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Sexual Violence beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases

Abstract
Abstract

Establishing the pattern of crime is fundamental for the successful investigation of international crimes (genocide, war crimes, and crimes against humanity). A pattern of crime is the aggregate of multiple incidents that share common features related to the victims, the perpetrators, and the modus operandi. Pattern evidence and analysis have been used successfully, mainly in the investigation of large-scale killings, destruction, and displacement; the use for sexual violence charges has been remarkably more limited. There is a need to overcome this gap by setting proper methods of data collection and analysis. At the level of evidence collection, under-reporting should be addressed through victimization surveys or secondary analysis of data available from different sources. At the level of analysis, the available evidence needs to be subject to impartial examination beyond the pre-conceptions of the conflict parties and advocacy groups, in compliance with scientific standards for quantitative, qualitative, and GIS (Geographic Information Systems) methods. Reviewing the different investigative experiences and jurisprudence will help to set the right methodology and contribute most efficiently to putting an end to the impunity regarding sexual crimes.

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1 SaCouto S. and Cleary K., ‘The Importance of Effective Investigation of Sexual Violence and Gender-Based Crimes at the ICC’, (2009) 17 American University Journal of Gender, Social Policy and the Law 338, at 353.

2 See, among others, the pioneering work by S. Brownmiller, Against Our Will: Men, Women and Rape (1975). I am grateful to Patricia Viseur-Sellers for sharing her expertise and first bringing to my attention in 1997 the research of Brownmiller, in the context of our work at the ICTY. For an overview of the progress made, see Viseur-Sellers P., ‘Gender Strategy Is Not a Luxury for International Courts’, (2009) 17 American University Journal of Gender, Social Policy and the Law 301. For related empirical research, see N. H. Rafter and F. Heidensohn (eds.), International Feminist Perspectives in Criminology (1995).

3 For an overview of the international jurisprudence see, among others, A. L. M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR (2005); K. D. Askin, War Crimes against Women: Prosecution in International War Crimes Tribunals (1997); K. Askin, ‘The Jurisprudence of International War Crimes Tribunals: Securing Gender Justice for Some Survivors’, in H. Durham and T. Gurd (eds.), Listening to the Silences: Women and War (2005), 125; X. A. Aranburu, ‘Los Delitos de Agresión Sexual en el Tribunal Penal Internacional de Naciones Unidas para la Antigua Yugoslavia’, in S. D. Luengo, R. A. Stoffels, and S. S. Caballero (eds.), Violencia Contra las Mujeres en Conflictos Armados (2003), 39; Luping D.Investigation and Prosecution of Sexual and Gender-Based Crimes before the ICC’, (2009) 17 American University Journal of Gender, Social Policy and the Law 433; as well as the periodic reports of the Women's Initiative for Gender Justice, available at www.iccwomen.org/. Note strong condemnation and measures on sexual violence against women and children (no mention of male adult victims) in UN Security Council resolutions, including UN Doc. S/RES/1325 (2000), UN Doc. S/RES/1820 (2008), UN Doc. S/RES/1888 (2009), and UN. Doc. S/RES/1889 (2009).

4 B. Nowrojee, ‘Lost Opportunity for Justice: Why Did the ICTR Not Prosecute Gender Propaganda?’, in A. Thompon (ed.), The Media and the Rwanda Genocide (2007), 370 (emphasis in original). Nowrojee produced in 2004 the report ‘Sexual Violence Crimes during the Rwandan Genocide’ for the ICTR OTP, and gave expert testimony in several ICTR cases, basing her assessment on her direct access to the evidence and from a comprehensive review of the ICTR jurisprudence. See also B. Nowrojee, Shattered Lives: Sexual Violence during the Rwandan Genocide and Its Aftermath (1996), and her reports ‘We Can Do Better Investigating and Prosecuting International Crimes of Sexual Violence’ (2004) and ‘Your Justice Is too Slow: Will the ICTR Fail Rwanda's Rape Victims?’ (2005), available at www.coalitiondroitsdesfemmes.org/site/publications/index_en.php (last visited 1 January 2010). This critical assessment of the ICTR is confirmed by G. Breton-Le Goff, ‘Analysis of Trends in Sexual Violence Prosecutions in Indictments by the International Criminal Tribunal for Rwanda (ICTR) from November 1995 to November 2002’, available at the same site, and Van Schaak B., ‘Obstacles on the Road to Gender Justice: The International Criminal Tribunal for Rwanda as Object Lesson’, (2009) 17 American University Journal of Gender, Social Policy and the Law 362.

