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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?”
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 different than for a domestic rape prosecution.
In a domestic rape case, lack of consent and the identity of the attacker are the key questions. In a mass rape case, the fact of the rapes and whether they were instigated by the defendant are the key questions. The defendant isn't accused of committing the rapes himself, but rather of ordering others to do so. In a mass rape case, it is unlikely that the victim will be able to establish that the defendant ordered the crime. Her actual attacker won't be on trial and will probably go free. The victim will not see her rapist receive punishment from the ICC. Victim "closure" in this situation seems dubious.
The idea that we owe it to the victims to let them testify in court comes from our experience in domestic rape cases. But mass rape is a different kind of crime; we need to think of both evidence and witnesses in a different way.