The Sexual and Gender-Based Violence Question — Comments

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Comment on the Sexual and Gender-Based Violence Question: “How can the ICC OTP secure better cooperation from first responders and those working on the ground with victims and survivors to assist in the investigation and prosecution of Sexual and Gender-based Violence (SGBV)?”

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emilygiven
4907
April 11, 2016
9:08 pm

Sexual Slavery and Human Trafficking: Promising Targets for OTP Collaboration with First Responders and Prosecutions of Sexual and Gender-Based Crimes

I. Introduction

In February of 2014, the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) released a Draft Policy Paper on Sexual and Gender Based Crimes, announcing that it “has elevated this issue to one of its key strategic goals” and that it aims “to put an end to impunity for sexual and gender based crimes of concern to the international community as a whole.”1 This release has widely been received as an important step in the development of OTP policy, and potentially in the ICC’s jurisprudence.2

But the Draft Policy also expresses a clear recognition that OTP will face serious challenges in attempting to prosecute these crimes.3 Among these challenges is a core evidentiary challenge: How will the OTP obtain sufficient evidence to secure convictions for these crimes, given that they often, if not always, arrive on the scene well after the crimes in question have been committed, and such evidence is fleeting? A plausible answer to this question is that OTP will have to identify those who are on the ground when these crimes are committed, and secure their cooperation. In other words, only if first responders, NGOs, and others already working with victims are willing to assist with the provision of evidence are OTP prosecutions for SGBC likely to succeed.

This Comment argues that the willingness of NGOs and other first responders to cooperate with investigations is likely to differ greatly depending on the kind of sexual or gender-based crime that the organization is centrally concerned with. In particular, whereas first responders who are centrally concerned with crimes like mass rape may be quite unlikely to assist with OTP prosecutions, first responders centrally concerned with crimes of sexual slavery and human trafficking may well be more likely to cooperate. Rather than being a project that would necessarily interfere with the NGO’s core goals, as it arguably is for NGOs that address mass rape, successful prosecution is often one of the constitutive aims of organizations dealing with trafficking. Because such organizations have at least some history of aiding prosecutions, albeit often domestic ones, the OTP should consider prioritizing prosecutions for these crimes and pursuing cooperation with such organizations as a means of pulling them off.

If nothing else, the OTP should remain aware that crimes like mass rape are not the only sexual and gender-based crimes that come under the Court’s jurisdiction—in choosing which crimes to prosecute, the Office would do well to attend to the differing likelihoods that first responders addressing differing crimes will cooperate with their efforts. Rather than first identifying particular crimes and then looking for cooperative organizations with which to partner, OTP should begin by identifying potentially cooperative partner organizations, and then working with them to identify and collect evidence of particular crimes.

II. Sexual and Gender-Based Crimes Under the Rome Statute

While paradigm cases may come to mind all too easily, it’s not entirely obvious what counts as the kind of sexual and gender-based crime that would fall under the Court’s jurisdiction. The Draft Policy directs its audience to various clauses of the Rome Statute, at least some of which are clear and explicit. And yet a systematic categorization of sexual and gender-based crimes (SGBC) is more or less absent from the Draft Policy itself. Such clarity has the potential to ease communications between OTP and those on the ground, and to remind OTP of the vast diversity of the crimes in question. When looking to identify partner organizations that might assist with the provision of evidence, such a reminder may well be useful.

In sum, the Draft Policy seems to distinguish SGBC themselves, from crimes that can have sexual or gender-based elements.4 SGBC themselves are defined “[i]n accordance with the Statute, [as] those listed under article 7(1)(g), 8(2)(b)(xxii) and 8(2)(e)(vi) and elaborated upon in the Elements in relation to ‘sexual violence.’”5 And crimes that can have sexual or gender-based elements include things like “mutilation and outrages upon personal dignity under articles 8(2)(b)(x), 8(2)(b)(xxi), 8(2)(c)(i), 8(2)(c)(ii).”6 Examining the relevant articles of the Rome Statute,7 the following categorization of SGBC emerges from the Draft Policy:

Table 1. Categorization of SGBC from Draft Policy
SGBC	Crimes Against Humanity	7(1)(g)	rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or other sexual violence of comparable gravity
	War Crimes	8(2)(b)(xxii); 8(2)(e)(vi)	sexual violence also constituting a grave breach of the Geneva Conventions, or a serious violation of article 3 common to the four Geneva Conventions
Crimes with Possible SGB Elements	War Crimes	8(2)(b)(x)	subjecting persons…to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons
		8(2)(b)(xxi); 8(2)(c)(ii)	outrages upon personal dignity, in particular humiliating and degrading treatment, including when committed against persons taking no active part in the hostilities
		8(2)(c)(i)	when committed against persons taking no active part in the hostilities… [v]iolence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture

The Draft Policy also clarifies that, in addition to the traditional actus reus and mens rea components, the elements that will have to be proved to show that an SGBC has occurred include that the conduct in question “was of a gravity comparable to the other offences,” presumably meaning those that are antecedently understood to be crimes against humanity and war crimes.8

The categorization above should make clear just how varied and heterogeneous the crimes that the Draft Policy makes a priority truly are. Mass rapes engaged in during war-time, though no doubt prevalent and particularly grievous, are certainly not the only sexual or gender-based crime that the Court would have jurisdiction to prosecute. Thus, in seeking out potentially cooperative organizations with which to partner, OTP should keep this variety in mind.

III. Human Trafficking, Sexual Slavery, and First Responders

Among the NGOs it would be wise to take a look at in addition to those that deal with mass rapes during times of war are NGOs addressing sexual slavery, forced prostitution, and human trafficking. Since these crimes are categorized as crimes against humanity rather than war crimes, they will fall under the Court’s jurisdiction even where they are engaged in outside of a context of war, so long as they are sufficiently systematic and or grievous as to satisfy the gravity threshold.9 And first responders and NGOs centrally concerned with crimes of sexual slavery and human trafficking may be particularly willing to cooperate with OTP investigations.

Successful prosecution is often explicitly listed among the aims of those organizations that deal centrally with trafficking. For example, The Asia Foundation, an NGO working to advance mutual interests in the United States and the Asia-Pacific Region, has begun to develop and execute a strategy for combatting human trafficking in Thailand “designed to protect the rights of victims, to provide them with the services they need, and [to] secure the conviction of traffickers.” (emphasis added.)10 And as another example, The Visayan Forum, a Philippine-based NGO working to end modern-day slavery, explains in its handbook entitled Lessons Learned from the Successful Prosecution of Human Trafficking Cases in the Philippines:

This Handbook is intended for those who play an indispensable role in the prosecution of trafficking cases in the Philippines, namely, law enforcers, investigators, and prosecutors. It is also addressed to non-government organizations that support government agencies in investigating and prosecuting trafficking cases, and providing victim assistance. It is hoped that by learning from the practices and strategies used in successful cases, other cases may benefit and be more likely to result in convictions.11

The bare fact that anti-trafficking NGOs explicitly aim at prosecuting perpetrators suggests quite strongly that they are generally willing to cooperate with legal investigations—at least insofar as they can do so without compromising their other aims—even absent any actual history of having done so.

But furthermore, such organizations have at least some demonstrated history of aiding prosecutions for human trafficking and sex trafficking, albeit often domestic ones. The Asia Foundation, for example, describes having worked with at least twenty-five victims of trafficking in the northern parts of Thailand to testify against perpetrators at trial.12 By coordinating the efforts of doctors, interpreters, social workers, and eventually lawyers, the Foundation has had some success enabling victims to provide much-needed testimony.13 And as still another example, lawyers from a local office of International Justice Mission, a U.S.-based NGO combatting trafficking, are reported to have assisted with successful trafficking prosecutions in the Philippines.14

These examples make clear that at least some anti-trafficking organizations not only conceive of their project as including the eventual prosecution of perpetrators, but also have a demonstrated history of cooperating with legal authorities in such prosecutions. Of course it doesn’t directly follow that such organizations will be willing or able to assist the OTP in particular with its investigations—it may turn out that these NGOs’ willingness to cooperate is somehow contingent on the domestic nature of the prosecutions with which they’ve assisted, or that the evidence they’re able to provide will not be of a nature that the OTP can use. But at a minimum, the examples suggest that there are promising leads to pursue. If cooperative, on-the-ground organizations that are willing and able to provide evidence is what the OTP thinks it needs in order to prosecute sexual and gender-based crimes, then looking to establish partnerships with anti-trafficking NGOs on the ground in nations where such crimes are occurring in a systemic and grievous fashion would be a sensible place to start.

IV. Conclusion

This Comment has argued that the OTP may have its strategy in prosecuting sexual and gender-based crimes backward. OTP must of course follow the evidence it has available to it in choosing which cases to pursue. But I’ve suggested that in gathering such evidence, the Office would do well to keep its partnerships in mind from the very beginning. Rather than seeking out cooperative organizations on the ground only after hearing about some particular crime, the Office might instead partner first with organizations that are particularly likely to be helpful in eventual prosecutions, and prioritize those crimes that such organizations can reliably provide evidence of.

Further, OTP should keep in mind as it engages in this search for NGO partners that there are very many distinct SGBC that come under the Court’s jurisdiction. In light of this fact, OTP should seek out partnerships with those organizations whose missions render them likely to be cooperative. This Comment has suggested that NGOs working to combat human trafficking and sexual slavery seem to be promising candidates.15 Because anti-trafficking organizations often see their mission as crucially involving the prosecution of perpetrators, and because they have demonstrated histories of assisting with such prosecutions, OTP may well be able to establish fruitful partnerships with them. In so doing, the Office may thus begin to make good on their Draft Policy’s commitment to ending impunity for the SGBC that have too long gone unaddressed at the international level.

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

1.
Office of the Prosecutor, International Criminal Court, Draft Policy on Sexual and Gender Based Crimes (2014), available online, archived [hereinafter Draft Policy]. ↩
2.
See, e.g., Thobeka Mayekiso, A Glimmer of Hope for Victims of Sexual and Gender-Based Crimes in Africa, Relief Web (Apr. 14, 2014), available online; Aisling Swaine, Addressing Gender Equality and Gender-based Crimes at the International Criminal Court, global.gender.current (Mar. 5, 2014), available online; REDRESS, Comments on the OTP Draft Policy Paper on Sexual and Gender Based Crimes (Feb. 2014), available online; Refugee Law Project, Comments on the ICC Draft Policy Paper on Sexual and Gender Based Crimes (Feb. 23, 2014), available online. ↩
3.
See Draft Policy, supra note 1, at 3.

(“In addition to general challenges to investigations by the Office, such as security issues related to investigations in situations of on-going conflict and a lack of cooperation, the investigation of sexual and gender based crimes presents its own specific challenges.”) ↩
4.
Draft Policy, supra note 1, at 8. ↩
5.
Id. ↩
6.
Id. at 8-9. ↩
7.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute]. ↩
8.
Id. at note 9. ↩
9.
See generally Jane Kim, Prosecuting Human Trafficking as a Crime Against Humanity Under the Rome Statute, Colum. C. for Gender & Sexuality L. (Mar. 6, 2011), available online. ↩
10.
The Asia Foundation, Combating Trafficking of Women and Children in Thailand (May 2005) [hereinafter Combating Trafficking], available online. ↩
11.
Visayan Forum Foundation, Lessons Learned from the Successful Prosecution of Human Trafficking Cases in the Philippines, p3 (2012) available online. ↩
12.
Combating Trafficking, supra note 10, at 2. ↩
13.
Id. ↩
14.
New Conviction Boosts Fight Against Human Trafficking, IRIN, Dec. 2, 2008, available online. ↩
15.
HumanTrafficking.org has a particularly thorough listing of such organizations, organized by country, although it is not clear that it is still being updated. It lists prominent NGOs in several nations that are signatories to the Rome Statute, including Australia, Cambodia, Japan, Mongolia, New Zealand, and the Philippines. See humantrafficking.org: A web Resource for Combating Human Trafficking, available online (last visited Apr. 5, 2016). ↩

Ilka Garkisch
4908
April 13, 2016
10:17 am

What about Sexual and Gender-Based Violence or other crimes committed by officers of International Organisations? ICC officers included of course. For instance sexual harassment is an interesting topic or power games with (former) staff members. Are female staff members safe from transgressions? If not, which steps can they take? The Law must apply to everyone. Fight impunity.

