INTRODUCTION

Throughout history, women's rights organisations and advocates have been instrumental in every social change and justice initiative. They have influenced international conventions, provoked ground-breaking jurisprudence and driven legal reform. Non-governmental organisations (NGOs) led by women have also created global movements, adapted communication tools and established innovative services. Although sometimes invisible, women have often been at the forefront of democratic and political liberation struggles, anti-war and peace movements, and national emancipation efforts.

These initiatives continue with women advocates leading strategies to shape international gender justice and the work of the International Criminal Court (ICC), the only permanent Court with the potential to try individuals anywhere in the world for war crimes, crimes against humanity and genocide.

On 17 July 1998, the Rome Statute was adopted by 120 States and opened for signatories. The Statute came into force on 1 July 2002 upon receipt of sixty ratifications at which time the Court's jurisdiction became active. Since then it has established itself as a 698 person institution with 18 elected Judges, an independent Office of the Prosecutor, and Registry with oversight of the administrative and operational functions of the Court. The ICC includes a feature unique in international criminal justice, which is the Trust Fund for Victims mandated to provide rehabilitation assistance and reparations to victims and their families.

The key elements, which eventually gave rise to the ICC, have their roots in:

• – Past conflicts and two world wars

• – Previous efforts towards accountability and deterrence for grievous crimes and

• – The voices of victims, civil society and in particular women's NGOs, who have shown themselves to be significant partners in the pursuit of accountability and peace.

Advocates for gender justice are asserting a stake in the process of designing a new international justice system, one that effectively prevents and addresses gender-based crimes and other forms of brutality most pervasive in conflict situations as well as developing a cohesive peace and security framework capable of deterring armed conflict itself.

It has been clearly documented that the commission of rape and other forms of sexual violence intensify and increase in both scale and brutality during violent civil unrest and armed conflicts.

INTRODUCTION

The Extraordinary Chambers in the Courts of Cambodia (otherwise known as the ECCC or the Khmer Rouge Tribunal) was established pursuant to the Agreement between the United Nations and the Royal Kingdom of Cambodia. The ECCC started in 2006 with the first preliminary investigations by the co-prosecutors. ECC was established to prosecute crimes committed during the period of Democratic Kampuchea between 17 April 1975 and 6 January 1979. The ECCC has personal jurisdiction over senior leaders and those most responsible for serious violations of the Cambodian Penal Code, and the international crimes of genocide, war crimes and crimes against humanity. It is a hybrid court composed of national and international judges and staff, and it follows mainly civil law procedure. It is the first internationalized court dealing with mass crimes that allows victims to apply as civil parties and to become party to the proceedings alongside the prosecution and the defense. In Case 001, against Kaing Guek Eav (alias Duch), the former director of the security center, S-21, the Trial Chamber announced a judgment in July 2010. The judgment was appealed by all parties. On 3 February 2012, the Supreme Court Chamber pronounced the final judgment and sentenced Kaing Guek Eav to life imprisonment.

In case 002, against four senior leaders of the Khmer Rouge regime, indictments were finalized in January 2011 and the substantive hearing started on 21 November 2011. The case against the accused IENG Thirith was separated due to health reasons.

Cases 003 and 004 are strongly objected by the Cambodian government and are in the investigative phase.

In this chapter I will give (2) an overview on the participation rights and the protection scheme available for victims of sexual crimes, (3) an outline of the current situation at the ECCC with regard to sexual violence, (4) the challenges that victims face and (5) the lessons to be learned.

OVERVIEW OF THE PARTICIPATION RIGHTS OF AND THE AVAILABLE PROTECTION SCHEME FOR VICTIMS OF SEXUAL VIOLENCE BEFORE THE ECCC

PARTICIPATION RIGHTS

Victims of sexual violence, who apply to become a civil party and, therefore, a party to the proceedings, have to a large extent equal rights as appropriate like the prosecution and the defense.

INTRODUCTION

THE CALL FOR A NEW TYPE OF EVIDENCE

In remarks to The Hague Colloquium on Sexual Violence as International Crime, Luis Moreno-Ocampo, Prosecutor of the International Criminal Court (ICC) observed that cases of gender and sexual violence committed during conflict are “particularly problematic” because “these crimes are often underreported.” U.N. High Commissioner on Human Rights Navanethem Pillay similarly observed in her remarks to the Colloquium that, “we [the international community] are only addressing the tip of the iceberg… merely scratching the surface” in prosecuting sexual violence perpetrated during conflict. Both Prosecutor Moreno-Ocampo and Commissioner Pillay spoke to what those victimized during conflict know directly: under the surface of internal and international conflict is a massive level of impunity that allows sexual violence to persist unchecked by military and political leaders. As seen in conflicts such as Darfur, the sexual violence is also often left unchecked by international law.

