Proving International Sex Crimes

CILRAP’s department FICHL, Yale University, and the University of Cape Town co-organized two international expert seminars on international sex crimes as part of a multi-year research project involving experts from several continents, sponsored primarily by the Norwegian Ministry of Foreign Affairs. The first seminar was held at Yale University in New Haven on 15-16 October 2010. It examined questions linked to understanding such crimes more accurately, in particular issues linked to proving their commission or failed prevention. A second, follow-up seminar took place in Cape Town on 7-8 March 2011, analyzing the strengths and weaknesses of various justifications for giving priority to the investigation and prosecution of international sex crimes (so-called ‘thematic prosecution’). Both seminars sought to advance the discourse on international gender crimes by addressing one of its weakest links, namely the effective enforcement of individual criminal responsibility for such violations, in particular for actors with higher responsibility.

The research project took place against the background of the significant clarification in the ICC Statute of the exact scope of criminalization of sexual violence in international criminal law. This progress in standard-setting has been accompanied by an increased political awareness of gender crimes in armed conflicts, inter alia, through United Nations Security Ccouncil resolutions 1325 and 1888. But despite these achievements, the enforcement of criminal responsibility for international sex crimes remains feeble, especially at the national level. Serious international sex crimes go unpunished. Reference is frequently made both at the international and national levels to the difficulties of proving such crimes. Is this true or used as an excuse?

The Yale-hosted seminar analyzed in detail the means of proof relevant to the legal requirements of international sex crimes. Among the questions discussed were the following: What are the legal requirements for such crimes for the different forms of participation in their commission? Which requirements are conduct-specific and which refer to the context in which the conduct occurred? How have the different legal requirements been proved in cases? Where do the main difficulties lie and what are the typical excuses? What is the significance of 'systematic' sexual violence, sexual violence as a 'tool or instrument of warfare', and sexual violence as 'persecution'? What can be learned from the prosecution of other international crimes for the prosecution of sex crimes specifically?

These issues are discussed in the project anthology ‘Understanding and Proving International Sex Crimes’ (edited by Morten Bergsmo, Alf Butenschøn Skre and Elisabeth J. Wood, Torkel Opsahl Academic EPublisher, Beijing, 2012, ISBN 978-82-93081-29-6, 894 pages), containing many of the seminar papers. The project policy brief ‘Examining Thematic Prosecutions and the Challenges of Understanding and Proving International Sex Crimes’ (by Morten Bergsmo, Alf Butenschøn Skre, CHEAH Wui Ling and Elisabeth J. Wood, FICHL Policy Brief Series No. 10 (2013), Torkel Opsahl Academic EPublisher, Oslo, 2013, ISBN 978-82-93081-64-7) distils some outcomes and tentative conclusions from the New Haven seminar.