John Litwin
4909
April 18, 2016
9:01 am

Forget First Responders: The Office of the Prosecutor and Self-Sufficiency in Sexual and Gender Based Crimes Investigations

I. Introduction

In it’s draft “Policy Paper on Sexual and Gender Based Crimes” of February 2014, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) illuminates many of the severe challenges unique to the investigation and prosecution of sexual and gender based crimes.1 Of the potential solutions the OTP proposes, it repeatedly emphasizes the need to foster cooperation with domestic agencies and domestic and international nongovernmental organizations (NGOs). It states, “international and local NGOs are often first-responders to incidents of sexual and gender-based violence, undertake documentation of such crimes, and provide significant medical, psychosocial and material support to victims.”2 Therefore, the OTP states it intends to “work towards building a network with these organizations in order to enlist their assistance and support in efforts to reach out more to the victims.”3

While it is easy to see the appeal in harnessing the resources and efforts of NGOs on the ground when collecting evidence of sexual and gender based crimes, the draft policy paper does not discuss the substantial potential hurdles of relying on these first-responders. The fact that the evidence-gathering techniques used by NGOs could render it useless to the OTP or their unwillingness to partner with a political body such as the ICC are just several of the potential issues that could prevent the OTP from building an effective network of first-responders with which to work.

Given these challenges, it is imperative that the OTP recognize that it may be unable to secure the effective cooperation of NGOs and domestic agencies on the ground. Therefore, the Office must develop strategies for evidence gathering for sexual and gender based crimes it can employ on its own initiative. These strategies must combat the challenges involved in interviewing witnesses and victims, as well as gathering physical and forensic evidence.

II. Interview Challenges

A. Challenges

Due to the challenges in collecting physical evidence in the case of international sexual and gender based crimes, as discussed below, the interviewing of witnesses and victims is always an important, and sometimes the only means of collecting evidence. Unfortunately due to the traumatic and gendered effects inherent in sexual violence, interviewers must navigate serious challenges and risks when conducting interviews. To begin with, most interviewers tend to be male,4 while the majority of victims of sexual crimes are female.5 As “witnesses are generally more comfortable talking to people of the same gender,”6 this can cause discomfort for victims and witnesses that may have already suffered through horrific ordeals, and decrease their willingness to cooperate with the investigation.

In fact, the traumatic nature of sexual and gender based crimes itself leads to several problems for interviewers. To begin with, survivors of trauma may experience, as “memory problems which can affect credibility in the courtroom occur with PTSD, specifically with ‘dissociation’…they simply do not remember the details.”7 This can be compounded by the fact that investigations of international crimes often take on a historic aspect. For example, the the Bemba trial took place several years after the event,8 leading to concerns regarding witness reliability. Furthermore, even when the subject is able to remember the details of the event, the interviewer runs the risk of retraumatization of the victims, and “just recounting the story [may be] enough to trigger uncontrollable tears, panic attacks, or flashbacks of the event,”9 not only causing them great personal suffering, but potentially making them unwilling or unable to provide further reliable testimony.

Even when a victim or witness is able to cooperate with the investigation of the OTP, the investigators must then grapple with the significant risks imposed by the community. First, the stigma associated with sexual and gender based crimes can often be severe, and were an individuals status as a victim made public, they may then be subjected to “shame, guilt, and blame”10 by the community. the physical safety of the witnesses may even be an issue. This is demonstrated by the situation regarding the ICC’s investigation in Kenya, where there is substantial domestic opposition to the investigation, without preserving the anonymity of the witness it may be “difficult to assure others that they are their family members will be safe…it’s not just the nuclear family: there are aunts, uncles, cousins.”11 Without considering all of these factors the OTP will be unable to conduct useful interviews in the absence of aid from domestic and international first responders.

B. Solutions

Although substantial, the challenges posed by interviewing victims and witnesses of sexual and gender based crimes can be overcome by the OTP, even in the absence of assistance from other first responders. As a preliminary step, the OTP should strive to achieve gender balance, or perhaps even institute teams with a majority of women. As subjects are generally more comfortable interviewing with someone of the same sex, this will facilitate comfort in the interview process and will likely result in more openness and full disclosure during the interview.

Additionally, the OTP must institute standard investigations and guidelines training for its investigators. This will alleviate several of the difficulties associated with interviewing victims of sexual and gender based violence. First, it will alert interviewers of the risk of retraumatization and give them the techniques to minimize this risk. Secondly, it will enable interviewers to most efficiently conduct interviews, both ensuring that the most useful information is achieved while also minimizing the necessary contacts between the subject and the investigator, helping to preserve their anonymity, as “multiple interview processes [can] expose victims/witnesses to the risk of re-traumatization and can potentially create issues with the consistency of their testimony.”12

Guidance on the structure of this standard investigation protocol can be gained from a survey of the various specialized sex crimes investigation units in the United States,13 as well as in the recommendations set out by the International Criminal Tribunal for Rwanda.14 By implementing these techniques, the OTP will be able to conduct interviews in a safe, efficient, and ethical manner without the aid of other first responders.

III. Physical Evidence Challenges

A. Challenges

Even when interviews are able to be effectively conducted without the aid of other domestic and international first responders, the OTP will still have to grapple with the challenges of collecting forensic evidence. Forensic evidence can be especially difficult to collect and analyze in cases of sexual and gender based crimes, as opposed to other crimes under the jurisdiction of the ICC. Unlike the mass killings that characterized the 1994 Genocide in Rwanda or events such as the Srebrenica Massacre, sexual assault does not generally leave behind a body with identifiable wounds that enable the crime to be pieced together. Instead, if any DNA evidence such as semen is left by the crime, its usefulness decreases sharply after about seventy-two hours.15 These problems are compounded by the fact that international investigations and trials often have a historic aspect as stated above, and may take place months or years after the events originally occurred.

Even in a case where viable DNA evidence is able to be collected, its analysis still requires the proper equipment and properly trained personnel. The collection and analysis of forensic evidence can be very expensive, as “it requires an equipped laboratory, trained technicians, and constant supply and maintenance. Where a forensic laboratory is underfunded or lacks properly trained personnel, forensic analysis capacity may be minimal or unreliable.”16 As many of these atrocities tend to take place in remote regions of very poor nations, this is unlikely.17

Finally, the stigma associated with crimes of sexual violence may also impact the availability of forensic evidence, as a victim may be unwilling to file a police report knowing their condition as victimized may be made public. Furthermore, victims may be unwilling to submit to further police examination after their medical examination has been concluded.

B. Solutions

Because many of the challenges of collecting forensic evidence in cases of sexual and gender based crimes stem from the stigma associated with sexual violence and the limited economic resources of the regions violations predominantly occur in, the ICC must continue its capacity-building efforts across its jurisdiction if it hopes to be able to effectively conduct investigations without the aid of other first responders. One way in which this could be implemented would be to encourage the streamlining of domestic medical and legal examination process. Whereas in many jurisdictions the medical and legal examinations are completely separate,18 by combining these procedures into a single unified examination victims would be less likely to not follow up a medical examination with a legal one, while reducing their overall number of contacts with an investigative body. This would have the double effect of helping to preserve their anonymity and preventing the stigma associated with sexual victimization.

This would also make it more likely that forensic DNA evidence would be collected in the first place. While the OTP may not be able to access these domestic records in the face of total opposition to the ICC by domestic agencies, it would still increase the likelihood that the evidence would be collected in the first place, allowing for it to be collected without the additional aid of other NGOs.

Another step would be to speed up the process of initiating OTP investigations. By being more proactive in initiating investigations the OTP will increase the likelihood of obtaining forensic evidence first-hand, and would not be reliant on obtaining records of domestic agencies of past crimes.

However, if the OTP were to face total opposition from domestic agencies and NGOs in the collection of forensic evidence, it may be that the only viable solution would be to increase the scope evidence relied on in a prosecution. As observed in the Bemba trial, “many patients say ‘the physical scars heal but the emotional scars stay with me.’”19 By focusing instead on pattern evidence and psychological evidence20 obtained from the interviews following the procedures outlined above, the OTP will be less dependent on forensic evidence and will not have to navigate the challenges associating with collecting it. therefore, the OTP should train its prosecutors and investigators to look for this type of evidence when the collection of forensic evidence is not possible. Following these steps, the OTP will not be dependent upon the efforts of domestic agencies, NGOs and other first responders to collect forensic evidence to move forward with their investigations.

IV. Conclusion

Given the challenges of conducting a successful investigation of sexual and gender based crimes in the face of resistance or hostility from domestic agencies and NGOs, the Office of the Prosecutor is wise to attempt to foster cooperation with these entities. However, given the competing agendas of these bodies, the OTP must also recognize that it is likely that in many instances it will be unable to secure this cooperation. Therefore, in order to effectively collect interview and forensic evidence, the OTP must prepare its investigators to overcome these challenges.

When seeking to interview victims and witnesses, the OTP must employ a carefully crafted strategy that accommodates for the traumatic nature of sexual violence as well as the risk of stigma associated with the crime, and the risk of repercussions for cooperating with the OTP in general. Similarly, the challenges of collecting forensic evidence can be overcome through a proactive approach that encourages the streamlining of medical and legal examinations, while simultaneously training its investigators to rely on other, more readily available evidence. Only by cultivating techniques such as those discussed above will the Office of the Prosecutor be able to overcome the challenges of investigating sexual and gender based crimes without the aid of other international or domestic first responders.