Commissioner Pillay nonetheless highlighted the work of international tribunals in the 1990s and insisted that the prosecution of sexual violence committed during conflict was “a triumph for women who had previously been considered ‘collateral damage.’” Prosecuting sexual violence “has to be done,” she said, “even in situations where women cannot identify perpetrators.” Commissioner Pillay insisted that “a good prosecutor should be able to argue a case without individual testimony by establishing the planning, the modus, and the effects of the crime.” Prosecutor Moreno-Ocampo made a similar declaration. “Our goal is to go… further: a case with no witnesses, no victims.” He expressed a desire for a new kind of evidence available to those prosecuting the most serious of international crimes: “We want to use methods [social scientists] are developing, such as statistical analysis. We must refine how to use your tools.

Xabier Agirre, Senior Analyst from the ICC's Office of the Prosecutor, echoed Prosecutor Moreno-Ocampo's call for a new type of evidence. Agirre spoke to the Colloquium more specifically regarding what role social scientists could play in developing this evidence. He identified three social scientific needs: “[1] to get a level of description of the patterns of the crime; [2] then, to correlate the crime with command structures that produced it; [3] then to explain what caused it.”

INTRODUCTION

Crimes of sexual and gender based violence are part and parcel of the pattern of international criminal law violations committed in the context of armed conflict and/or mass scale criminal acts constituting crimes against humanity and/or genocide. Yet it is still the case, regrettably, that this category of violation is often approached with greater reluctance, analysed as if it were a separate category unto itself, and not assumed to be a component of every investigation into international criminal law violations. As a result, crimes of sexual and genderbased violence are under-documented and under-included in cases which are brought under international criminal law.

This article dispels myths which may lead to omission of such crimes from the initial investigation plan, or lead investigators and prosecutors to intentionally or inadvertently turn away from such evidence when it is brought to their attention. It will also seek to provide some concrete methods for accessing this evidence, to encourage international criminal investigators and prosecutors to include sexual and gender based violence as a matter of course in any international criminal investigation.

THE INVESTIGATION PLAN

Every investigation begins with a plan. Ideally, one starts with a clean slate, gathers potential leads, selects from among them, and follows the evidence where it may lead. In reality, due to many factors including most prominently mandate, political, security and resource constraints, there is usually a given starting point. The starting point may be defined by the temporal or geographic jurisdiction of the investigative body, and/or by the management of the investigation. The starting point may be a particular incident, a specific individual, or the leadership of a particular group or groups. It may be a body of information gathered by a particular agency or group which may have been collecting evidence based on techniques which could affect their admissibility in judicial proceedings. As such, it may suggest a certain type of crime or group of alleged perpetrators which may not reflect the reality of events on the ground.

Sexual and gender based violence occurs in all situations of mass violence.

INTRODUCTION

The International Criminal Tribunal of Rwanda (ICTR) was established as an ad hoc tribunal in the face of serious violations of international humanitarian law committed in the territory of Rwanda and neighbouring states between 1 January 1994 and 31 December 1994. The establishment of the ICTR was momentous, as it was the first international criminal tribunal with a mandate to adjudicate violations of humanitarian law committed in a non-international armed conflict. The Office of the Prosecutor (OTP) has focused on bringing before the ICTR those persons bearing the greatest responsibility for genocide and violations of international human rights. During the 1994 conflict in Rwanda rape occurred on a massive scale. The ICTR's work has included the prosecution of the crimes of rape and other sexual violence perpetrated during the genocide. The recognition that sexual violence can constitute a war crime, a crime against humanity or a constituent act of genocide has been established in International Law through the work of the ICTR and the International Criminal Tribunal for the former Yugoslavia.

The importance of ending impunity for acts of sexual violence has been stressed by the United Nations to be part of a comprehensive approach towards seeking sustainable peace, justice, truth and national reconciliation. The Security Council has very recently emphasized the responsibility of all States to put an end to impunity and to prosecute those responsible for genocide, crimes against humanity, and war crimes including those relating to sexual and other violence against women and girls. Resolution 1820, passed by the Security Council, requires all Member States to comply with their obligations for prosecuting persons responsible for such acts, to ensure that all victims of sexual violence, particularly women and girls, have equal protection under the law and equal access to justice, recognizing that, “[w]omen and girls are particularly targeted by the use of sexual violence, including as a tactic of war to humiliate, dominate, instil fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group.”

Indeed, the prosecution of sexual violence crimes is a key component to stopping the global violence against women. Rape and other forms of sexual violence must be punished and be seen to be punished, if the cycle of sexual violence and other forms of violence is to be halted.