5 SaCouto and Cleary, supra note 1, at 356.

6 CIPEV, ‘Report of the Commission of Inquiry into Post-election Violence’, 15 October 2008, available at www.communication.go.ke/documents/CIPEV_FINAL_REPORT.pdf (last visited 23 April 2010), 249.

7 For commercial information see www.i2group.com/template1.asp?id=5 (last visited 23 April 2010). The menu ‘crime’ shows 15 different categories, from ‘broken window’ to ‘assassination’, but no rape.

8 For an overview of research materials on multiple situations, see Alliance for Direct Action against Rape in Conflicts and Crises, ‘Documenting Sexual Violence in Conflict: Data and Methods – An Annotated Bibliography’, 2006, available at www.alliancedarc.org/downloads/news/Annotated_Bibliography_on_sexual_violence_in_conflict.pdf (last visited 23 April 2010).

9 Brownmiller, supra note 2, at 90–1.

10 E. Wood, ‘Sexual violence during War: Toward an Understanding of Variation’, in I. Shapiro, S. Kalyvas, and T. Masoud (eds.), Order, Conflict and Violence (2008), 321.

11 Wood E., ‘Armed Groups and Sexual Violence: When Is Wartime Rape Rare?’ (2009) 37 (1)Politics and Society 131, at 152.

12 Brownmiller, supra note 2, at 37.

13 Ibid., at 139.

14 On the investigation of senior leaders, see X. A. Aranburu, ‘Prosecuting the Most Responsible for International Crimes: Dilemmas of Definition and Prosecutorial Discretion’, in J. Gonzalez (ed.), Protección Internacional de Derechos Humanos y Estado de Derecho (2009), 381.

15 For an overview of feminist theories and works on rape, relying mainly on American authors, see the entry ‘Feminist Perspectives on Rape’ in Stanford Encyclopedia of Philosophy (2009), available at http://plato.stanford.edu/entries/feminism-rape/#Oth (last visited 23 April 2010). For different feminist interpretations of wartime rape, see Rejali D., ‘After Feminist Analyses of Bosnian Violence’, (1996) 8 (3)Peace Review: A Journal of Social Justice 365, full text available at http://academic.reed.edu/poli_sci/faculty/rejali/rejali/articles/bosnia96.html (last visited 23 April 2010). For a focus on gender and genocide, see the Gendercide Watch Project at www.gendercide.org/. For a well-informed network of legal researchers and practitioners, see the blog http://intlawgrrls.blogspot.com/ (all above links accessed 2 January 2010).

16 For this sort of Darwinian–Hobbesian approach to evolutionary biology, see R. Thornhill and C. T. Palmer, A Natural History of Rape: Biological Bases of Sexual Coercion (2000). For a thorough critique of this approach see C. B. Travis (ed.), Evolution, Gender and Rape (2003).

17 For an overview of the different theories see Gottschall J., ‘Explaining Wartime Rape’ (2004) 41 (2)Journal of Sex Research, 129.

18 CIPEV, supra note 6, at 246.

19 D. Kilpatrick and J. McCauley, ‘Understanding National Rape Statistics’, National Online Resource Center on Violence against Women, 2009, available at http://new.vawnet.org/Assoc_Files_VAWnet/AR_RapeStatistics.pdf (last visited 3 January 2010).

20 Brownmiller, supra note 2, at 265, estimate based on the Philadelphia prison system (1968).

21 Ibid., at 41–4, 78, 87, 132–3, 140–53, 222–4.

22 World Health Organization, ‘WHO Ethical and Safety Recommendations for Researching, Documenting and Monitoring Sexual Violence in Emergencies’ (2007), available at http://whqlibdoc.who.int/publications/2007/9789241595681_eng.pdf (last visited 24 April 2010), at 22.