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

1.
Office of the Prosecutor, International Criminal Court, Draft Policy on Sexual and Gender Based Crimes (2014) at ¶ 42, available online, archived. ↩
2.
Id. at ¶ 98. ↩
3.
Id. ↩
4.
Kim Thuy Seelinger, Helene Silverberg, & Robin Mejia, The Investigation and Prosecution of Sexual Violence: A Working Paper of the Sexual Violence & Accountability Project UC Berkeley HRC (May 2011) at 19, available online, archive. ↩
5.
Wairagala Wakabi, Expert Describes Trauma Among Central African Rape Victims, Int’l Just. Monitor (Nov. 29, 2014), available online. ↩
6.
Office of the Prosecutor, International Criminal Tribunal for Rwanda, Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-Conflict Regions: Lessons Learned from the Office of the Prosecutor for the International Criminal Tribunal for Rwanda (Jan. 30, 2014) [hereinafter ICTR 2014 Best Practices Manual], available online, archived. ↩
7.
Stuart L. Lustig, Symptoms of Trauma Among Political Asylum Applicants: Don’t Be Fooled, 31 Hastings Int’l & Comp. L. Rev. 725 (2008), Lexis/Nexis paywall. ↩
8.
Timeline: Jean-Pierre Bembe Gombo at the International Criminal Court, Int’l Just. Monitor, available online (last visited Apr. 8, 2016). ↩
9.
Lustig, supra note 7. ↩
10.
Wakabi, supra note 5. ↩
11.
Helen Vesperini, Anger After Kenyan ICC Trial Witness ‘Outed’ Online, Fox News, Sep. 18, 2013, available online. ↩
12.
REDRESS, Comments on the OTP Draft Policy Paper on Sexual and Gender Based Crimes (Feb. 2014), available online. ↩
13.
Sex Crimes, San Diego Police Dept., available online (last visited Apr. 8, 2016). ↩
14.
ICTR 2014 Best Practices Manual, supra note 6, at 38. ↩
15.
The Importance of DNA in a Sexual Assault Case, RAINN, available online (last visited Apr. 8, 2016). ↩
16.
Seelinger et al., supra note 4, at 31. ↩
17.
See generally Human Rights Watch, Testing Justice: Rape Kit Backlog in Los Angeles City & County (Mar. 31, 2009), available online. ↩
18.
Seelinger et al., supra note 4, at 33. ↩
19.
Wakabi, supra note 5. ↩
20.
See generally Xabier Agirre Aranburu, Sexual Violence Beyond a Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases, 23 Leiden J. Int’l L. 609 (2010), available online. ↩

Jenevieve Discar
4913
April 25, 2016
8:19 am

Evidentiary Standards for Sexual and Gender Based Crimes at the ICC, ICTY and ICTR

I. Introduction

In recent years, significant progress has been made in punishing the perpetrators of sexual and gender based crimes at an international level and securing justice and protection for victims. Particularly with the advent of the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and International Criminal Court (ICC) and the focus that each court has lent to sexual and gender based crimes, victims of such crimes are offered unprecedented opportunity for redress. Despite improvements, however, issues specific to sexual violence continue; to date, there have been no ICC convictions based on sexual and gender based crimes and, as of 2011, only 41 out of 71 indictments involving sexual crimes resulted in convictions at the ICTY, ICTR or the Special Court for Sierra Leone.1

The ICC faces distinct challenges with respect to the prosecution of sexual and gender based crimes. In February 2014, the Office of the Prosecutor (OTP) released its Draft Policy Paper on Sexual and Gender Based Crimes, in which the OTP presents potential solutions to issues that are unique to sexual and gender based crimes and reaffirms its commitment to “fulfill its duties under the Statute and contribute most effectively to put an end to impunity for sexual and gender based crimes of concern to the international community as a whole.”2

The problem, however, may be partially due to the Court rather than the OTP. This comment examines select cases that suggest that the ICTY, ICTR and ICC may have higher evidentiary standards for sexual and gender based crimes than for other crimes. Specifically, Part II discusses the ad hoc tribunal’s seemingly higher evidentiary standards for sexual and gender based crimes, focusing on Prosecutor v. Kajelijeli, Prosecutor v. Muvunyi, Prosecutor v. Gacumbitsi and Prosecutor v. Brđanin. Part III examines Prosecutor v. Katanga, the ICC’s latest conviction, which suggests that the ICC may similarly be applying a higher evidentiary standard for sexual and gender based crimes. While there is limited support from which to draw this conclusion by solely studying the ICC, due to fewer convictions and the relative youth of the Court, Katanga as a case study supports that the ICC may follow the same pattern evidenced by the ICTY and ICTR.

II. Possible higher evidentiary standards for sexual and gender based crimes at the ad hoc tribunals

A. Prosecutor v. Kajelijeli and Prosecutor v. Muvunyi: rape acquittals at the ICTR

In The ICTR’s Legacy on Sexual Violence, Catharine MacKinnon notes:

[T]he seeming reluctance of the [ICTR], at times, to hold a man responsible for a sexual violation another man committed, when it is willing to hold the same man responsible for murder committed on virtually the same evidence, at the same time and place, by and against the same people.”3

MacKinnon’s observation is supported by Prosecutor v. Kajelijeli. In 1998, Juvénal Kajelijeli, former mayor in the Commune of Mukingo, was arrested at the request of the Chief Prosecutor of the ICTR for his role in the Rwandan genocide. Kajelijeli allegedly ordered, organized, supervised, and personally carried out attacks against Tutsi civilians in 1994. On December 1, 2003, the Second Trial Chamber of the ICTR declared that Kajelijeli was: not guilty of “conspiracy to commit genocide,” guilty of “genocide,” guilty of “direct and public incitement to commit genocide,” guilty of “extermination as a crime against humanity,” not guilty of “rape as a crime against humanity,” and not guilty of “inhumane acts as a crime against humanity.”4 Despite credible evidence that soldiers under Kajelijeli’s effective control had committed rape and sexual assault, and several witness testimonies that provided strong circumstantial evidence showing that Kajelijeli had authorized such acts, the ICTR found the evidence insufficient to prove that Kajelijeli had ordered the rape or sexual assault.5 In her dissent, Judge Arlette Ramaroson concluded that despite the majority’s holding:

there is substantial, specific and corroborative evidence to sustain the allegation that Kajelijeli committed the crime with which he is charged and that, consequently, he is responsible for the rapes perpetrated on women.6

Additionally, in Prosecutor v. Muvunyi, Lieutenant Colonel Tharcisse Muvunyi, former Commander of Rwandan military school École des sous-officiers, was found guilty of direct and public incitement to commit genocide but acquitted of rape charges.7 According to the prosecution, “several women and girls were raped and were subject to sexual violence in these very same places or were forcibly taken or compelled to go to other places where they were raped or subjected to sexual violence on the part of the Interahamwe militia and soldiers from the Ngoma camp” and, in the majority of the rape incidents, “it was Muvunyi who gave the order directly to the soldiers and militia to carry out the attacks. At all events, due to his position of authority and the generalised nature of the massacres, Muvunyi knew, or had reasons to know that these attacks were taking place, but took no steps to prevent them, to put a stop to them or to punish the perpetrators.” However, Muvunyi was ultimately acquitted of the rape charges but found guilty of incitement to commit genocide.8

B. Instigation of sexual and gender based crimes (Prosecutor v. Gacumbitsi) vs. instigation of persecution (Prosecutor v. Brđanin)

The ad hoc tribunals appear to treat evidence in sexual violence cases involving instigation differently from other types of cases. According to the ICTY Appeals Chamber, in cases involving instigation:

it is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused, [rather] it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.9

In Prosecutor v. Brđanin, the ICTY Trial Chamber held that the defendant was guilty of instigating the crime against humanity of persecution. This decision was based on Brđanin’s Autonomous Region of Krajina (ARK) staff deciding to request municipal authorities to disarm, dismiss from employment, and resettle non-Serbs. Even though there was no evidence presented to demonstrate that the ARK staff was acting in direct response to Brđanin’s statements, or that they were even aware of his statements; rather, it was sufficient that Brđanin made inflammatory statements, and that he was in a position of power, which suggested a causal link between the ARK’s decisions and the deportation and forcible transfer of non-Serbs. Based on this, the Trial Chamber ultimately concluded that Brđanin’s “statements could only be understood by the physical perpetrators as a direct invitation and prompting to [deport and forcibly transfer non-Serbs].”10

This is markedly different from the standards evidenced in Prosecutor v. Gacumbitsi, a case involving sexual violence. The defendant, Gacumbitsi, was charged with instigating rape and sexual degradation of Tutsi women. Gacumbitsi had been driving around telling Hutu men to rape Tutsis in explicit detail, using a megaphone. The ICTR Appeals Chambers did not find the connection between Gacumbitsi’s actions and those of the physical perpetrators sufficient to establish instigation. According to the court, although the acts “appear to have been committed after the Appellant instigated rape, there is no evidence that the Appellant’s instigation substantially contributed to them.” Thus, it rejected as “speculative” the Prosecution’s argument that “even if some perpetrators of [these] rapes did not directly hear the [Appellant]‘s instigation, they were told by others about it, or were inspired by the actions of others who had heard it.” This case stands in stark contrast to the Brđanin case, suggesting that the causal link required to establish instigation for sexual and gender based crimes may need to be stronger than that of other crimes.11

III. Prosecutor v. Katanga: possible higher evidentiary standard at the ICC

On March 7, 2014, the ICC found Congolese rebel leader Germain Katanga guilty as an accessory to “one count of crime against humanity (murder) and four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging)” committed in 2003 during an attack on the village of Bogoro in the Democratic Republic of the Congo (DRC). Katanga was acquitted, however, of the crimes of rape, sexual slavery and using child soldiers.12

In a statement released the day of Katanga’s judgment, Brigid Inder, Executive Director of the Women’s Initiatives for Gender Justice, expressed disappointment over the ruling and, specifically, that:

[T]he judges appeared to expect a different level of proof regarding Mr. Katanga’s contribution to [the crimes of sexual violence] than they required to convict him on the basis of his contribution to the crimes of directing an attack against a civilian population, pillaging, murder, and destruction of property, which were committed at the same time as women in the village were being raped. … Mr Katanga’s acquittal on charges of rape and sexual slavery is a devastating result for the victims/survivors of the Bogoro attack, as well as other victims of these crimes committed by the FRPI within the ethnically-driven conflict in Ituri.13

Inder went on to note that:

[I]t is possible that a higher standard of evidence was expected in relation to sexual violence, including requiring a more deliberate intention to commit these crimes in the Bogoro attack, which they did not require in convicting Mr Katanga for the crimes of directing an attack against a civilian population, pillaging, murder and destruction of property. This judgment on face value appears to be inherently inconsistent. Mr Katanga was convicted on the basis of his contribution to the Bogoro attack. The majority of the judges concluded that Mr Katanga’s contribution reinforced the militia’s capacity to proceed with the attack and allowed the attack to be implemented. The Trial Chamber therefore found he contributed to all of the crimes associated with the attack as charged by the Prosecution, except for the acts of sexual violence.14

The outcome in the Katanga case appears to align with those of the ICTY and ICTR; similar to the ad hoc tribunals, the ICC may be applying a higher evidentiary standard for sexual and gender based crimes, even when the sexual violence for which the defendant is charged occurs during the same attack as the other charges.

IV. Conclusion

An examination of Prosecutor v. Kajelijeli, Prosecutor v. Muvunyi, Prosecutor v. Gacumbitsi and Prosecutor v. Brđanin and Prosecutor v. Katanga suggests that the international courts are applying a higher evidentiary standard for cases involving sexual and gender based crimes than for other crimes. While the solutions proposed in the OTP’s Draft Policy Paper on Sexual and Gender Based Crimes may help alleviate some of the problems that are unique to sexual and gender based crimes, to fully address the problem, it may also be necessary to evaluate the evidentiary standards imposed by the Court.