INTRODUCTION

Sexual violence has been inflicted upon men and boys for centuries. This issue has been acknowledged in recent years in the context of the efforts being made to address sexual violence against women. Yet, sexual violence against men and boys continues to be overlooked, downplayed, or re-characterized. On occasion, this is a deliberate decision, taken so as to focus on sexual violence against women and girls. At other times, it is a by-product of the relative lack of knowledge of male sexual violence.

The prosecution of male sexual violence as an international crime is, in many ways, an allegory to the broader issue of male sexual violence. The recent prosecutions of male sexual violence, in particular by the International Criminal Tribunal for the former Yugoslavia (ICTY), reflect the very real advances that have been made on the subject more broadly in recent years. However, just as there is much distance yet to be covered as regards male sexual violence, the prosecution of male sexual violence reveals certain tensions and limitations. The state of prosecutions of sexual violence against men and boys thus reflects the state of affairs on the subject of sexual

violence against men and boys more generally.

This chapter is divided into three substantive parts. Part two presents an overview of sexual violence against men and boys. The forms, prevalence and dynamics of male sexual violence are explored. The chapter then turns to international prosecutions. Part three identifies the advances that have been made as a result of prosecutions, focusing on the substantive law, the procedural law and the prosecutions themselves. Although considerable progress has been made, much remains to be done. Accordingly, the existing limits on prosecutions are the subject of Part four. These limits exist at two principal levels – at the level of investigations and at the level of charging, including the characterization of the charges. The chapter focuses on sexual violence against men and boys committed by other men and boys. Male sexual violence committed by female perpetrators is even less well known; buried still deeper are the instances of female perpetrators of sexual violence against female victims.

INTRODUCTION

When the International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1993, there were signs of the international community's determination to open a new chapter in the treatment of war-time sexual violence and to leave behind the inadequacies of past approaches. The Security Council singled rape out as one of the particularly reprehensible crimes committed during the conflicts in the former Yugoslavia and expressed its commitment to establishing accountability for these crimes as a core part of the ICTY's mandate. Rape was specifically mentioned in the ICTY Statute as a crime against humanity and, from early on, the Rules of Procedure and Evidence contained provisions to ensure sensitive approaches to evidence in sexual violence cases. A Victims and Witnesses Section was also established to provide support for victims appearing before the Tribunal, “in particular in cases of rape and sexual assault.”

Nevertheless, those who were familiar with the historical silences surrounding war-time sexual violence watched vigilantly and with some trepidation as the ICTY spread its fledgling wings. Even with the best of intentions, it would be difficult to dismantle centuries of inaction concerning war-time sexual violence and to travel a new more visionary path.

Part of the difficulty historically has been conceptions of rape and other sexual violence crimes as sexual acts – rather than violent acts – that are personal in nature and separate from the main activity of war. For example, these mischaracterisations are visible in key international humanitarian law treaty provisions. Article 27(2) of the Fourth Geneva Convention states that “[w]omen shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.” The ICRC Commentary to this provision states that these acts are incompatible with the honour, modesty and dignity of women. Additional Protocols I and II perpetuate the perception that rape and other sexual assaults are outrages upon personal dignity rather than violent crimes.

These mischaracterisations reflect the historical failure to recognise the gravity of sexual violence crimes. For example, rape and sexual assaults were not expressly listed among the grave breaches in the Geneva Conventions and Additional Protocol I, which set out the most fundamental provisions of the international humanitarian law regime.

Although the explicit criminalization and efforts to prosecute sexual violence as an international crime are relatively new when compared to the long historic presence of these crimes in times of conflict, the international judicial response to such crimes is already breaking new ground in attending to the needs of individual survivors even while trying to establish a trail of mass brutality. The stories represented in this volume are very human whether of the survivors of these crimes or of those advocates dedicated to the prosecution of such violations or of the countless others who become involved as field workers or judicial officials. What this volume highlights is, amongst other things, that the issue of sexual violence is not an academic or theoretical subject far removed from people, but is very much an issue of individuals and communities caught up in waves of violence. An issue that concerns and affects us all, and that therefore needs to be recognized and addressed on multiple levels in order to be prevented and prosecuted. It further underscores the need to involve survivors and others in the peace-building process following a conflict beyond judicial process and the punishment of the perpetrators of these acts.

The juxtaposition of single acts of extreme violence against a backdrop of mass brutality of course is one of the reasons why these crimes have been difficult to address. For one thing, a conflict environment is not congenial to the systematic gathering of evidence and the carrying out of orderly judicial and legal process. Yet, strides have been made to prosecute those responsible for war crimes, crimes against humanity and genocide, but less so when the focus has been on sexual and gender based crimes.

