II. Use of Pattern Evidence in Mass Sexual Violence Prosecutions

For a variety of reasons, it can be difficult to secure victim testimony in the wake of conflict. Sometimes there is an issue surrounding the physical safety of the victim, sometimes the victim is unavailable or otherwise indisposed towards making a voyage from his or her home country to the ICC in the Hague.8 If mass rape convictions were to require the testimony of victims—as would be the case in a domestic rape prosecution—then mass rape charges would be exceedingly difficult to sustain at the ICC.

In fact, mass rape prosecutions are different from simple rape in the domestic context because the ICC is not simply trying to determine if rapes occurred, but whether the rapes were part of a widespread and systematic attack committed with the knowledge or approval of commanders. Prosecuting these crimes requires that a connection be made between acts of sexual violence on the ground and the orders of commanding officers with troops in the area.9

Instead, the ICC can seek to sustain a conviction based upon pattern evidence, rather than direct victim testimony. Examples of pattern evidence would include: reports from domestic police agencies, reports from public health officials, statistical data from independent experts and any other relevant sociological data that would serve to shed light upon a given situation. This type of evidence would typically be provided by experts or others properly trained in gathering the right information. As such, expert witnesses could be called upon to confirm or reject the findings or methodology contained in any piece of pattern evidence.

The use of pattern evidence such as third-party reports from medical or forensic experts can be used to support charges of mass sexual violence where the alleged perpetrator was in charge of combatants who physically committed the acts.10 While pattern evidence would not be able to necessarily support individual sexual violence crimes, it could show that sexual violence was part of a “widespread and systematic” attack. Such a showing would tend to implicate commanding officers accused of acts or omissions which led to mass sexual violence.

This type of evidence would be admissible on the same rationale that allows for the admissibility of opinion testimony in prosecutions under the Anglo-American tradition. Although those parties offering opinion testimony were not present when the events took place, they are welcome to take the stand and give their view of events in light of expert knowledge. Here, such an expert could take the stand in a mass rape prosecution and offer his or her opinion about what proffered reports and documents tend to show.

Pattern evidence can include reports from third parties which provide statistical and other forensic information that tends to show that the crimes under investigation actually occurred. The ideal type of pattern evidence would be a set of reports made in the ordinary course of operations by a third party.

Use of pattern evidence has been used successfully in the past.11 The Office of the Prosecutor of the ICC used reports of rape to support its motion for an arrest warrant for those involved with the post-election violence in Kenya in 2007.12 In that case, statistics were gathered from the Kenya Police Crime Record and showed a sharp increase in the number of rapes during the period in question.13

III. Protections In The Use of Pattern Evidence in Mass Sexual Violence Prosecutions

In the ideal situation, the investigators or agents responsible for providing pattern evidence will be available to testify about the conclusions to be drawn from the evidence. They could be cross-examined and challenged on the sources of data used and their sources or methodology. However, we must consider situations in which reality strays from the ideal and determine what types of protections will provide the accused with a right to challenge pattern evidence being admitted into court.14

Expert testimony and the opportunity to cross-examine those responsible for preparing pattern evidence may not always be available. In this case, the ICC should provide greater protections against hearsay. Currently, the view on hearsay in international criminal proceedings is not well-established and in the ad hoc tribunals at the ICTY and the ICTR such evidence tends to be admissible as long as it can be shown to be probative. The idea behind such a liberal rule for admissibility is that since the evidence is being evaluated by judges, and not lay juries, its probative value and reliability might be more fairly determined.15

This protection—assuming that it does exist—would appear to be weaker in the case of pattern evidence. Pattern evidence would tend to be technical in nature, and without an accompanying expert, results and conclusions from the evidence could end up being misconstrued by the prosecution, the defense or the judge. One cannot assume that judges would be up to the task of fairly interpreting statistical analyses or collections of medical reports or epidemiological data submitted by counsel for any party.

Article 69 of the Rome Statute allows parties to submit documents or other written evidence as long as the evidence is not prejudicial to or inconsistent with the rights of the accused.16 Although it is not immediately clear what is meant by “inconsistent with the rights of the accused”, one approach might be to hold evidence to a set of principles analogous to the United States’ “business records exception” in which documents that would otherwise be hearsay are admissible under the hearsay rule if they are generated as part of regular business operations.

Applying the standards of the business records exception to pattern evidence would serve the necessary function of ensuring that the information provided to the Court is as unbiased as possible. For instance, if a credible international medical NGO or UN agency regularly creates reports dealing with instances of rape or proxy evidence of sexual violence (excess unplanned pregnancies, higher instances of sexually-transmitted diseases), then the Court should admit such evidence.17 Creating such a requirement would also tend to level the playing field between prosecution and defense, as such impartial evidence could be used to support or deflate the arguments of either side.