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

1.
Kasiva Mulli, TJ Monitor: ICC Judgment Against Katanga Shows that the Battle for Accountability of Sexual Crimes in Conflict is Not Yet Won, Justice and Reconciliation Project (May 2, 2014), available online. ↩
2.
Office of the Prosecutor, International Criminal Court, Draft Policy on Sexual and Gender Based Crimes (2014) available online, archived. ↩
3.
Catharine A. MacKinnon, The ICTR’s Legacy on Sexual Violence, 14 New Eng. J. Int’l & Comp. L. 211, 215 (Dec. 2, 2008), available online, archived. ↩
4.
Juvénal Kajelijeli, TRIAL, available online (last visited Apr. 8, 2016). ↩
5.
Susana SáCouto & Katherine Cleary, Importance of Effective Investigation of Sexual Violence and Gender-Based Crimes at the International Criminal Court, 17 Am. U. J. Gender & Soc. Pol’y & L. 337 (2009) , available online, archived. ↩
6.
The Prosecutor v. Juvénal Kajelijeli, ICTR-98-44A-T, Dissenting Opinion of Judge Arlette Ramaroson (ICTR Trial Chamber II, Dec. 1, 2003), available online, archived. ↩
7.
The Prosecutor v. Tharcisse Muvunyi, Int’l Crimes Database, available online (last visited Apr. 8, 2016). ↩
8.
Id. ↩
9.
SáCouto & Cleary, supra note 5, at 356. ↩
10.
Id. ↩
11.
Id. ↩
12.
International Criminal Court, Questions and Answers about the Judgment Rendered by Trial Chamber II in the Case of The Prosecutor v. Germain Katanga (Mar. 7, 2014), available online. ↩
13.
Women’s Initiatives for Gender Justice, Partial Conviction of Katanga by ICC Acquittals for Sexual Violence and Use of Child Soldiers (Mar. 7, 2014), available online. ↩
14.
Id. ↩

Ilka Garkisch
4914
April 26, 2016
4:05 am

And who fights the (s)extortion thing going on by ICC supervisors? For instance april 2013 BBC reported about sexual abuses committed by ICC officers, but soon all articles were removed. ICC officers harass their female staff sexually and always get away with it. "La maltrata cuando pueda." Bribe institutions? Sure, this always works. Impunity for ever and innocent tax payers have to pay for all this hanky panky. Three verdicts in fourteen years, this says quite much about the work of the ICC.

McElroy
4917
May 2, 2016
9:07 am

Implications of the Challenge in Securing First Responder Evidence in Sexual and Gender Based Crimes: Significance of Command Liability Theory in Prosecutions by International Courts

I. Introduction

The ICC’s Office of the Prosecutor (OTP) faces an important challenge with regard to its ability to effectively prosecute Sexual and Gender Based Crimes (SGBC): the achievement of efficient cooperation with first responders and those working on the ground with victims and survivors of SGBC. This cooperation is crucial to obtain evidence that would serve to convict those responsible for the commission of SGBC. In any given situation or case, the availability and frequency of individuals or organizations that can provide relevant and reliable evidence with regard to SGBC is limited. Whether due to a desire to preserve independence, security concerns, policy and organizational constraints, or other issues, there is often a reluctance of first responders to cooperate with the OTP, which results in the OTP’s constrained ability to secure evidence in its prosecution of SGBC. The fact that such cooperation is less an issue in the OTP’s prosecution of non-SGBC suggests that the unique nature of SGBC contributes to the limitations that hinder the OTP in its prosecution of these crimes.

The fact that there is a lack of cooperation required to furnish crucial evidence in the first place sheds light on the importance of securing alternative modes of liability that may facilitate convictions of those who commit SGBC. Pattern evidence, collected over the long term, includes the “aggregate of multiple incidents that share common features related to the victims, the perpetrators, and the modus operandi,” through expert testimony, statistics, crime mapping, and other forms.1 Struggle to secure physical evidence that would corroborate individual instances of criminal perpetration underscores the importance of utilizing pattern and additional types of evidence to convict perpetrators of SGBC on the basis of the commander liability theory. Under the commander liability doctrine, a superior can be held responsible for the acts of his or her subordinates where:

a superior–subordinate relationship exists,
the superior knew or had reason to know that the criminal act was about to be or had been committed, and
the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the physical perpetrator thereof.2

Further evaluation of the collection of evidence and its utilization for pursuing conviction under the commander liability theory with regard to both SGBC and Non-SGBC may assist in determining why obtaining relevant evidence and effectuating a subsequent prosecution and conviction remains particularly difficult for SGBC when compared to non-SGBC. This comment will evaluate the use of evidence to convict based on the command liability theory in the prosecution of SGBC and non-SGBC. Although this comment evaluates only a limited number of cases and therefore cannot establish an absolutely conclusory theory as to how certain elements of SGBC contribute to divergent applications of evidence and utilization of the command liability theory in prosecutions, the findings do suggest that successful prosecution of an SGBC appears to require higher evidentiary standards and possesses substantially less availability to employ circumstantial evidence than a non-SGBC would. This comparison underscores the necessity that the ICC as an institution work to facilitate cooperation with first responders of SGBC such that evidence may be efficiently collected and implemented in prosecuting the commission of these crimes.

II. Comparing Command Liability Theory in SGBC and Non-SGBC

The prosecution of sexual and gender based crimes through international tribunals has developed at a slower rate than the prosecution of non-SGBC. Although the ICTR Trial Chamber in Prosecutor v. Akayesu adopted a broad definition of sexual violence that provided important watershed assistance towards the prosecution of sexual violence, prosecutors have encountered substantial challenges in procuring convictions of high-level commanders, largely for lack of evidence that provides direct links to the accused.3 Subsequently, there are a limited number of SGBC cases from which one can analyze the extent to which first response, pattern, and other types of evidence may be utilized to achieve successful convictions of mass rape through use of the command liability doctrine.

Although the Čelebići Trial Court Judgment at the ICTY in November 1998 did not entail charges solely related to sexual and gender based crimes, it did set forth an important precedent regarding the use of the command liability theory to prosecute crimes of sexual violence. Three commanders were charged with command responsibility for grave breaches with cruel treatment based on abusive sexual treatment of their subordinates.4 With respect to application of command responsibility liability, the Trial Chamber stated that knowledge [of the act committed] could in fact be inferred in several ways, including:

[the] number, type, or scope of the illegal acts; the length of time; the logistics, number, type, or rank of troops or officers involved; the geographical location or widespread occurrence of the illegal acts; the location of the commander, and the modus operandi of similar acts[.]5

The ICTY Appeals Chamber Judgment in 2001 upheld the findings of the Čelebići Trial Chamber Judgment, and demonstrated that command responsibility may be employed to hold military and civilian leaders accountable for crimes of sexual violence perpetrated by subordinates that the superior “negligently failed to prevent or punish”.6 While this case does set an important precedent for the availability of the command responsibility doctrine to prosecute crimes of sexual violence, its authority remains limited to the tribunal within which it was prosecuted. The necessity for cooperation of first responders with ICC prosecutors is highlighted when one assesses the limited success of command responsibility doctrine in general as it was later implemented in the ICTR, and its even more limited margin for successful convictions when used in prosecuting sexual and gender based crimes.

While fewer instances of sexual violence were prosecuted as a crime against humanity at the ICTY, attempts to prosecute sexual and gender based crimes were more pronounced at the ICTR, where the UN Human Rights Commission estimated that between 250,000 and 500,000 rapes occurred in total; “Though low-level militia members and soldiers generally perpetrated these crimes, military and political leaders instigated, encouraged, oversaw … acts of sexual violence… and should be held criminally responsible”.7 However, the numerous amounts of acquittals post–Akayesu reflects the consistent challenge prosecutors face in securing command responsibility for these crimes. The disappointing frequency of acquittals for prosecution of SGBC within the ICTR suggests that there may exist higher evidentiary standards at an institutional level for the command responsibility doctrine as it pertains to SGBC, as opposed to the more lax standards afforded to the command responsibility doctrine for non SGBC.

Command responsibility liability recognizes that an order, even if implicit, may be inferred from circumstantial evidence, including omissions from accused. However, some scholars suggest that tribunals are more reluctant to allow for such inferences and circumstantial evidence when applied to command responsibility liability for SGBC.8 For example, under command responsibility for rape as a crime against humanity, the ICTR Musema and Kajelijeli Courts required “direct orders, physical presence of the accused at the crime scene,” and evidence of an actual rape occurring for conviction.9 Additionally, comparison between the ICTY Galić case and the ICTR Kajelijeli case further demonstrates the divergence in application of the command responsibility theory and how courts may be less accommodating towards circumstantial evidence in the prosecution of SGBC and more lenient of circumstantial evidence in the prosecution of non-SGBC.

In the Galić case, the ICTY utilized evidence that demonstrated killings of civilians were executed in a widespread manner over a longer period of time by soldiers who were under the control of the accused to infer that the defendant commander had in fact ordered his troops to kill civilians.10 Rather than require direct physical evidence of an order, the ICTY court allowed prosecutors to use pattern evidence and similarities of the crimes to establish that the accused in fact was liable for giving orders to murder civilians under the command liability theory.11 However, although the Kajelijeli case also included soldiers who were acting under the control of their commanders, the court was apparently less willing to allow circumstantial evidence and inferences to establish command responsibility liability for crimes of sexual violence. Despite eyewitness testimony that corroborated the fact that the defendant not only was entirely aware of but also authorized his subordinates to commit acts of sexual violence, “the Trial Chamber found the evidence insufficient to prove that the accused had ordered them, in one case noting that the prosecution had failed to prove that the accused had ‘issued a specific order to rape or sexually assault [the victims] on that day’.”12 Furthermore, the Chamber in the Kajelijeli case cited as one of the reasons why the prosecution failed was because they were not able to prove that the defendant was physically present during the rapes or mutilations, and therefore the prosecution was not able to meet the requirements of the command liability theory.13

Although the Kajelijeli case at the ICTR appeared to require more direct physical evidence to convict under command responsibility theory, the Ntagerura case at the ICTR reflects that prosecutors might face fewer obstacles in securing convictions under the command responsibility theory for non-SGBC. In Prosecutor v. Ntagerura, Imanishimwe was the commander of a military camp where his subordinates killed almost 3,000 civilian refugees.14 The Trial Court in that case did something unprecedented; it found the military leader guilty of extermination and genocide under solely the commander responsibility doctrine.15

The disparity in outcome between the Galić and Kajelijeli cases therefore supports the theory that circumstantial evidence is afforded more leniency in crimes that do not deal solely with charges of sexual violence, whereas the evidentiary standard appears to hold circumstantial evidence to higher scrutiny in cases that do address instances and sexual and gender based violence.

III. Conclusion

For several reasons, the OTP at the ICC faces significant challenge in securing evidence from first responders on the ground that work with victims and survivors of sexual and gender based crimes. The implications of this lack of cooperation bear heavily on the ability to utilize the command responsibility theory in prosecuting commanders of those who perpetrated sexual and gender based crimes. However, as this comment suggests, while successful convictions based on the commander responsibility theory are a challenge in and of themselves, it becomes apparently more challenging to employ this doctrine to convict based on charges of sexual and gender based crimes. The extra hurdles inherent within prosecution of sexual and gender based crimes as opposed to non sexual and gender based crimes underscore the importance of resolving cooperation issues in the first place, such that evidence may be utilized more efficiently and effectively in the future.