The 1990s proved a turning point for international law and international institutions. In Europe the dissolution of the Soviet Union brought on the one hand hope that freedom and democracy would be restored in many countries, but also led to the destabilization of countries in Central Europe with unexpectedly bloody consequences. On a more global level, the aftermath of decolonization, in conjunction with shifting power balances after the end of the Cold War, ushered in unprecedented episodes of mass killing and brutality. It seemed to take the international community by surprise. The killing of an estimated 800,000 citizens in Rwanda in 1994 and the killing of an estimated 150,000 to 200,000 during the Yugoslav conflict are but two examples of the tremendous human toll taken by these post-Cold War conflicts. Embedded in these numbers are the many untold acts of sexual violence, predominantly against women and children, yet increasingly sexual violence against men is coming to the foreground. Despite the surge of international and noninternational armed conflicts reflecting severe breakdowns of the rule of law, the 1990s will also be remembered as a decade which marks important and innovative steps towards advancing international justice through the development of new codes of law and legal institutions to uphold them.

Although crimes of sexual violence and efforts to punish them can be traced to ancient times, a focused international effort to end impunity for sexual violence and gender-based crime has been much longer in coming. Since the 1970s concerted efforts of the international women's movement to end the silencing and to politicize the problem of violence against women, eventually led to the recognition that sexual violence and rape are systematically used as weapons of war. This historical shift in perspective on violence against women translated into international legal recognition of the discriminatory nature of violence against women and as a violation of the fundamental human rights of women. Since the early 1990s this is firmly established in binding international human rights law.

It should furthermore be noted that the occurrence and severity of sexual violence in times of war and conflict cannot be isolated from wider cultural and social dynamics which to a large extent condone sexual violence against women as an unfortunate yet inevitable part of social life, particularly when the victim and perpetrators are intimate partners.

INTRODUCTION

Written from the point of view of a Clinical Psychologist, this chapter takes a social/psychological/phenomenological approach to the prosecution of rape and sexual violence in international courts. The central assumption is that the affective/cognitive/behavioural aspects of human beings determine to a large degree how we see the world, how we judge, how we think and, especially in this case, how court members and all actors perceive and react to rape. Attitudes towards rape survivors, and more broadly toward sexuality, as well as stereotypes of both the survivor and the perpetrator can and have affected the judgments of court members. Bias is frequently denied, and holders of such bias hide behind legalism and illusions of objectivity.

The discriminatory practices against women are the ever present context in this globalized world, and what takes place within courts is no exception. Feminist scholars, during the second wave of feminism, struggled to challenge the assumption that law is objective and uninfluenced by gender, race, class, personal beliefs, and country of origin. This continues to be an ongoing struggle. Considerable progress has been made in the recognition of rape as a war crime. Yet, in the actual practice of the prosecution of rape and sexual violence crimes, the personal/subjective nature of the law and the impact of the gender of its practitioners too often remain unexamined and unchallenged. This chapter presents the results of an emipirical study, based on interviews with a wide range of court officials at the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague and the World Criminal Court (WCC) in Sarajevo. Central focus of this chapter is if/how gender-bias affects the prosecution of sexual violence in war and conflict situations.

INTRODUCTION

Sexual violence is a pervasive public health and human rights issue with potential serious effects on physical and mental health, and social well-being. Unfortunately, there are often few available data on prevalence, risk and protective factors, and consequences to survivors. This lack of data and the paucity of programming approaches which have been assessed may result in interventions that are not effective and may negatively impact the fight to end impunity and achieve justice for survivors. In settings affected by conflict and other humanitarian crises, the challenges to obtaining data to inform prevention of and response to sexual violence may be magnified.

The increasing attention to sexual violence as a tactic of armed conflict has contributed to increasing demands for data on sexual violence in conflict settings. Data are being requested by a range of different actors for different reasons. Many of the demands and the responses to them do not take into account the limitations of available data and the feasibility of collecting other data. This increased demand for data and the actions taken to respond to it raise methodological and other ethical issues including ethical, safety and methodological issues related to collection, sharing and use of data.

This chapter explores some of the key sources of data which may be available at country level and the limits to what they can tell us about sexual violence in the setting (methodological limitations). It will also identify ethical issues related to data collection and sharing, and discuss the development and content of recommendations to inform those who are collecting, using or supporting the collection of data on sexual violence. These are important for those involved in international criminal investigations and prosecutions both as users of existing data and collectors of new data.

BACKGROUND

Sexual violence in conflict is not a new phenomenon nor can it be entirely separated from sexual violence in the setting outside of the conflict. Sexual violence can occur during attacks on civilian populations, while people are fleeing fighting, and among those who are internally displaced or refugees whether in camps, urban settings, or living within host communities.