Thematic Investigation and Prosecution of International Sex Crimes

International sex crimes were first investigated and prosecuted in a systematic manner by the ICTY through the so-called 'Foča cases' (referring to Foča Municipality in Bosnia and Herzegovina). This represents a significant achievement of international criminal justice as a whole. The Tribunal's approach can be described as use, by default rather than design, of a mild variant of 'thematic prosecution', the topic of the seminar co-organized by CILRAP’s department FICHL, Yale University and the University of Cape Town on 7-8 March 2011 in Cape Town. ‘Thematic prosecution’ is understood as prioritizing, at least initially, international sex crimes over other crimes, including crimes generally considered more serious such as killings. This approach may be considered necessary to focus adequate resources to build complex and time-consuming cases when there is a large backlog of cases.

Pure 'thematic prosecution' differs from standard approaches in that those crimes that are generally considered most serious are not given the same priority, at least initially. Such pure 'thematic prosecution' entails that a theme of crimes is singled out and prioritized for investigation and prosecution, even if that means that there may not be enough resources to investigate murders or other serious crimes that do not involve that theme.

It may be argued that the ICTY has pursued a Srebrenica prosecution theme, but not the themes of destruction of religious buildings and monuments or the use of incitement through mass-media. It has been suggested that the ICC has used thematic prosecution for the recruitment and use of child soldiers. But this seminar was not concerned with past institutional practice, as much as with the future.

Several national criminal justice systems face many more core international crimes cases than they have resources to investigate and prosecute. They need to prioritize cases. Should they use one or more variants of 'thematic prosecution' to highlight certain types of crimes, depending on the circumstances of each situation?

A careful justification for 'thematic prosecution' of core international crimes - including sex crimes - has not been developed by practice. This is a lacuna insofar as the practice of pure 'thematic prosecution' is potentially controversial. Most criteria for the prioritisation of cases place decisive emphasis on the gravity of the crimes. Regrettably, contemporary armed conflicts are still characterised by many unlawful killings, normally many more than the criminal justice systems concerned can process. Murder is widely considered more grave than sex crimes and torture. Thus it is easy for national and international criminal justice officials to insist that the most serious core international crimes must be prioritized for investigation and prosecution; if necessary, even at the expense of international sex crimes.

This seminar addressed the justification for why criminal justice officials might prioritize the investigation and prosecution of certain themes of core international crimes, in particular international sex crimes. The seminar also considered the related questions of whether there should be thematic jurisdictions for international sex crimes (special courts or chambers), whether there should be special investigative and case preparatory institutional capacity for such crimes, or other forms of special measures to facilitate such investigations and prosecutions. Moreover, the role of activist non-governmental organizations in the decision-making processes that lead to thematic investigation and prosecution was also discussed.

These issues are addressed by the project anthology ‘Thematic Prosecution of International Sex Crimes’ (Morten Bergsmo (ed.), Torkel Opsahl Academic EPublisher, Beijing, 2012, ISBN 978-82-93081-31-9, 452 pages) and in a policy brief that distils key project ideas: Morten Bergsmo, Alf Butenschøn Skre, CHEAH Wui Ling and Elisabeth J. Wood: ‘Examining Thematic Prosecutions and the Challenges of Understanding and Proving International Sex Crimes’, FICHL Policy Brief Series No. 10 (2013), Torkel Opsahl Academic EPublisher, Oslo, 2013, ISBN 978-82-93081-64-7.

This research project was sponsored by the Royal Norwegian Ministry of Foreign Affairs.