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

1.
Xabier Agirre Aranburu, Sexual Violence Beyond a Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases, 23 Leiden J. Int’l L. 609, 610 (2010), available online. ↩
2.
Susana SáCouto & Katherine Cleary, Importance of Effective Investigation of Sexual Violence and Gender-Based Crimes at the International Criminal Court, 17 Am. U. J. Gender & Soc. Pol’y & L. 337, 373 (2009), available online, archived. ↩
3.
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), available online. ↩
4.
Kelly Askin, Prosecuting Wartime Rape and Other Gender-Related Crimes Under International Law: Extraordinary Advances, Enduring Obstacles, 21 Berkeley J. Int’l L. 288 (2003), available online, archived. ↩
5.
The Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, IT-96-21-T, Judgement (ICTY Trial Chamber, Nov. 16, 1998) [hereinafter Čelebići Trial Chamber Judgment], available online. ↩
6.
Askin, supra note 4. ↩
7.
Haffajee, supra note 3. ↩
8.
See SáCouto & Clearly, supra note 2, at 373. ↩
9.
Allison M. Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 Cal. L. Rev. 75, 122 (Jan. 2005), available online ↩
10.
See The Prosecutor v. Stanislav Galić, IT-98-29-T, Judgement and Opinion (Dec. 5, 2003), available online. ↩
11.
SáCouto & Clearly, supra note 2, at 373. ↩
12.
Id. ↩
13.
The Prosecutor v. Juvénal Kajelijeli, ICTR-98-44A-T, Judgment and Sentence (ICTR Trial Chamber II, Dec. 1, 2003), available online. ↩
14.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki & Samuel Imanishimwe, ICTR-99-46-T, Judgement and Sentence (ICTR Trial Chamber III, Feb. 25, 2004), available online. ↩
15.
Christine Bishai, Superior Responsibility, Inferior Sentencing: Sentencing Practice at the International Criminal Tribunals, 11 Nw. J. Int’l Hum. Rts. 84 (2013), available online. ↩

karen.kwok
4918
May 9, 2016
8:48 am

Witnesses and the International Criminal Court: A Mutual Reliance

In March 2014, German Katanga was acquitted for the crimes of rape and sexual slavery as crimes against humanity and as war crimes. During the pre-trial phase of the Katanga case, witness protection issues came up that jeopardized those charges from being brought. Prior to the confirmation of charges hearing, the OTP was forced to drop all sexual violence charges “because of an internal dispute over witness protection…for two witnesses whose testimonies could have backed up the charges.”1 Charges were dropped because of inadequate witness protection. First, this example demonstrates the importance of testimonial evidence for prosecuting sex and gender-based crimes (“SGBC”), as documentary and forensic evidence is often limited. Second, this example also demonstrates the importance of witness protection and how witness protection can influence whether or not an SGBC charge can be brought.

Since the ICC’s inception in 2002, at least 199 witnesses have testified before the ICC on alleged charges in seven cases.2 “The Court relies on witnesses, and in turn they rely on us to ensure that they are not harmed as a result of their interaction with us. We therefore have to ensure that their interaction with the Court is a successful one.”3

The ICC, specifically the Registrar, is in the best position and has the authority and responsibility to protect their witnesses. As Amnesty International’s CAR expert Godfrey Byaruhanga asked, “If the ICC does not have the capacity, then who does?”4 Because first interactions with witnesses are more likely than not from non-ICC entities—first responders, NGOs and others already on the ground—the prosecution and defense relies on the cooperation of these entities to build relationships with these potential witnesses.5 These non-ICC entities are less likely to cooperate if they know that turning over a vulnerable individual to the care of the ICC could lead them to potential harm and danger. It would be difficult for the prosecutions of SGBC to succeed without the assistance and support of these non-ICC entities. Since the willingness of NGOs and other first responders to cooperate with the ICC is likely dependent on their trust of the ICC’s ability to protect victims and witnesses, without taking greater responsibility to strengthen witness protection, first responders on the ground will be discouraged to assist the prosecution of SGBC.6 Thus, in order to successfully prosecute SGBC, the ICC needs to start by improving their witness protection program.

This Comment argues that NGOs and other first responders are more likely to cooperate with investigations if the ICC demonstrates a stronger responsibility to protecting their witnesses by strengthening witness protection. Part I describes the ICC’s current witness protection program. Part II compares the ICC’s current program to the United States’ witness protection program and Kenya’s relatively new program. I chose the U.S. and Kenya programs because I wanted to compare the experiences of two programs with different levels of maturity, different amounts of resources available, and different types of cultures. Finally, in Part III, based on these two domestic programs, I suggest how the ICC can tailor the characteristics and tools of the two domestic programs to fit its needs.

I. Current ICC Witness Protection Program

The Victims and Witness Unit within the Registry is to provide protection and assistance to any witness that appears before the Court. The Unit can provide protection through the ICC Witness Protection Program. The ICC Witness Protection Program is hosted by the Registry, and acts upon referral or request by the prosecution and defense, at any stage of proceeding. When a witness is referred to the Registry, the witness is interviewed to assess what the threat is and protection program the witness would fit into.7 The witness can be placed in a safe place for days or months, resettled within the country, or relocated to another country, depending on whether short and/or long term protection is required.8 Relocating to other countries requires cooperation agreements with States Parties and other partner nations, upon formal agreement.9 According to Article 86 of the Rome Statute, states parties are to cooperate fully with the court in its investigation and prosecution of crimes, which includes the protection of victims and witnesses.10 But, “States parties have been reluctant to provide relocation agreements or accept witnesses on an ad hoc basis.... restrict[ing] the ability…to relocate witnesses, which compromises their safety.”11 In addition, the Gender and Children Unit within the OTP, “comprised of staff members with expertise on investigating and handling cases involving sexual and gender violence, seeks to provide potential witnesses with a ‘human touch,’ integrating psychosocial support into investigations and interviews.”12

II. The Experiences of Other Programs

A. U.S. Domestic Witness Protection Program

In the United States, the Marshals Service is in charge of witness protection. According to their website, “The Witness Security Program has successfully protected an estimated 18,500 participants—including innocent victim-witnesses and cooperating defendants and their dependent family members—from intimidation and retribution since the program began in 1971.” Witnesses in the U.S. are first sponsored by the U.S. Attorney, and then hosted by the Marshals after preliminary interviews and approval by the DOJ.13 During this process, the Marshals balance the need for the person’s testimony with the potential risk of harm to all parties.14

Witnesses who qualify under the program are protected and offered relocation when necessary. A witness’s “immediate family or a person closely associated with the witness if that person was also in danger” is also protected under the program. Protection begins prior to trial and “continue[s] for as long as these people are, in the Attorney General’s judgment, in danger.”15

In addition to basic protection, the U.S. Marshals have given new identities and provided basic necessities, including financial assistance for housing, food, medical care and employment assistance.16 The level of protection also varies according to the level of threat in the environment. For example, the Marshals can provide up to 24-hour protection when the witness is in a high threat environment during pre-trial, trial and other court appearances.17 In addition to relocation protection where new identities are given, the U.S. protection program also provides for emergency and temporary witness protection as a less costly way of protection and relocation witness within the time of the trial (including short time before and after trial).18 However, critics have emphasized that this temporary service “require substantial personal investment and time commitment on the part of local police and prosecutors,” a luxury the ICC may not have.

B. Kenya’s Witness Protection Agency

Although Kenya’s protection agency is a relatively new program, it is the second witness protection program established in Africa. Because it is still a new program, there are notable limitations and improvements to be made of its own. However, there are still lessons that can be learned, particularly those aspects of the program that are tailored to the needs of an African-based program.

According to their website, a protected witness is defined as “[a] witness or person related to the witness who has reason to believe that his/her safety is or may be under threat by reason of being a witness or being related to a witness,” even if “[h]e/she is required to give evidence before a court, commission or tribunal outside Kenya.”19 Anyone who fits under this definition can request for protection from the Witness Protection Agency.20 Witness protection begins the moment he is admitted into the program.21 However, Kenya does not provide information on when this protection is to end.

Specifically, Kenya has certain protective measures tools in place. The agency is an independent agency with its own funding.22 The agency provides short and long term protection services, including: physical police protection, identity change, relocation, and other support services (such as accommodation, transportation, child care, medical care, psychological support, etc.), based on an assessment and action plan conducted for each witness.23

Short-term protection includes temporary relocation to safe houses, or, where deemed safe, to the residence of relatives.24 Long-term protection considers the witness’s pre-admission standard of living, so that it could be closely replicated post-protection.25 During the process, the agency provides financial assistance until the witness can be self-sufficient.26 In addition to financial support, the agency provides psychology support service to help familiarize the protected person to the environment and culture of his new locale and to ensure that confidentiality of his past is maintained.

Based on its two years of running, the Agency has run into some known limitations. First, there are serious budgetary constraints to running a witness protection program. This is a known limitation that most, if not all, protection programs face and will face.27 Second, the Agency faced challenge with both internal and external relocation. Despite providing the protected witness with an alternative identity, links between cities and interstates and the witness’s characteristics (i.e. his spoken language and accent) makes it easy for neighbors to question the witness’s new identity. And, in terms of external relocation, the Agency is faced with limited cooperation from other states to grant visa access to their protected witness.

III. Application to the ICC and Recommendations

The ICC’s witness protection program obviously cannot completely replicate domestic programs. The objectives of an international program differ from those of a domestic system: the ICC must serve the need of witnesses from different sates and a variety of different cultures, while a domestic system serves its own citizens. Domestic systems often have the support of local police forces and it can be easier to gain cooperation with neighboring states when negotiating between states. Thus, the ICC will undoubtedly have a more difficult time building a robust witness protection and must draw from the experiences of other domestic programs and modify to meet its needs.

First, the ICC should more clearly define who is eligible to request for protection from the program. Similar to the domestic programs of Kenya and the U.S., witnesses, their immediate family, and other persons closely associated with the witness who may be in danger should be protected under the program. This may be very difficult for the ICC, since potential witnesses are often from villages and rural cultures where the whole village is closely associated with each other. However, the ICC should consider such parties as eligible for protection, but begin an assessment of their need of protection. Perhaps some of the witnesses’ neighbors and closely related relatives only require temporary relocation and protection.

The ICC’s witness protection program should begin assessment and the creation of an action plan when the parties are finalizing the decision to use the candidate as a witness. Within the action plan, it should include plans for potential temporary and permanent relocations, assessments of the witness’s pre-admission standards of living, and other social services that may be required during the time of protection.

Witness protection should not end until the agency is confident in the witness’s safety. And in cases where permanent relocation is involved, protection should not end until the witness is able to self-sustain in his new environment.

Similar to the U.S. program, the ICC should consider temporary witness protection and relocation as a better alterative to permanent relocation, and only consider permanent relocation when absolutely necessary. However, the U.S. relies on its local police force for temporary witness protection. Either the Registry or another local entity in the Netherlands will have to take over that role. Beyond physical police protection, like the programs in Kenya and the U.S., protection must include providing social services such as accommodation, transportation, medical care, psychological support, etc. This will require the Registry to work closely with the cooperating state to ensure that these services are provided for.

When permanent relocation is absolutely necessary, the Registry must rely on previously established partnerships with States Parties to gain visa access for its witnesses. In order to do this, the first step is to build these partnerships with States Parties. The support and cooperation of the States Parties is needed to establish a specified number of visas that can be granted specifically to ICC witnesses. Then, when assessing which cooperating state the witness can and should go to, the Program must consider the witness’s cultural background and characteristic, and the witness’s pre-admission standard of living.

The Registry should also provide psychological services similar to the service provided in Kenya, where they have staff psychologist to help witnesses adopt to the new environment and culture they are about to settle.28 Specifically, the staff must stress the importance of maintaining confidentiality of their past, which may be particularly difficult to accomplish for ICC witnesses as it is often the case that the witnesses are from very close-knit environments where confidentiality would be nearly impossible. Currently, the Gender and Children Unit within the OTP provides some psychosocial support while conducting investigations and interviews. The Registry should take a greater leadership role over this, while continuing to govern witness protection concerns of all ICC organs.

IV. Conclusion

Without a doubt, creating a robust witness protection program is difficult, and even more so when building an international program. However, strengthening witness protection is a project the ICC needs to divert energy and resources to. NGOs and other first responders will more likely cooperate in the investigation of SGBC, if the ICC demonstrates a stronger responsibility to protecting their witnesses.