23 For an overview see Sivakumaran S., ‘Sexual Violence against Men in Armed Conflict’, (2007) 18 (2)European Journal of International Law 253.

24 Interview with L. Lawry, ‘Sexual Abuse of Male Soldiers Common in Liberian War’, New Scientist, 12 August 2008, available at www.newscientist.com/article/dn14522-sexual-abuse-of-male-soldiers-common-in-liberian-war.html (last visited 23 April 2010).

25 CIPEV, supra note 6, at 243.

26 OCHA discussion paper, ‘The Nature, Scope and Motivation for Sexual Violence against Men and Boys in Armed Conflict’, June 2008, available at http://ochaonline.un.org/OchaLinkClick.aspx?link=ocha&docId=1092305 (last visited 15 January 2010), 2.

27 See different experiences with statistical estimates of mortality in the papers of the conference ‘Documenting Mortality in Conflicts’, organized by the Center for Research on the Epidemiology of Disasters (CRED) in 2008, available at http://conference.cedat.be/abstracts (last visited 1 January 2010).

28 For the definitions of rape and other sexual crimes under the ICC regime see the ICC Elements of Crimes, available at www.icc-cpi.int/NR/rdonlyres/9CAEE830-38CF-41D6-AB0B-68E5F9082543/0/Element_of_Crimes_English.pdf (last visited 15 January 2010).

29 For a detailed protocol on informed consent see Section 6, ‘Informed Consent’, World Health Organization, supra note 22, at 22–3.

30 For a comparative analysis of expert evidence across different national systems see L. Meintjes-Van der Walt, Expert Evidence in the Criminal Justice Process: A Comparative Perspective (2001).

31 On the qualifications of data collectors see Section 7, ‘Information Gathering Team’, World Health Organization, supra note 22, at 24–5. On the experience and skills of investigators and interpreters collecting statements of victims see P. Viseur-Sellers, ‘The Other Voices: Interpreters and Investigators of Sexual Violence in International Criminal Prosecutions’, in Durham and Gurd, supra note 3, 155–64.

32 Amowitz L. L. et al. , ‘Prevalence of War-Related Sexual Violence and Other Human Rights Abuses among Internally Displaced Persons in Sierra Leone’, (2002) 287 (4)Journal of the American Medical Association 513; Swiss S. et al. , ‘Violence against Women during the Liberian Civil Conflict’, (1998) 279 Journal of the American Medical Association 625; and Physicians for Human Rights, War-Related Sexual Violence in Sierra Leone: A Population-Based Assessment (2002). See also the survey conducted by the Atrocities Documentation Team (ADT) in Darfur, as documented in S. Totten and E. Markusen (eds.), Genocide in Darfur: Investigating the Atrocities in the Sudan (2006). See the questionnaire utilized by the ADT, including references to rape, at http://conference.cedat.be/sites/default/files/Pfunderheller_ADTpercent20questionnaire.pdf (last visited 3 January 2010).

33 Swiss S. and Giller J. E., ‘Rape as a Crime of War: A Medical Perspective’, (1993) 270 (5)Journal of the American Medical Association 612.

34 CIPEV, supra note 6, at 247–8. See also Nairobi: The Centre for Rights Education and Awareness, ‘Women Paid the Price! Sexual and Gender-Based Violence in the 2007 Post-election Conflict in Kenya’, 2008, available at http://creawkenya.org/index.php?option=com_content&view=article&id=100&Itemid=127 (last visited 5 March 2010). For rape as a common crime in Kenya see C. Kisuke, Rape: A Critical Analysis (2008).

35 International Federation for Human Rights (FIDH), International Investigative Mission, War Crimes in the Central African Republic, Report, ‘When the Elephants Fight, the Grass Suffers’, 2003, available at www.fidh.org/IMG/pdf/FIDH_Report_WarCrimes_in_CAR_English_Feb2003.pdf (last visited 3 January 2010). For an attempt to estimate the number of victims of rape in Rwanda see Bijleveld C., Morssinkhof A., and Smeulers A., ‘Counting the Countless: Rape Victimization during the Rwandan Genocide’, (2009) 19 (2)International Criminal Justice Review 208.

