some NGOs actually go out into villages that have been attacked and document the physical injuries and destruction that has occurred. This type of information, if properly and systematically collected, could be useful in showing force.

Witness testimony by those who may not have been victims of rape can also be valuable in proving this element of the crime. For example, a civilian may have been able to hide during an attack, but still witnessed the force used by the perpetrators. This individual could be essential to establishing this element of rape, even if they did not witness the actual rapes.

C. Element 3: Widespread or Systematic Attack

Once the first two elements are fulfilled and the act of rape has been proven, it is necessary to establish that the conduct was part of a widespread or systematic attack against civilians. This element goes to making the rapes grave enough to come under the jurisdiction of the ICC, which aims to prosecute the worst offenders of crimes against humanity.26

Prosecutor Moreno-Ocampo has expressed interest in alternative methods developed by social scientists, including statistical analysis, to refine the tools used by the ICC.27 An alternative method to proving that an attack was widespread or systematic is pattern evidence.28 Pattern evidence can be shown for international crimes with a large number of incidents by looking at certain common features, including the profile of the alleged perpetrators, the profile of the victims, the geographical and chronological distribution of the crime, and the modus operandi in the commission of the crime.29 Pattern evidence, such as expert testimony, statistics and crime mapping, has previously been used in other mass crimes, though its use has been very limited in sexual violence crimes.30 Using these methods to prove the elements of rape could be an alternative way of arguing a case without having to bring victims into a trial and forcing them to relive their trauma.31

Pattern evidence can include reports from doctors, police, and NGOS surveyed over time. For example, if medical records show a higher than normal incidence of rapes clustered around a particular time, this tends to show that it was widespread. This is especially true if the reports follow the date of a known attack. If this type of data is available consistently and simultaneously with attacks, this is further proof of the systematic nature of these rapes. The more these reports are surveyed over time and coincide with each other, the more they can help establish the systematic nature of the crimes.

Other types of evidence that would be highly probative are the documentation of attacks, policies to rape civilians, or the lack of policies forbidding sexual violence against civilians. Any records and documentation similar to those kept by the Germans during the Holocaust32 would highlight that the rapes were committed as part of a widespread or systematic attack. Unfortunately, most perpetrators sought by the ICC do not leave paper trails: if they do have a policy condoning sexual violence, it is not written down. However, in cases where documentary policies or records are encountered, they are of great value, as shown during the Nuremberg trials, and could be used as evidence to prove this element as well as the fourth element below.

Furthermore, former combatant testimony can also help satisfy this element of the crime. Although this may be difficult to obtain, the ICC could seek to cooperate more extensively with the UN when the UN is involved in a country where mass rapes have occurred. For example, in countries such as the Democratic Republic of Congo, the UN peacekeeping forces (MONUSCO) engage in demobilizing and repatriating ex-combatants. In this process, MONUSCO could work with the ICC to supply volunteers who are willing to testify regarding internal policies or orders that were given. This type of testimony could be highly probative if acquired in certain conflict zones like the DRC, and if there were more cooperation between the UN and the ICC, this evidence might be more readily attained.

D. Element 4: Mens Rea

A perpetrator must have knowledge or intend that the conduct be part of a widespread or systematic attack against civilians. In arguing the mens rea in the crime against humanity of rape, the prosecution can argue dolus eventualis, or indirect intention.33 The argument is that “rape is commonly known as a systematic way of spreading fear and terror within the civilian population” and that the accused, whether or not intending to do so, “accepts the consequences that he/she could be part of this policy, especially when committed in times of armed conflicts.”34 Put another way, the knowledge and acquiescence of rape being used by armed groups under the perpetrator’s control is an indicator of the requisite mens rea.

Furthermore, the types of evidence discussed to prove the third element of rape could also potentially work to prove the mens rea element of rape. When rapes are continually occurring during attacks, the accused, even if they are not themselves committing the rapes, cannot be deemed ignorant of these actions. Knowledge becomes more and more evident as the media, NGOs, and other parties publicize the mass rapes that occur during attacks. Hence, by acquiescing to these “spoils of war,” they satisfy the mens rea component and accept the consequences of these rapes. In essence, combining the indirect intention argument with evidence presented to prove that the rapes were a part of a widespread or systematic attack helps establish the mens rea element.

III. Conclusion

In conclusion, direct victim testimony is not indispensable to a prosecution’s case if there are alternative forms of evidence sufficient to establish the four elements of rape. International tribunals have moved in the direction of protecting victims when testifying. The ICC moved even further by including rape as a crime against humanity, when no other international statute had previously done so. Given this higher awareness and acceptance of sexual violence as a crime warranting international condemnation, a case with the right kind of alternative evidence probative beyond a reasonable doubt is plausible, even without direct victim testimony.

To accomplish this, the ICC would need to reorganize the way it conducts investigations and collects evidence. The ICC would have to work with doctors, NGOs, local law enforcement, the UN, and other actors on the ground to ensure accuracy in the systematic gathering of alternative evidence. This collaboration would then enable the ICC to prove the crime against humanity of rape without relying on direct victim testimony. This would not only help safeguard victims, but also enable the ICC to seek prosecution whenever direct victim testimony is unavailable.

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

1. 1.