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

1.
Taylor Toeka & Katy Glassborow, Sexual Violence Charges for DRC Cases Scrapped, IWPR (Jun. 3, 2008), available online. ↩
2.
Figures were provided to the International Bar Association by the ICC Registry on March 6, 2013. Witnesses before the International Criminal Court: An International Bar Association International Criminal Court Programme Report on the ICC’s Efforts and Challenges to Protect, Support and Ensure the Rights of Witnesses, Int’l Bar Assoc. (Jul. 2013), 14, available online ↩
3.
Id. at 27. ↩
4.
Toeka & Glassborow, supra note 1. ↩
5.
In fact, “[i]n the initial stages [prior to investigation] non-governmental organisations, displaced communities, inter-governmental organisations, hospitals and other sources provide a list of potential witnesses.” See Chris Mahony, The justice sector afterthought: Witness protection in Africa, Inst. For Sec. Studies (2010), 32, available online. ↩
6.
Toeka & Glassborow, supra note 1. ↩
7.
Id. ↩
8.
Victims and Witnesses Unit, Int’l Crim. Ct., available online (last visited Apr. 9, 2016). ↩
9.
Id. ↩
10.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute]. See also Mahony, supra note 5, at 54. ↩
11.
Mahony, supra note 5, at 54. ↩
12.
UCLA School of Law International Justice Clinic & AIDS-Free World, Safety Denied: Victim and Witness Protection in Sexual Violence Cases, 6 (May 2011), [hereinafter Safety Denied], available online. ↩
13.
Witness Security Fact Sheet 2016, U.S. Marshals Service [hereinafter Fact Sheet 2016], available online, archived. ↩
14.
Id. ↩
15.
Nicholas Fyfe & James Sheptycki, International Trends in the Facilitation of Witness Co-operation in Organized Crime Cases, 3 Eur. J. of Crim. 319, 321 (Jun. 12, 2006), available online. ↩
16.
Fact Sheet 2016, supra note 13. ↩
17.
Fact Sheet 2016, supra note 13. ↩
18.
Nora V. Demleitner, Witness Protection in Criminal Cases: Anonymity, Disguise or Other Options?, 46 Am. J. Comp. L. Supp. 641, 659 (Jan. 1, 1998), available online, archived. ↩
19.
Application & Admission, WPA–Kenya, available online (last visited Apr. 9, 2016). ↩
20.
Id. ↩
21.
Mahony, supra note 5, at 124. ↩
22.
Id. at 126. ↩
23.
Yvon Dandurand & Kristin Farr, A Review of Selected Witness Protection Programs: Report prepared for Organized Crime Division, Public Safety Canada (2010), 25, available online. ↩
24.
Mahony, supra note 5, at 126. ↩
25.
Id. ↩
26.
Id. ↩
27.
Vincent Mabatuk, Witness Protection Agency assures witnesses of safety, Standard Digital (Kenya), Jun. 7, 2013, available online. ↩
28.
See, e.g., Safety Denied, supra note 12, at 3 (describing that psychosocial and medical support is “[o]ne of the areas in which international tribunals excel” in, and emphasizing how “[p]rotection involves not only physical protection but also treatment for the kinds of recurrent emotional and physical harms that often come from the trauma of sexual violence.”) ↩

ecalmeyer
4919
May 15, 2016
9:25 am

The International Criminal Court and Non-Governmental Organizations: Challenges in Aiding the Prosecution of Sexual and Gender Based Crimes & Strengthening Global NGO Relationships

I. Introduction

The International Criminal Court’s (ICC) recent release of its Policy Paper on Sexual and Gender Based Crimes1 discusses the critical role of non-governmental organizations (NGOs) in the investigation and prosecution of sexual and gender based crimes (SGBC).2 Sexual and gender based crimes can be particularly difficult to prosecute as a war crime due to the lack of available evidence and testimony. The ICC thus looks to further cooperation with NGOs. The Office of the Prosecutor (OTP) seeks evidence and testimony from first responders and aid groups and encourages groups to work with victims of SGBC.3 Many international and local organizations strongly support the work of the Court.4 However, international and local NGOs are often reticent to cooperate with OTP’s prosecutions of SGBC5 and do not partner with the ICC for various reasons. Some NGO’s, such as the International Committee of the Red Cross (ICRC) and Doctors Without Borders/Médecins Sans Frontières International (MSF) have policies of non-cooperation vis-à-vis the ICC.6

NGO involvement with the ICC dates back to the Rome Conference.7 During the negotiations of the Rome Treaty and the founding of the ICC, Amnesty International, ICRC, Human Rights Watch and other NGOs were heavily involved.8 “NGOs formed a coalition for the criminal court that allowed them to make their voices heard in the treaty negotiation and drafting process.”9 NGO and humanitarian support of the ICC was an important facet in the Court’s development, as modeled from past tribunals.10 “[I]t is not surprising that the ICC is an eager recipient of NGO assistance. NGOs are generally the first to respond to a humanitarian crisis; on the scene long before peacekeeping forces or criminal investigators, they ‘are in a privileged position to observe what happens.’ Thus, the information they obtain is potentially invaluable to the ICC.”11 The concept of NGO participation within the Court’s trials, in particular with the ICRC, is also illustrated in the ICC’s development of rules and procedures.12 “The ICC’s Rules of Procedure and Evidence make explicit provision for…one exemption to the obligation to testify. This exemption is in favor of the ICRC, which has…total immunity from the obligation to testify…”13

Given that NGO involvement may be critical to the OTP’s prosecution of SGBC, why are NGOs reticent to cooperate with the ICC and how can the ICC encourage participation from first responders and partners on the ground in prosecuting SGBC? Providing evidence or testifying for the OTP often interferes with NGOs’ missions and aid delivery. NGOs such as the ICRC, MSF, OxFam International, Save the Children, and Amnesty International, cannot effectively pursue their own missions and at the same time provide evidence and testimony for the OTP’s prosecution of SGBC. However, NGO’s can still play an effective role in supporting OTP prosecutions. The ICC and the OTP can also take targeted action that fosters NGO involvement. This comment will look at NGO issues with ICC cooperation and ICC interaction with NGOs. Part II will address the various reasons why NGOs may not or cannot play active roles in OTP prosecutions of SGBC. Part III will examine ways in which NGOs can support OTP prosecutions of SGBC, without threatening their own organizational goals. Part IV suggest ways in which OTP actions can support increased NGO involvement and concludes.

II. The NGO Perspective

Many NGOs do not aid the OTP’s prosecutions of SGBC because cooperation with the ICC significantly threatens an NGO’s aid delivery and fieldwork.

A. Confidentiality and Neutrality

Confidentiality and neutrality are crucial in the delivery of aid to victims of sexual violence, which may be hindered by actual cooperation with the OTP or the appearance of a relationship. The ICRC, for example, which is often present delivering humanitarian aid in situation countries, must maintain its historical commitment to its fundamental principles, including the tenets of impartiality, neutrality, and independence.14 Structured so as to be the neutral delivery of aid in conflict situations, a position of ICC cooperation or any perceived western-oriented relationships defeats the neutral and confidential position the Red Cross relies on to gain access to victims.15 Often sexual violence, such as rape, is used as a tool of war to target one ethnic group or one population.16 The ICRC’s support of OTP prosecution efforts would necessitate a non-neutral position against the perpetrating population, potentially restricting aid to both sides.

MSF is often one of the first groups on the ground treating victims of sexual and gender based crimes in situation countries, placing the organization in an ideal position to gather evidence or testify. Discussing their encounters in the Democratic Republic of the Congo, aid workers state:

The morning we arrived, a large group of villagers gathered in the village of Abala awaiting medical care. All the women in that group told us they had been raped between June 9 to 12, 2011. The next day we went to the neighboring village of Nakiele, whose inhabitants told a similar story. Our team ended up staying here for two days instead of the one day planned so they could treat the high numbers of women that were presenting at the health center. The team then moved on to the village of Kanguli and treated more women including two with severe complications as a result of the rape.17

In order to deliver medical services to victims of rape and other sexual crimes, MSF must maintain a high degree of confidentiality and trust.18

The patients who come to receive treatment are overcoming shame, fear, stigmatization, and many other obstacles. Many people do not, or simply cannot, come forward to report their assault or seek treatment. However, finding immediate care after a sexual assault is critical in order to limit some of the serious consequences to the victim’s health.”19

Any notion (actual or perceived) that MSF treats a victim of sexual violence and then shares information with the ICC will destroy the tenets of trust MSF has worked to develop with affected populations and across situation countries.

B. Restricted Access and Expulsion

Strikingly, NGO cooperation with the ICC and the OTP leads to restricted access to populations in need of aid and may lead to complete expulsion from aid-delivery areas. Often, groups delivering support to victims of SGBC are working in volatile and violent areas, with rapidly changing dynamics. Without access to villages where victims have been raped or subject to other SGBC, NGOs cannot fulfill their missions of aid delivery. “During the last few years, humanitarian NGOs have certainly come to recognize that active participation in criminal investigations was likely to hinder their aid mission. It is difficult to get through a military checkpoint in a war zone while you’re denouncing the people who control it to the International Criminal Court.”20

Interaction with western-groups has a real and very immediate impact on international NGOs’ ability to deliver aid to victims of sexual violence.21 In 2004, while delivering aid to refugees in Sudan who fled from the conflict in Darfur, Save the Children and Oxfam were both ordered out of the country and prohibited from delivering aid by the Sudanese government.22 Aid groups have also seen specific and immediate results following ICC action, which many argue is due to cooperation with the ICC. “Within hours of the formal indictment of Sudanese President Omar Hassan Bashir, thirteen INGOs receive notice to leave Sudan. These included Oxfam, Save the Children, CARE, and MSF. Demonstrating the relationship between the expulsion and the ICC’s indictment, MSF’s summons to government offices occurred “within minutes after the announcement of the ICC,” according to MSF”s operational director in Darfur. Sudan accused the agencies of spying for the ICC.”23 The expulsion of these aid groups may be a result of the government’s perception that the NGOs supported the judicial proceedings of the ICC and the prosecution efforts of the OTP.24 “Humanitarian organizations operate at the will, and often the whim, of host governments—the very governments that are frequently responsible for the suffering that these organizations seek to alleviate.”25

C. Violence and Retribution

Forces and governments that use SGBC as a tool of war are quick to react to any condemnation of their acts from aid groups, followed by threats of persecution or actual violence. Beyond restricted access to aid areas, NGO workers and their clients face additional violence, sexual assault and even death in retribution for reporting sexual crimes or working with the ICC. The Court itself addressed this very issue in a 2012 report:

Alleged widespread occurrence of sexual and gender based violence: The Office notes the continued underreporting of sexual violence in Darfur. One of the alleged reasons is the reported persecution of those who speak out about rape by the Sudanese Security Forces.26

The results may be similar or worse for the individual aid worker and her population-served if NGOs are seen cooperating with the ICC to prosecute leaders in a given country. Discussing its 2013 work in the Congo, MSF reports:

The heightened presence of soldiers and armed groups near the displaced persons’ camps has created a chronic state of insecurity in which rape is an everyday occurrence.…Given the frequency of sexual attacks, rape has become commonplace. The individuals responsible act with impunity and are rarely punished. At the same time, very few victims file charges because they are afraid of reprisals.27

Even the outward reporting of SGBC, which may not rise to the level of aiding OTP prosecutions, can have dire consequences for aid workers. “The publication of a report by the Dutch section of MSF on rapes committed in Darfur by the national armed forces and pro-government militias…led to the indictment and arrest of the MSF head of mission and field manager in Khartoum for “espionage, publication of false reports and compromising national security.”28

D. Limited Funding and Resources

From a very practical standpoint, NGOs, both large and small, possess limited funding, resources, and time to address the extraordinarily vast need for their services around the globe. Many NGOs are privately funded and continuously work to secure enough monetary resources to deliver aid. As a result, NGO’s cannot divert any resources to help the OTP collect SGBC evidence. From additional procedures, documentation, time and supplies necessary for the actual collection of evidence, to the personnel expenses associated with testimony, using limited resources to support OTP prosecutions may result in less direct aid delivered. SGBC evidence collection requires timely attention and experts with specific medical training and supplies, which is costly.

