1. Individual Criminal Responsibility
Module 4
Individual Criminal Responsibility
INTERNATIONAL PROTOCOL
PART III – SEXUAL VIOLENCE UNDER INTERNATIONAL LAW
PAGES 40-63
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

2. Session objectives
Explain how sexual violence can constitute an international crime
Identify the different legal elements which must be proven for accountability purposes
Use the Evidence Workbook as a checklist to avoid evidentiary gaps
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

3. What is an international crime? CRIMES AGAINST HUMANITY
International Protocol, pages 41-45
Most acts of violence will be a crime under national law – murder, rape, assault, theft, etc. Under certain circumstances, the same act can also constitute an international crime – a violation of international criminal law
International law usually only applies to states, but international criminal law, including parts of international humanitarian law, concerns individual criminal liability (but may at the same time also result in state responsibility)
There are three main types of international crimes:
CRIMES AGAINST HUMANITY
WAR CRIMES
GENOCIDE
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4. What makes an act an international crime?
Sources of international criminal law include:
▪ Treaties (e.g. Rome Statute) ▪ Customary law ▪ Jurisprudence
Definitions of international crimes can vary between different jurisdictions – you must find out which laws apply in your context
Generally, to hold individuals accountable for an international crime, you need to prove three categories of legal elements:
SPECIFIC ELEMENTS
What happened?
COMMON ELEMENTS
What was the context?
LINKAGE ELEMENTS
Who is responsible and how?
IMPACT EVIDENCE
What were the consequences for the victim?
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5. A. Specific elements of underlying crimes
International Protocol, pages 45-48, Evidence Workbook Annex 1
Module 6 - Reparations and Module 10 – Types of Evidence of Sexual Violence
Module 11 – Interviewing and Module 12 – Collecting Additional Information
EVIDENCE OF SEXUAL VIOLENCE IS ALWAYS RELEVANT
Useful to prove both specific sexual violence crimes and other international crimes that can be committed by using or involving sexual violence
Victims/witnesses likely to have evidence about both crimes of sexual violence and other crimes - same facts can be relevant to more than one specific crime
If you understand the legal elements of the crime that must be proven, you can collect the most relevant evidence
SEXUAL VIOLENCE CANNOT BE DOCUMENTED IN ISOLATION
© Institute for International Criminal Investigations 2018

6. A. Specific elements of underlying crimes – war crimes and CAH
International Protocol, pages 45-48
Evidence Workbook Annex 1
Specific crimes of sexual violence
Rape
Sexual slavery
Forced pregnancy
Enforced prostitution
Enforced sterilisation
Other forms of sexual violence
Other relevant war crimes and crimes against humanity
Murder
Torture
Use of child soldiers (WC only)
Medical experiment (WC only)
Extermination (CAH only)
Persecution (CAH only)
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

7. A. Specific elements of underlying crimes – genocide
International Protocol, pages 45-48
Evidence Workbook Annex 1
Specific acts of genocide
Killing members of the group e.g. raping and then killing
Causing serious bodily or mental harm to members of the group e.g. rape
Bringing about conditions of life calculated to destroy the group
Imposing measures intended to prevent births within the group
e.g. sterilisation
Forcibly transferring children of the group to another group
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

8. A. Specific elements of underlying crimes
International Protocol, pages 45-48, Evidence Workbook Annex 1
Module 6 – Reparations and Module 10 – Types of Evidence of Sexual Violence
Module 11 – Interviewing and Module 12 – Collecting Additional Information
Torture is a war crime and a crime against humanity, but national criminal law often addresses torture as a separate stand alone crime
Enforced disappearance is a crime against humanity, but national criminal law – in particular in Latin America - often addresses it as a separate stand alone crime
Under international law, rape is a crime regardless of whether the victim is male or female, and regardless of whether the penetration is committed with a body part or an object
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