   See Kristen Boon, Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy, and Consent, 32 Colum. Hum. Rts. L. Rev. 625 (2001); see also John Hagan, Richard Brooks, and Todd Haugh, Reasonable Grounds Evidence Involving Sexual Violence in Darfur, 35 Law & Soc. Inquiry 881 (2010). ↩

2. 2.

   See Prosecutor v. Akayesu, Judgment, ICTR-96-4-T (Sept. 2, 1998), available online; Prosecutor v. Furundzija, Judgment, IT-95-17/1 (Dec. 10, 1998), available online; see also Rebecca L. Haffajee, Prosecuting Crimes of Rape and Sexual Violence at the ICTR: The Application of Joint Criminal Enterprise Theory, 29 Harv. J.L. & Gender 201 (2006). ↩

3. 3.

   See 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], article 7. ↩

4. 4.

   Id. at art. 8. ↩

5. 5.

   Pillay has previously served as a judge of the ICC and as the President of the ICTR. ↩

6. 6.

   See Hagan, supra note 1, at 882. ↩

7. 7.

   Id.; see also Xabier Agirre Aranburu, Sexual Violence Beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases, 35 Law & Soc. Inquiry 855 (2010), an earlier version of this article is available online. ↩

8. 8.

   See Patricia M. Wald, Dealing with Witnesses in War Crime Tribunals: Lessons from the Yugoslav Tribunal, 5 Yale Hum. Rts. & Dev. L.J. 217 (2002) (discussing that the ICTY’s old rule expressing a preference for live testimony was replaced by a new rule that allows written statements in lieu of oral testimony under certain circumstances). ↩

9. 9.

   See Rome Statute art. 66(3). This standard and the Rules of Procedure and Evidence help safeguard the fairness and due process rights of the defendant. ↩

10. 10.

    See Rome Statute art. 7-8. ↩

11. 11.

    Note that the difference generally between rape as a crime against humanity and as a war crime is that the former does not require a connection with an armed conflict under the Rome Statute whereas the latter requires an internal or international armed conflict. ↩

12. 12.

    International Criminal Court, Elements of Crimes, ICC-ASP/1/3 (part II-B), Adopted and Entry into Force 9 September 2002, updated at Kampala, 31 May–11 June 2010 [hereinafter cited as Elements of Crimes], available online. ↩

13. 13.

    Supra note 3. ↩

14. 14.

    Nicole Brigitte Maier, The Crime of Rape under the Rome Statute of the ICC: With a Special Emphasis on the Jurisprudence of the Ad Hoc Criminal Tribunals, 3 Amsterdam Law Forum 146, 153-54 (2011). ↩

15. 15.

    Hearsay evidence is allowed in international criminal law. This could mean that psychologists and other experts not directly treating the victims medically may be able to testify regarding the victims’ statements. See Hagan, supra note 1, at 890-91. ↩

16. 16.

    Note that in many cultures, victims of rape are stigmatized and do may not seek medical attention. This could pose a problem of obtaining a sufficient amount of rape cases through medical data. See id. ↩

17. 17.

    The victim identities could be protected in cases where medical data is used to prove invasion of the body. In these cases, doctor testimony or records indicating the extent of the invasion gets rid of the necessity of victim testimony regarding the invasion. ↩

18. 18.

    See K. Alexa Koenig, Ryan S. Lincoln, and Lauren E. Groth, Contextualizing Sexual Violence Committed during the War on Terror: A Historical Overview of International Accountability, 45 U.S.F.L. Rev. 911, 945-47 (2011); see also Agirre, supra note 7, at 866. ↩

19. 19.

    See Elements of Crimes, supra note 12. ↩

20. 20.

    See Agirre, supra note 7. ↩

21. 21.

    Id. at 867. ↩

22. 22.

    See supra note 15 (Hearsay evidence is allowed in international criminal law.) ↩

23. 23.

    See Elements of Crimes, supra note 12 (note that consent is elaborated by the Elements of the Crime and by Rule 70 of the Rules of Procedure and Evidence). ↩

24. 24.

    See Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, 8 Int’l Crim. L. Rev. 55, 63-65 (2008) (discussing the horrific acts of rape and sexual violence for which Sylvestre Gacumbitsi was tried). ↩

25. 25.

    Koenig et al., supra note 18, at 945. ↩

26. 26.

    Elements of Crimes, supra note 12. ↩

27. 27.

    Hagan, supra note 1, at 882. ↩

28. 28.

    See Agirre, supra note 7; Hagan, supra note 1. ↩

29. 29.

    Id. at 856. ↩

30. 30.

    Id. ↩

31. 31.

    Sarah Louise Steele, Victim-Witnesses in the International Criminal Court: Justice for Trauma, or Trauma for Justice?, 12 Austl. Int’l L.J. 99 (2005) (arguing that although some victims cope and feel a sense of empowerment through testifying, many others in cases where gross violations have occurred experience further trauma through the legal process.) ↩

32. 32.

    The Allies found incredible amounts of incriminating Nazi orders and directives that served as documentation of Nazi leaders’ plans and programs. See Patricia M. Wald, To ‘Establish Incredible Events by Credible Evidence’: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings, 42 Harv. Int’l L.J. 535 (2001). ↩

33. 33.

    Maier, supra note 19, at 154-55. ↩

34. 34.

    Id. at 155. ↩