Additionally, many aid groups have trouble replenishing supplies for their direct aid efforts on the ground, and cannot divert any scarce supplies in the field to support OTP prosecutions. As the MSF recently reported about aid efforts in South Sudan:

It is heartbreaking speaking to our staff, hearing their own precarious situation and that their supplies are running out when the little healthcare they are providing is all that is available in southern Unity State…We need access to civilians in the area and to resupply our staff with medicines, but it is simply too dangerous given the ongoing fighting. We don’t know how much longer they can hold out.29

Limited resources and ongoing violence make most situation countries dangerous for aid workers, and including the reasons discussed above, prevent cooperation with the ICC. These limitations are real and pressing for NGOs delivering humanitarian aid in situation countries.

III. Possible NGO Support of the ICC

While there are barriers to NGO-ICC partnerships, there are ways in which NGOs, both local and international, can continue to help the OTP with prosecution of sexual crimes. “[E]xcept for the International Committee of the Red Cross and, more recently, Médecins Sans Frontières, few organizations have drawn the logical conclusion that only a clear, transparent policy of non-cooperation with the ICC is compatible with the goal of helping, with total impartiality, the victims of war. The vast majority of NGOs have rejected such a commitment, preferring to choose on a case-by-case basis between humanitarian action and collaborating with the ICC to fight impunity.”30 An early 2004 Human Rights Watch report identified specific methods by which NGO’s can support with the ICC’s efforts, some of which are still very viable for SGBC prosecution.31 NGOs exist that might be willing to pursue various options in support of SGBC prosecutions.

NGOs can serve as first reporters of situations in which SGBC occur so that the OTP can quickly send in staff or investigators to collect evidence and identify witnesses. Early communications and SGBC reporting means less reliance on NGOs. Even information that does not rise to the level of testimony is crucial. “NGOs can inform the Office of the Prosecutor about crimes committed, a specific case, the historical and political context of human rights abuses, or the capacity or will of a state to investigate or prosecute crimes”32 NGO reporting, although it runs risks, may be a possible source of support for OTP prosecutions of SGBC.33

Some organizations may still desire to gather evidence or serve as witnesses; the identification of these organizations and subsequent outreach to these groups is crucial. For example, testimonial and evidentiary support for OTP prosecutions may come from organizations whose mission includes advocacy or prosecution work (such as anti-human trafficking or anti-sexual slavery groups), groups that have smaller infrastructure and more local reach, and groups that have not developed overarching policies regarding ICC cooperation. Additionally, NGOs influence on the ground establishing relationships with local populations may pave the way for ICC investigators, ICC outreach staff, and prosecutors. NGOs can educate populations regarding SGBC and support programs that care for victims. Sexual violence, most prominently rape, often causes great shame to victims and their families. Local partners can work to support programs that address this obstacle to prosecution.

Additionally, NGO’s can support prosecution generally by enforcing other aspects of international law. “NGOs have indirectly contributed to the development of international law through litigation in an ever-increasing number of adjudicatory processes. They have acted as court- or party-appointed experts for fact finding or legal analysis, testified as witnesses, participated as non-parties or amici curiae and even sometimes instituted cases or intervened as parties where procedural rules provide lus standi rights. Even when not formally involved, they have exerted informal influence in various ways. Practice varies within the different institutions and among the different bodies and substantive areas of international law. Access to such proceedings provides NGOs with opportunities to communicate legal arguments and to influence decision-makers’ rulings and interpretations of the law. In this way, NGOs can indirectly influence the development of international norms.”34

As evidenced, there is still an important and wide-role for NGOs in the OTP’s prosecution of SGBC. A variety of organizations, supported by the OTP and led by groups such as the ICC Coalition, can aid SGBC cases and foster mutually beneficial relationships with the Court.

IV. OTP Action and Fostering NGO Relationships

The OTP can take concrete steps to increase NGO participation in SGBC prosecutions at the ICC as well. As mentioned, outreach should be focused to local NGO’s who serve distinct populations and do not need to maintain neutrality or adopt policies of non-cooperation. As opposed to the ICRC, MSF, or Oxfam, small local groups may not be as likely to become targets of governments seeking retribution for ICC cooperation. The OTP can engage with local organizations that teach awareness about sexual violence and serve victims of sexual violence.

Confidentiality is crucial to any increased NGO participation. In particular, witness protection, witness security, and general confidentiality needs to be improved at the ICC so that groups will not suffer “outing” of their aid workers or clients upon providing testimony or evidence. The ICC must ensure that NGO work with the ICC remains confidential so as to avoid retribution, violence, or problems on ground for NGOs. The ICC’s policies regarding NGO partnership should be clear and set appropriate expectations. The ICC can look to past tribunals in which NGOs did provide testimony in order to model their interactions. Clear policies, increased confidentiality and better security will lead to stronger relationships with local groups, will show ICC accountability, and will foster trust amongst NGOs.

The ICC can also exploring anonymous reporting and evidence collection mechanisms, so that pressure is not placed on NGO personnel to testify in person or provide evidence directly. It may prove important to examine a way in which NGOs are assured that they will not be compelled to testify and can remain independent.35 Allowing discretion in the hands of NGOs may lead NGOs to consider more participation in a given situation.36 Prior to the establishment of the ICC, national sections of MSF did participate in providing testimony for judicial proceedings.37 But this changed with ICC; “In this context, MSF was obliged to reconsider the status of its testimony. Testimony was no longer a matter of free choice demonstrating the organisation’s independence with regard to the perpetrators of violence; rather, it became a legal obligation that undermined the independence of relief organisations and required them to submit to the requirements of the judicial process.”38

Recently, a group of NGOs and civil organizations in Africa called upon the OTP to continue investigations in the Congo.39 Including in their recommendations were improving the quality of investigations and clarifying relationships between the ICC and local intermediaries.40 While not speaking directly to the prosecution of SGBC, these suggestions are also relevant for engaging NGOs in SGBC prosecutions. The OTP must make SGBC prosecutions as strong as possible before asking for NGO’s testimony; any ongoing pattern of failed SGBC prosecutions when NGO’s take risks to provide evidence may cause future NGOs to be less willing to participate. Protection of NGOs aid workers and victims is crucial to NGO involvement in prosecuting SGBC. The ICC may need to provide additional procedures, guidelines, or resources in order for NGOs to protect themselves after ICC participation. Strengthening protection networks amongst states parties and increasing resources available to protect witnesses and evidence gatherers may be critical to NGO involvement.

The ICC generally can also look at how existing NGO programs do indeed support awareness of SGBC. For example, many organizations work to raise awareness of sexual violence. “A crucial element of any project providing health care to victims of sexual violence is ensuring that they know about the services available, and about the importance of seeking care and of doing so as quickly as possible. Talking to people door-to-door, using theatre, radio announcements, and billboard advertisements are among the tools that MSF uses to communicate about sexual violence and encourage victims to seek help.”41 These existing programs are helpful in creating cultural atmospheres where sexual violence is discussed, reported, and prosecuted.

V. Conclusion

The ICC’s further involvement with NGOs to prosecute sexual and gender based crimes needs to be strategic and well developed. Recognizing the real problems that exist when NGOs cooperate with the ICC, but also the invaluable evidence and information gained, the OTP should ensure it is fully capable of running thorough and confidential investigations in order to gain NGO trust. Additionally, the ICC should look at organizations with parallel mission or advocacy goals to the Court, who want to prosecute war criminals or advocate stability through judicial mechanisms. Relationships of trust can be fostered on the ground with NGOs of all sizes, and leveraging existing networks and coalitions’ relationships is the most effective way to promote cooperation with the ICC.

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

1.
Office of the Prosecutor, International Criminal Court, Policy Paper on Sexual and Gender Based Crimes, ¶ 107 (Jun. 2014), [hereinafter SGBC Policy Paper], available online, archived. ↩
2.
Id. ¶ 98.

(“The Office also recognizes the crucial role that civil society plays in preventing and addressing sexual and gender based crimes. International and local NGOs are often first-responders to incidents of sexual and gender-based violence, undertake documentation of such crimes and provide significant medical, psychosocial and material support to victims. The Office will seek to support and strengthen the cooperation with these organizations. The Office will also continue to actively work towards building a network with these organizations in order to enlist their assistance and support in efforts to reach out more to the victims.”) ↩
3.
Id. ↩
4.
International Criminal Court, Amnesty Int’l (Taiwan), available online (last visited Apr. 9, 2016).

(“Amnesty International began campaigning for the establishment of International Criminal Court in 1993. The organization was very active in the drafting of the Rome Statute of the Court, which was adopted in July 1998, and other supplementary documents[.]”)

See also International Criminal Court, ICRC (Oct. 29 2010), available online.

(“The Statute of the International Criminal Court was adopted in Rome in July 1998, an event welcomed by the ICRC as an important step towards ensuring that war crimes, crimes against humanity and genocide would no longer go unpunished. … For the ICRC[,] the International Criminal Court (ICC) is a crucial mechanism for the strengthening of the fight to end impunity, and specifically the failure to punish grave breaches of international humanitarian law.”) ↩
5.
The International Criminal Court: How Nongovernmental Organizations Can Contribute To the Prosecution of War Criminals, HRW, 5 (Sep. 2004) [hereinafter How NGOs Can Contribute], available online.

(“The jurisdiction of the Court explicitly names a number of sexual and gender-based crimes: rape; sexual slavery; enforced prostitution; forced pregnancy; enforced sterilization; and other forms of sexual violence, gender-based persecution and enslavement, including trafficking in women and girls. These crimes constitute crimes against humanity if they are carried out as part of a systematic or widespread attack on the civilian population. Acts of sexual violence can also be prosecuted as a war crime if they were committed in the context of, and associated with, an international or internal armed conflict.”) ↩
6.
Interview of Anne-Marie La Rosa, ICRC legal adviser, ICRC and ICC: two separate but complementary approaches to ensuring respect for international humanitarian law, ICRC (Mar. 3, 2009) [hereinafter ICRC and ICC], available online.

(“The ICRC has a clear and long-established practice of not becoming involved in judicial proceedings and of not disclosing what it discovers during its work. This practice is grounded in extensive experience in the field and in the organization’s utmost respect for confidentiality. The ICRC does not hesitate to remind those involved in armed conflicts—be they governments or non-State armed groups—of their obligations under IHL. But as a neutral and independent organization, we strongly believe that we will only be able to do this by ensuring continuous and confidential dialogue with all parties to the conflict. Confidentiality does not mean silence or acquiescence. It means that we only share our information and findings on alleged violations of IHL with the party responsible. The information we collect is not and will not be shared with anyone else, including the ICC.”)

See also Doctors Without Borders/Médecins Sans Frontières’ (MSF) position regarding the International Criminal Court’s prosecutor’s case against the President of Sudan, MSF (Jul. 29, 2008), available online.

(“Let us clearly state that while respecting legal authorities and international treaties, and as such the competency and mandate of the ICC, MSF remains a field-based organization of medical professionals delivering health care and life saving relief to victims of conflicts, epidemics or disasters, and is independent from all structures or powers, be they political, religious, economic or judicial. Since the creation of the ICC, all MSF sections have adopted a binding internal policy refraining from any cooperation with the ICC. This policy is based on the recognition that humanitarian activities must remain independent from risk of political and judicial pressure in order to be able to give medical and relief assistance to populations in situations of trouble and violence.”) ↩
7.
Rome Conference, Coalition for the Int’l Crim. Ct., available online (last visited Apr. 9, 2016).