IV. Conclusion

This comment has briefly addressed the unique problems facing prosecutors seeking to charge episodes of mass sexual violence committed in conflict zones and how those challenges might lead to real difficulties in convincing victims to come forward and testify against the alleged perpetrators. Pattern evidence could provide a basis for securing a conviction where commanders acted or failed to act when mass sexual violence occurred.

Pattern evidence is not a panacea. Its use requires that the rights of the accused are considered and that the safeguards provided by the hearsay rule are provided in cases where documentary evidence is provided to support a conviction. Ideally, we do want an expert to testify to the utility of the data and be able to be challenged on the data, methodology and conclusions to be drawn from the data.

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

1. 1.

   This problem may be ameliorated to some degree by the use of video links between the main courtroom and stations in the field. However, being seen to cooperate with the International Criminal Court in even this manner might expose victim-witnesses to danger. ↩

2. 2.

   See, e.g., K. Alexa Koenig et al., Contextualizing Sexual Violence Committed During the War on Terror: A Historical Overview of International Accountability, 45 U.S.F.L. Rev. 911 (2011). The Rome Statute sets out a number of crimes that fit under the rubric of “mass sexual violence”—those classified as war crimes are set forth under Article 7, and similar provisions for classification as crimes against humanity are found under Article 8. 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], arts. 7 and 8. ↩

3. 3.

   Id. at 945 (pointing out that prosecutions for mass sexual violence tend to require that the acts were part of a “widespread and systematic” attack against a civilian population). ↩

4. 4.

   The hearsay rule is an established institution in the Anglo-American legal tradition and is based largely upon the right to challenge one’s accuser in a court of law. Similarly, the Rome Statue provides a general “right to examine” evidence presented, see Rome Statute, art. 67(1)(e). ↩

5. 5.

   Rome Statute, art. 69. ↩

6. 6.

   See David Admire, The International Criminal Court Revisited: An American Perspective, 15 Tex. Rev. L. & Pol. 339, 353-54 (2011). ↩

7. 7.

   See, e.g., William Schabas, An Introduction to the International Criminal Court, 312 (4th ed., 2011). ↩

8. 8.

   Christine M. Chinkin, Due Process and Witness Anonymity, 91 Am. J. Int’l L. 75, 76 (1997). ↩

9. 9.

   Kelly Dawn Askin, Gender Crimes Jurisprudence in the ICTR Positive Developments, 3 J. Int’l Crim. Just. 1007, 1011 (2005) (noting that in the Akayesu decision at the ICTR, Akayesu was held responsible for crimes committed in locations under his authority). Note also that the Rome Statute provides for prosecution via command responsibility in Article 28. ↩

10. 10.

    Article 69 allows admission of written documentation which is not “inconsistent with the rights of the accused”. See Rome Statute, art. 69. See generally, Michele Caianiello, Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models, 36 N.C. J. Int’l L. & Com. Reg. 287, 301 (2011). ↩

11. 11.

    Xabier Agirre Aranburu, Sexual Violence Beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases, 35 Law & Soc. Inquiry 855 (2010) (“Pattern evidence and analysis have been used successfully, mainly in the investigation of large-scale killings, destruction, and displacement; the use for sexual violence charges has been remarkably more limited.”). ↩

12. 12.

    K. Alexa Koenig et al., Contextualizing Sexual Violence Committed During the War on Terror: A Historical Overview of International Accountability, 45 U.S.F.L. Rev. 911, 945 (2011). See also, id. at 866. ↩

13. 13.

    Rome Statute, supra note 5, at art. 69. ↩

14. 14.

    Fair trial demands consideration of the rights of the accused, especially in atrocity cases. In the international criminal law context, Article 6(3)(d) of the European Convention on Human Rights provides: “Everyone charged with a criminal offence has the following minimum rights:…(d) to examine or have cross-examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” See European Convention on Human Rights, Article 6(3)(d). ↩

15. 15.

    There is resistance to this rule, however, on the grounds that judges are susceptible to the same types of biases and evidential fallibility that may beset a law juror. See Peter Murphy, No Free Lunch, No Free Proof the Indiscriminate Admission of Evidence Is A Serious Flaw in International Criminal Trials, 8 J. Int’l Crim. Just. 539, 540 (2010). ↩

16. 16.

    Caianiello, supra note 10. ↩

17. 17.

    Peter Murphy offers a similar prescription for the allowance of documentation provided by third-party expert witnesses. See Murphy, supra note 15, at 564. ↩