Letter to Members of the EU Genocide Network on Investigating and Prosecuting Sexual and Gender-Based Violence as Crimes under International Law

Re: Investigating and prosecuting sexual and gender-based violence as crimes under international law

Dear National Contact Points,

We write to you ahead of the 16th meeting of the European Network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes (“the EU Genocide Network”) regarding the planned discussion on the investigation and prosecution of sexual and gender-based violence as crimes under international law. We welcome the initiative of the Secretariat of the EU Genocide Network to dedicate part of the upcoming meeting to this important topic.

We hope that the meeting will provide a useful opportunity for national practitioners to discuss and exchange views on best practices regarding efforts to combat impunity for sexual and gender-based crimes, and to address common obstacles and challenges.

We, the undersigned civil society organisations wish to draw your attention to the increasing recognition and documentation of the frequency, intensity and scale of sexual and gender-based crimes in recent years. In an important step in September 2013, 141 states adopted a Declaration of Commitment to End Sexual Violence in Conflict on the margins of the UN General Assembly.[1] This document underscores that rape and other forms of sexual violence in armed conflict may constitute war crimes including grave breaches of the Geneva Conventions and their first Protocol, which trigger the universal jurisdiction obligations of states.[2] Also, in certain circumstances these acts may constitute genocide. In addition, it is important to recall that even a single act of rape or other form of sexual violence by state actors or others in positions of power can also amount to torture[3] or a crime against humanity.[4]

The undersigned civil society organisations are aware of very few convictions for acts amounting to sexual violence prosecuted on an extra-territorial basis: that of Ephraim Nkezabera in Belgium,[5] and Désiré Munyaneza in Canada,[6] both in 2009.[7] In addition, sexual violence forms part of the elements underpinning the charges against of Ignace Murwanashyaka and Straton Musoni,[8] whose trial is underway in Germany. However, other cases in which sexual violence has been charged have later seen charges dropped or the defendant acquitted of the allegations at trial. These cases should serve as useful examples for the Network to consider in reflecting on the challenges encountered in investigating and prosecuting these crimes in is upcoming planned discussion.

There are at least three common obstacles to the investigation and prosecution of those responsible for committing sexual and gender-based violence, which we ask you to consider during your deliberations:

i. Insufficient or uncorroborated evidence: the nature of sexual violence means that complaints are frequently based on the testimony of only one person (the victim), while in conflict situations it may be that victims have died subsequent to the commission of the offence, and sometimes at the hands of those that perpetrated the sexual violence against them. As such, only second- or third-hand accounts of the crime may be available. Challenges to prosecute such crimes can be further amplified by rules of procedure which may disproportionately impact efforts to prove sexual offences. This was seen in one case where the rules of the country concerned prohibit convictions on the basis of uncorroborated evidence. In that case, the defendant was convicted of torture and – on appeal – war crimes, but acquitted of four counts of alleged rape, in part because the evidence against him in relation to one count of rape was provided by only one witness.[9]

Practitioners should be mindful of international rules which have been adopted to permit exceptions to corroboration requirements in cases concerning sexual violence amounting to crimes under international law. See for example, the rules of the ad hoc international criminal tribunals and the International Criminal Court.[10] However this also underpins the need for careful investigation of such offences and, as discussed further below, consideration of other evidence in addition to witness testimony. 

ii. Victims’ and witnesses’ fear to testify (as a result of security concerns and inadequate protection measures): survivors’ and witnesses’ genuine fears and prosecutors’ inability to protect against reprisals can significantly impact the prospects for successful investigations and prosecutions.  In one case, prosecutors cited the dangers for survivors to testify when justifying their request that charges of sexual violence be dropped midway through trial. Witnesses’ wish to avoid testifying stems from fears of reprisals but it appears that withdrawals have also stemmed from witnesses’ feelings that the process of giving evidence was too burdensome and their credibility was repeatedly called into question by the defence.[11] To enable survivors and witnesses of sexual violence to testify in an environment in which they feel safe and comfortable to come forward, practitioners should develop ways to identify, mitigate and manage all potential risks to survivors’ and witnesses’ security and wellbeing, while ensuring the rights of the accused to a fair trial.

iii. Investigators’ and prosecutors’ lack of awareness of the prevalence of sexual violence, which may impact charging decisions:an additional challenge may relate to insufficient legislative frameworks or penal codes, which will not always include the full scope of gender-based crimes recognised in international standards and jurisprudence.[12] Lack of awareness can undermine or result in “gender-blind” investigation strategies and charging decisions. For example, not all sexual or gender-based crimes under international law will occur during conflict.[13] In addition, recognising the occurrence of gender-based crimes when they do not encompass sexual violence can also be particularly challenging. For example, destruction of water wells in an intentional attack against civilian objects (a possible war crime) in a community where providing water is the responsibility of women and girls has a gender element and could amount to gender-based crimes.

Training and sensitisation is central to overcoming challenges in this regard. Practitioners may need to develop – or be able to access and draw on – specialist legal expertise regarding sexual and gender-based violence amounting to crimes under international law, in order to avoid missing key opportunities to investigate and appropriately charge sexual and other gender-based offences. Further, practitioners who have not investigated or prosecuted such crimes previously are likely to particularly benefit from training which is focused on input and guidance by and for other practitioners. This could include practical investigative techniques, analysis of the applicable legal frameworks, lessons learned from past experience or case studies. Development of capacity in this regard should also help ensure a significant gender presence in the ‘war crimes units’ or in the number of relevant practitioners handling these cases. All of this should be accompanied by education on victims and survivors’ perspectives, sensitivities, specificities relating to trauma in order to challenge stereotypes regarding sexual violence and ensure that survivors’ evidence is interpreted and responded to appropriately.

The upcoming Network meeting, as well as future meetings, present an opportunity for practitioners to consider these training needs, with a view to developing effective prosecutorial and investigative responses to the phenomenon of sexual and gender-based violence. Practitioners should use the meeting as an opportunity to identify and highlight areas of common concern, with the twofold aim of considering how their current operational arrangements and procedures can be strengthened to order to achieve a more gender-sensitive approach to international justice, and to inform future initiatives which can also help to build capacity in this field.

In order to ensure that sexual violence is not marginalised or treated as a collateral crime, it is key that investigation and prosecution of sexual violence is fully integrated into the overall case strategy from the outset of the case. This should, for example, inform decisions to collect other evidence in addition to witness testimony which can support identification and charging decisions in relation to sexual and gender-based violence.[14] Such an approach may be particularly useful regarding a situation such as Syria for example, because in contrast to older crime situations such as Rwanda, contextual information about an emerging backdrop of sexual violence is becoming available alongside contemporary efforts to document and gather evidence on the ground.[15]

The EU Genocide Network could and should play an important role to share experience and build capacity. The planned discussion at the upcoming meeting is an important starting point. The EU Genocide Network can however also complement current debates with practitioner-driven proposals for practical means to improve the prospects for successful investigations and prosecutions. These could include for example, practitioners’ seminars, practical workshops for focus groups, or targeted training by fellow practitioners as a means to complement roundtable discussions. Such initiatives could also have regard to the experiences of practitioners in countries other than those represented at the Genocide Network, which have prosecuted sexual and gender-based crimes amounting to crimes under international law.[16]