36 For Darfur, with a focus on mortality but also including data on rape, see A. H. Petersen and L. Tullin, ‘The Scorched Earth of Darfur: Patterns in Death and Destruction Reported by the People of Darfur: January 2001–September 2005’, 2006, available at www.bloodhound.se/06_04_26_DARFUR_report.pdf (last visited 20 April 2010); for Iraq, with a focus on violent deaths, see the Iraq Body Count project, available at www.iraqbodycount.org/ (last visited 20 April 2010); for Ushahidi, see www.ushahidi.com/ (last visited 3 January 2010).

37 S. Challen, Richard Korherr and His Reports (1993). Korherr, an actuary by training, was the official statistician of the SS. He was asked by Himmler to produce an assessment on the ‘final solution’. His report was used in the interrogations of Eichmann, and Korherr himself testified subsequently in a number of trials in Germany.

38 Swiss and Giller, supra note 33, at 613.

39 Lawry L., Anastario M. P., and Larrance R., ‘Using Mental Health Indicators to Identify Post-disaster Gender-Based Violence among Women Displaced by Hurricane Katrina’, (2008) 17 Journal of Women's Health 1437.

40 For an overview of the kind of data on sexual violence that can be found in displaced populations see J. Ward, ‘Addressing Gender-Based Violence in Refugee, Internally Displaced and Post-conflict Settings’, Reproductive Health for Refugees Consortium, 2002, available at www.rhrc.org/resources/gbv/ifnotnow.html (last visited 3 January 2010).

41 For definitions of crime pattern analysis in domestic jurisdictions, see www.crimereduction.gov.uk/toolkits/ui020501.htm; www.macrimeanalysts.com/articles/IdentifyingCrimePatterns.pdf (last visited 3 January 2010), and the EUROPOL Analytical Guidelines (The Hague: Europol Analysis Unit, 2000).

42 UN Commission of Experts on the Former Yugoslavia, Final Report, UN Doc. S/1994/674, 27 May 1994, Chapter IV, ‘Substantive Findings’, Section F, ‘Rape and Other Forms of Sexual Assault’, available at www.his.com/~twarrick/commxyu5.htm#IV.F (last visited 19 April 2010).

43 CIPEV, supra note 6, at 252–3.

44 P. Ball, ‘Who Did What to Whom? Planning and Implementing a Large-Scale Human Rights Data Project’, 1996, and ‘Making the Case: Investigating Large Scale Human Rights Violations Using Information Systems and Data Analysis’, available at http://shr.aaas.org/mtc (last visited 3 January 2010); J. Dueck et al., HURIDOCS Standard Formats: A Tool for Documenting Human Rights Violation (1993); and J. Dueck, A. M. Noval et al., HURIDOCS Standard Formats: Supporting Documents (1993).

45 See among others J. L. Gastwirth (ed.), Statistical Science in the Courtroom (2000). For epidemiology statistics, see S. Loue, ‘Epidemiological Causation in the Legal Context: Substance and Procedures’, ibid., 263, and the publications of the Centre for Research on the Epidemiology of Disasters, available at www.cred.be/. See also C. Aitken and F. Taroni, Statistics and the Evaluation of Evidence for Forensic Scientists (2004), and J. Asher, D. Banks and F. J. Scheuren (eds.), Statistical Methods for Human Rights (2008).

46 For an advanced discussion on the logic of investigation and litigation, see M. MacCrimmon and P. Tillers, The Dynamics of Judicial Proof: Computation, Logic and Common Sense (2002).

47 For an overview of ICTY statistical evidence as of 2006, see B. Mijatovic, ‘Statistical Evidence for the Investigation of International Crimes’, available at www.ssm.lu/pdfs/2006_2_12.pdf (last visited 31 December 2009).

