Chapter 13 - “Reasonable Grounds” Evidence Involving Sexual Violence in Darfur

Summary

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.”