9. A. Specific elements of underlying crimes
International Protocol, pages 45-48, Evidence Workbook Annex 1
Module 6 – Reparations and Module 10 – Types of Evidence
Module 11 – Interviewing and Module 12 – Collecting Additional Information
Some jurisdictions which have not yet brought their national law in line with international standards may have different provisions limiting the applicability of the crime
The crime of “other forms of sexual violence” can include forcing someone to commit sexual violence
MAKE SURE THAT YOU UNDERSTAND THE LAW RELEVANT TO YOUR WORK, INCLUDING ANY RELEVANT LAW ON PROCEDURE AND EVIDENCE
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

10. B. Common elements of category of crime
International Protocol, pages 48-53, Evidence Workbook Annex 1
Module 2 – Understanding Sexual Violence and Module 10 – Types of Evidence
Module 11 – Interviewing and Module 12 – Collecting Additional Information
The background circumstances of an act must reach a threshold of seriousness that raises it to the level of an international crime
For each of the three categories of international crimes – war crimes, crimes against humanity and genocide – there are certain common elements (or chapeau/contextual elements) that must be proven
YOU MUST ESTABLISH CERTAIN FACTS ABOUT THE CIRCUMSTANCES UNDER WHICH THE ACT TOOK PLACE FOR IT TO QUALIFY AS AN INTERNATIONAL CRIME
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

11. B. Common elements – sexual violence as a war crime AN ARMED CONFLICT
International Protocol, pages 48-50
Evidence Workbook Annex 1
You must show that the act of sexual violence took place
in the context of
and
was associated with
AN ARMED CONFLICT
(international or non-international)
and that the direct perpetrator was
aware of the existence of the armed conflict
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

12. sexual violence as a war crime
B. Common elements –
sexual violence as a war crime
International Protocol, pages 48-50, Evidence Workbook Annex 1
Module 10 – Types of Evidence of Sexual Violence
Sexual violence is a war crime in both international and non-international armed conflicts (different legal frameworks can define both types of armed conflict differently)
Unlike other war crimes it is not necessary to prove that a victim of sexual violence was a civilian or other protected person (but confirm this for the jurisdiction in issue)
Riots, social upheaval, and policing operations do not generally amount to an armed conflict
War crimes and crimes against humanity often overlap – the same act can sometimes satisfy the legal elements for both
© Institute for International Criminal Investigations 2018

13. B. Common elements - sexual
violence as a crime against humanity
International Protocol, pages 49 and 51
Evidence Workbook Annex 1
You must show that the act of sexual violence was part of a
widespread OR
systematic
ATTACK DIRECTED AGAINST A CIVILIAN POPULATION
knew or
intended
and that the direct perpetrator
part of the attack
that the conduct would form
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

14. B. Common elements - sexual
violence as a crime against humanity
International Protocol, pages 48-50, Evidence Workbook Annex 1
Module 10 – Types of Evidence of Sexual Violence
Crimes against humanity can take place during war or in peacetime, as long as the act was committed as part of an attack against a civilian population (but some legal systems may require an armed-conflict context)
The attack does not have to be armed/military, as long as it is widespread or systematic – some jurisdictions (incl. the ICC) also require evidence of a state or organisational policy to commit the attack
It is the attack which must be shown to be widespread or systematic and sexual violence needs only to be shown to be part of that attack. But evidence of large-scale sexual violence can help prove the attack
A SINGLE ACT OF RAPE CAN BE A CRIME AGAINST HUMANITY
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

15. B. Common elements – sexual violence as an act of genocide
International Protocol, pages 49, 52-53
Evidence Workbook Annex 1
You must show that the act of sexual violence was committed
with the intent to destroy
in whole or in part
A NATIONAL, ETHNICAL, RACIAL OR RELIGIOUS GROUP
as such
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