(“The Coalition for the International Criminal Court actively participated in the Rome Conference—monitoring the negotiations, producing daily information for worldwide distribution and facilitating the participation and parallel activities of the more than 200 NGOs which attended. The CICC coordinated the input of civil society organizations through Issue Teams that closely followed discussions on particular provisions of the draft statute. Civil society is credited with some of the most important aspects of the Statute, such as its strong provisions for gender crimes and the independence of the prosecutor.”) ↩
8.
Michael J. Struett, The Politics of Constructing the International Criminal Court: NGOs, Discourse, and Agency, 86-87 (Palgrave Macmillan 2008). ↩
9.
Françoise Bouchet-Saulnier & Fabien Dubuet, Legal or Humanitarian Testimony? History of MSF’s Interactions with Investigations and Judicial Proceedings, MSF 32 (Apr. 2007), available online. ↩
10.
SGBC Policy Paper, supra note 1, at 32 n.66.

(“For example, in the Charles Taylor case, the Trial Chamber of the Special Court for Sierra Leone relied heavily on contemporary documentary evidence contained in the reports of international organisations and NGOs on, and media coverage of, the crimes committed in Sierra Leone in finding beyond reasonable doubt that the former President of Liberia was aware of the crimes committed in Sierra Leone by the RUF/AFRC forces against civilians, including rape.”) ↩
11.
Andrea E. K. Thomas, Nongovernmental Organizations and the International Criminal Court: Implications of Hobbes’ Theories of Human Nature and the Development of Social Institutions for Their Evolving Relationship, 20 Emory Int’l L. Rev. 435, 436 (2006), available online. ↩
12.
ICRC and ICC, supra note 6.

(“The ICRC enjoys immunity against giving testimony before criminal tribunals, so it cannot be compelled to testify. This was confirmed in 1999, in a decision by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Simić case. That decision was subsequently cited with approval by other international criminal tribunals, such as the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone. The ICC has gone further by recognizing expressly in its Rules of Procedure and Evidence (Rule 73) that information in the hands of the ICRC is not subject to disclosure, including by way of testimony.”) ↩
13.
Bouchet-Saulnier & Dubuet, supra note 9, at 33-34. ↩
14.
The Seven Fundamental Principles, Int’l Fed. of Red Cross and Red Crescent Soc., available online (last visited Apr. 9, 2016).

(“Impartiality: It makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavours to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress.

Neutrality: In order to continue to enjoy the confidence of all, the Movement may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature.

Independence: The Movement is independent. The National Societies, while auxiliaries in the humanitarian services of their governments and subject to the laws of their respective countries, must always maintain their autonomy so that they may be able at all times to act in accordance with the principles of the Movement.”) ↩
15.
Stephane Jeannet, Testimony of ICRC delegates before the International Criminal Court, ICRC (Dec. 31, 2000) available online.

(“[I]n discharging its mandate, the ICRC obtains information on the basis of a relationship of confidence; the element of confidentiality is essential to the maintenance of the relationship between the ICRC and warring parties; it is universally accepted (in particular in the Geneva Conventions and their Additional Protocols) that it is in the international interest to foster this relationship; the disclosure of information, in breach of the ICRC’s confidentiality rule, would cause irreparable damage to the ability of the ICRC to perform the functions allotted to it and thus to the international public interest. The confidentiality rule is a working principle derived from the general practice of the ICRC and from international humanitarian law, and is accepted and expected by States and victims of armed conflict. It is the hallmark of the ICRC.”) ↩
16.
See e.g. The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-0/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo (Pre-Trial Chamber II, Jun. 15, 2009), available online; Emily Backes, Landmark Trial on Rape as Weapon of War Opens at ICC, Enough Project (Nov. 23, 2010), available online; see also Médecins Sans Frontières, Sexual Violence, MSF, [hereinafter MSF Sexual Violence], available online (last visited Apr. 9, 2016).

(“Sexual violence during war can have several objectives,” says Françoise Duroch, MSF’s expert on violence. “Rape can be used as a weapon, meaning it is carried out with martial reasoning and used for political ends. It can be used to reward soldiers, or remunerate them, to motivate the troops. It can also be used as a means of torture, sometimes to humiliate the men of a certain community. Systematic rape can be used to force a population to move. Rape can also be used as a biological weapon to deliberately transmit the AIDS virus. In war, we also find the phenomenon of sexual exploitation, forced prostitution, or even sexual slavery.”) ↩
17.
Médecins Sans Frontières, Mass rape expands range and depth of violence against villagers in DRC, MSF (Jul. 4, 2011), available online. ↩
18.
Françoise Duroch & Catrin Schulte-Hillen, Care for Victims of Sexual Violence, An Organization Pushed to its Limits: The Case of Médecins Sans Frontières, MSF (Apr. 15, 2015), available online; See also Médecins Sans Frontières, Sexual and Gender Based Violence, MSF, available online (last visited Apr. 9, 2016):

(“Médecins Sans Frontières offers patients who have suffered sexual violence medical care, treatment to prevent the development of sexually transmitted infections, and psychological, social and legal support. In settings where the rate of sexual violence is high, such as in conflict zones or refugee camps, dedicated teams provide assistance, and staff work with the community to raise awareness of the problem of sexual violence, provide information about the care that MSF provides, and promote social and legal support.”) ↩
19.
MSF Sexual Violence, supra note 16. ↩
20.
Fabrice Weissman, Humanitarian aid and the International Criminal Court: Grounds for divorce, Afr. Arguments (Jul. 20, 2009), available online. ↩
21.
Jeannet, supra note 15. Discussing ICC Rule 73:

(“The ICRC insisted on obtaining a very clear and absolute rule, because anything less, i.e. any uncertainty as to whether ICRC evidence may be used by the Court without the organization’s consent, would cast a shadow on the ability of the ICRC to establish or maintain a relationship of trust with the parties to armed conflicts and the victims of such situations. Such uncertainty may result in denial or restriction of ICRC access. The perception of the ICRC by its interlocutors is of crucial importance here.”) ↩
22.
Thomas, supra note 11.

(“On November 28, 2004, the Sudanese government ordered Oxfam Great Britain and Save the Children UK to leave the Sudan. Both nongovernmental organizations (“NGOs”) were providing humanitarian assistance to the 1.7 million refugees who had fled their homes in the Darfur region. The Sudanese government objected to public statements the organizations had made, which it characterized as supportive of the rebels, asserting that the organizations should have raised their concerns privately with government officials. The expulsion orders serve as a reminder and a warning for other humanitarian organizations operating in the Sudan and around the world.”) ↩
23.
Paul Ronalds, The Change Imperative: Creating the Next Generation NGO, 93 (Kumarian Press, Jun. 2010). ↩
24.
Hauser Center, Humanitarian NGOs and the International Criminal Court, YouTube, available online.

(“This six-minute micro-documentary explores the tensions between humanitarian NGOs, like CARE and Save the Children, and advocates for international justice. The president of Save the Children, Charles MacCormack, describes his organizations expulsion from Sudan by President Bashir after the International Criminal Court charged Bashir with crimes against humanity in March 2009. ICC Prosecutor Luis Moreno Ocampo argues that President Bashir expelled these groups, not because of any real cooperation between the NGOs and his office, but to pressure the international community. Ken Roth, president of Human Rights Watch, calls for a parallel partnership between humanitarian NGOs and the ICC, to prevent collaboration from compromising any group. Leading figures in both the justice and humanitarian movements debate whether dialogue is possible across these lines, raising both practical and ethical questions.”) ↩
25.
Thomas, supra note 11, at 435-36. ↩
26.
Office of the Prosecutor, International Criminal Court, Sixteenth Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593 (2005), p.5 at § 2.4 (Dec. 2012), available online, archived. ↩
27.
Democratic Republic of Congo: Sexual violence rife in Goma Camps, MSF (Jan. 17, 2013), available online. ↩
28.
Bouchet-Saulnier & Dubuet, supra note 9, at 40. ↩
29.
South Sudan: Insecurity in Leer has devastating consequences for those hiding in the bush, MSF (Feb. 11, 2014), available online. ↩
30.
Weissman, supra note 22. ↩
31.
How NGOs Can Contribute, supra note 5, at 14 (“Telling others about the Court; Providing Information to the Court; Serving as a link between the Court and victims and witnesses” among others.) ↩
32.
Id. at 14-15 (stating also that “The Prosecutor received six communications regarding the situation in Ituri, among them “two detailed reports from nongovernmental organizations.” Evidently, the reports from the NGOs prompted the Prosecutor to identify the situation in Ituri as “the most urgent situation to be followed.”); see also Fiona McKay et al., The Role of Human Rights NGOs in Relation to ICC Investigations, Hum. Rts. First (Sep. 2004), available online. ↩
33.
How NGOs Can Contribute, supra note 5, at 15.

(“NGOs can send information on crimes regarding individual cases or patterns, providing as much detail as possible. In addition, NGO reports could explain the historical and political context of the crimes investigated, in order to provide the Prosecutor with a better understanding of the situation. By reporting on the capacity or will of a state to investigate or prosecute crimes, NGOs can also help the Prosecutor determine whether a case falls under the jurisdiction of the Court or should be left to the national courts. NGOs could also inform the Prosecutor about the practical feasibility of investigations.”) ↩
34.
Barbara K. Woodward, The Role of International NGOs: An Introduction, 19 Willamette J. Int’l L. & Disp. Resol. 203, 217-18 (2011). ↩
35.
Bouchet-Saulnier & Dubuet, supra note 9, at 13 (Stating that MSF’s co-cooperation policy for testimony at the ICTY reflected “MSF’s desire to preserve its freedom of action with respect to international legal proceedings” ↩
36.
Gabor Rona, The ICRC privilege not to testify: confidentiality in action, ICRC (Feb. 28, 2004), available online.

(“[W]ould the ICRC be in a position to assure combatants of confidentiality if ultimate authority over its information is placed beyond its control? Clearly, the answer is no. The mere existence of judicial power to overrule ICRC confidentiality, or at the very least the first time that such power was used, would mean the end of the ICRC’s long-standing ability to give warring parties the assurances upon which ICRC access to the victims of armed conflict depends. Rather than asking it to “trust the Court,” the ICRC should be allowed the discretion to release evidence in exceptional cases in which it determines that any resulting risk to its operations is tolerable. This is the effect of the ICTY Decision, of ICC Rule 73 and of the ICRC’s headquarters agreements.

In discussing the ICRC’s confidentiality interests with the outside world, it is important to point out that the ICRC’s lack of cooperation with criminal tribunals should not be viewed as hostility or indifference to their task. Insofar as the ICRC and the tribunals both have a common goal, namely to ensure respect for international humanitarian law, the ICRC enthusiastically supports the existence of mechanisms for the repression of criminal violations of humanitarian law. However, because the ICRC also has a mandate to assist and protect victims and therefore cannot forego/risk losing its access to them, its role should be seen as complementary, but not identical, to that of the tribunals.”) ↩
37.
Bouchet-Saulnier & Dubuet, supra note 9. ↩
38.
Id. at 6. ↩
39.
See Joint Declaration, 134 NGOs Call on ICC Prosecutor to Continue Investigations in Congo, HRW (Mar. 13, 2014) available online. ↩
40.
Id. ↩
41.
MSF Sexual Violence, supra note 16. ↩

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