48 Helge Brunborg is a demographer employed by the ICTY OTP since 1997. For the Krstić case he testified and presented the team's ‘Report on the Number of Missing and Dead from Srebrenica’. Ewa Tabeau is a demographer heading the Demographic Unit of the ICTY OTP. For the Galić case she testified on the basis of her report, ‘Population Losses in the “Siege” of Sarajevo – 10 September 1992 to 10 August 1994’. See Brunborg's recommendations for the ICC OTP in his paper of April 2003, ‘Needs for Demographic and Statistical Expertise at the International Criminal Court’, available at www.icc-cpi.int/iccdocs/asp_docs/library/organs/otp/brunborg.pdf (last visited 16 December 2009).

49 For a defence of the MSE method, see R. Silva and P. Ball, ‘The Demography of Conflict-Related Mortality in Timor-Leste (1974–1999): Reflections on Empirical Quantitative Measurement of Civilian Killings, Disappearances, and Famine-Related Deaths’, in Asher, Banks and Scheuren, supra note 45, at 117.

50 P. Ball is a statistician with experience in the analysis of mass violence in multiple situations worldwide through his work with the American Association for the Advancement of Science (AAAS), the Human Rights Data Analysis Group (HRDAG), and Benetech. Ball referred to his team's report, ‘Refugee Flow and Mass Killings in Kosovo, March–June 1999’, and his earlier report, ‘Policy or Panic? The Flight of Ethnic Albanians from Kosovo, March–May 1999’, 2000, available at http://shr.aaas.org/kosovo/policyorpanic/, and http://shr.aaas.org/kosovo/icty_report.pdf (last visited 16 December 2009).

51 Prosecutor v. Milan Milutinović, Judgement, Case No. IT-05-87-T, T.Ch.II, 26 February 2009, available at www.icty.org/x/cases/milutinovic/tjug/en/jud090226-e3of4.pdf (accessed 17 December 2009), 13–17.

52 A. Hoover, ‘Learning the Hard Way at the ICTY: Methods and Strategies for Presenting Statistical Evidence of Human Rights Violations’, draft paper presented at the International Expert Meeting on Collective Violence and International Criminal Justice: An Interdisciplinary Approach, organized by the Amsterdam Centre of Interdisciplinary Research on International Crimes and Security, Amsterdam, 2009.

53 For domestic crime mapping standards see, among others, K. Harries, Mapping Crime: Principle and Practice (1999), available at www.ncjrs.gov/pdffiles1/nij/178919.pdf (last visited 21 April 2010).

54 Z. Khaiyuan (ed.), Eyewitnesses to Massacre: American Missionaries Bear Witness to Japanese Atrocities in Nanjing (2001). Some of them were scholars of Chinese culture and had reported to the Japanese embassy in a series of letters.

55 B. Vann, ‘Report to the Office of the Prosecutor, the Special Court for Sierra Leone: Conflict-Related Sexual Violence in Sierra Leone’, 2007, as filed by the Prosecutor in the case against Charles Taylor (SCSL-03-01-PT) on 15 May 2007.

* Senior Analyst at the Office of the Prosecutor (OTP) of the International Criminal Court since 2004; previously analyst at the OTP of the United Nations International Criminal Tribunal for the former Yugoslavia (1997–2004). The author has contributed to a number of investigative and training projects on international crimes with the UN Office of the High Commissioner for Human Rights, the International Committee of the Red Cross, and different universities and NGOs. This article is based on a presentation given by the author at the Colloquium on Sexual Violence as International Crime: Interdisciplinary Approaches to Evidence, organized by the Grotius Centre for International Legal Studies, Leiden University, in co-operation with the Center on Law and Globalization of the University of Illinois, College of Law, the American Bar Foundation and Tilburg University, The Hague, 16–18 June 2009. The article will also be published as part of a symposium in (2010) 4 Law and Social Inquiry. I am grateful to my colleagues Gloria Atiba-Davis, Eirini Louppi, Laura Pla Aumatell, Gaelle Laroque, Eric Baccard, and Jane O'Toole for their review and contributions, as well as to the American University Washington College of Law which supported me as a visiting professor in 2009. []

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