16. B. Common elements – sexual violence as an act of genocide
International Protocol, pages 49, 52-53, Evidence Workbook Annex 1
Module 2 – Understanding Sexual Violence and Module 10 – Types of Evidence
Genocide is a crime against a group
Genocide does not necessarily or just mean mass killing – sexual violence can constitute several underlying acts of genocide, particularly causing serious bodily or mental harm
Genocide is not an easy crime to prove – it is often difficult to find evidence of the specific intent to physically destroy the group
Only national, ethnical, racial or religious groups are covered by the crime of genocide under international law, but targeting members of other groups on discriminatory groups – such as gender or political opinion – could still constitute the crime against humanity of persecution
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17. C. Linkage elements of crimes or
modes of liability
International Protocol, pages 53-55, Evidence Workbook Annex 1
Module 9 –Planning and Module 10 – Types of Evidence of Sexual Violence
Module 11 – Interviewing and Module 12 – Collecting Additional Sources of Information
Modes of liability is a legal term which refers to different forms of personal responsibility for a crime
Under international law, it is possible to hold to account not just the direct perpetrator of sexual violence but also those who allow, encourage or remotely influence its commission
Whatever forms of criminal liability apply in your jurisdiction, it is still crucial for you to document detailed information that could help prove a link to those responsible for the crime
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

18. C. Linkage elements of crimes or
modes of liability
International Protocol, pages 53-55, Evidence Workbook Annex 1
These are the main modes of liability used by the ICC. Others may apply in your jurisdiction. You must gather sufficient information to demonstrate that the suspect
Formed a common plan with a group of people to commit international crimes
Co-perpetration
Contributed to a crime by a group of people acting with a common purpose
Common purpose
Exercised control over the crime/direct perpetrator & intended to commit the crime
Indirect perpetration
Had the authority to issue orders and expected them to be carried out
Ordering
© Institute for International Criminal Investigations 2018

19. C. Linkage elements of crimes or
modes of liability
International Protocol, pages 53-55, Evidence Workbook Annex 1
These are the main modes of liability used by the ICC. Others may apply in your jurisdiction. You must gather sufficient information to demonstrate that the suspect
Encouraged/incentivised/convinced the direct perpetrator to commit crimes
Soliciting/inducing
Provided practical assistance/moral support to the direct perpetrator
Aiding and abetting
Had effective control, knew or should have known about the sexual violence and failed to prevent or punish it (check specifics of law!)
Superior or command responsibility
© Institute for International Criminal Investigations 2018

20. Rules of procedure and evidence
International Protocol, pages 59-63
Module 7 – Do No Harm, Module 9 –Planning and Module 10 – Types of Evidence
Module 11 – Interviewing and Module 15 - Trauma
Each jurisdiction and each court will have different Rules of Procedure and Evidence (RPE)
International criminal practice has developed RPE to protect victims from irrelevant, overtly aggressive and humiliating methods of questioning. They address issues of:
Consent
Corrobora-tion
Prior/ subsequent sexual conduct
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018

21. Rules of procedure and evidence
International Protocol, pages 59-63
These are RPE developed by international criminal practice (ICP)
Others may apply in your jurisdiction
Under ICP, the presence of coercive circumstances negates genuine consent – no need to prove resistance
Consent
Under ICP, a victim’s own testimony can be sufficient evidence of sexual violence
Corroboration
Under the ICC RPE, questions about prior (e.g. virginity) or subsequent sexual conduct are prohibited
Prior/subsequent sexual conduct
No consent under coercive circumstances, International Protocol Chapter 4, Box 10
Virginity of the victim and “virginity tests”, International Protocol Chapter 4, Box 12
© Institute for International Criminal Investigations 2018

22. Recognising the elements of international crimes
EXERCISE
You are a team of documenters evaluating preliminary evidence for a fact-finding mission and making recommendations about how to find or collect additional information to improve the strength of the evidence. On the basis of the factual scenario distributed, each group should look at how the evidence satisfies
the specific elements of the selected underlying crime;
the common/contextual elements of the selected category of crime; and
(iii) what modes of liability would be the most relevant to hold the perpetrator(s) accountable and what information they need.
Training Materials on the International Protocol
© Institute for International Criminal Investigations 2018