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Sexual Violence beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases

Published online by Cambridge University Press:  30 July 2010

XABIER AGIRRE ARANBURU
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Abstract

Establishing the pattern of crime is fundamental for the successful investigation of international crimes (genocide, war crimes, and crimes against humanity). A pattern of crime is the aggregate of multiple incidents that share common features related to the victims, the perpetrators, and the modus operandi. Pattern evidence and analysis have been used successfully, mainly in the investigation of large-scale killings, destruction, and displacement; the use for sexual violence charges has been remarkably more limited. There is a need to overcome this gap by setting proper methods of data collection and analysis. At the level of evidence collection, under-reporting should be addressed through victimization surveys or secondary analysis of data available from different sources. At the level of analysis, the available evidence needs to be subject to impartial examination beyond the pre-conceptions of the conflict parties and advocacy groups, in compliance with scientific standards for quantitative, qualitative, and GIS (Geographic Information Systems) methods. Reviewing the different investigative experiences and jurisprudence will help to set the right methodology and contribute most efficiently to putting an end to the impunity regarding sexual crimes.

Keywords

crime patterncriminal investigationsgenociderapesexual violence
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Court
Information
Leiden Journal of International Law , Volume 23 , Issue 3 , September 2010 , pp. 609 - 627
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

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References

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27 See different experiences with statistical estimates of mortality in the papers of the conference ‘Documenting Mortality in Conflicts’, organized by the Center for Research on the Epidemiology of Disasters (CRED) in 2008, available at http://conference.cedat.be/abstracts (last visited 1 January 2010).

28 For the definitions of rape and other sexual crimes under the ICC regime see the ICC Elements of Crimes, available at www.icc-cpi.int/NR/rdonlyres/9CAEE830-38CF-41D6-AB0B-68E5F9082543/0/Element_of_Crimes_English.pdf (last visited 15 January 2010).

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37 S. Challen, Richard Korherr and His Reports (1993). Korherr, an actuary by training, was the official statistician of the SS. He was asked by Himmler to produce an assessment on the ‘final solution’. His report was used in the interrogations of Eichmann, and Korherr himself testified subsequently in a number of trials in Germany.

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48 Helge Brunborg is a demographer employed by the ICTY OTP since 1997. For the Krstić case he testified and presented the team's ‘Report on the Number of Missing and Dead from Srebrenica’. Ewa Tabeau is a demographer heading the Demographic Unit of the ICTY OTP. For the Galić case she testified on the basis of her report, ‘Population Losses in the “Siege” of Sarajevo – 10 September 1992 to 10 August 1994’. See Brunborg's recommendations for the ICC OTP in his paper of April 2003, ‘Needs for Demographic and Statistical Expertise at the International Criminal Court’, available at www.icc-cpi.int/iccdocs/asp_docs/library/organs/otp/brunborg.pdf (last visited 16 December 2009).

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50 P. Ball is a statistician with experience in the analysis of mass violence in multiple situations worldwide through his work with the American Association for the Advancement of Science (AAAS), the Human Rights Data Analysis Group (HRDAG), and Benetech. Ball referred to his team's report, ‘Refugee Flow and Mass Killings in Kosovo, March–June 1999’, and his earlier report, ‘Policy or Panic? The Flight of Ethnic Albanians from Kosovo, March–May 1999’, 2000, available at http://shr.aaas.org/kosovo/policyorpanic/, and http://shr.aaas.org/kosovo/icty_report.pdf (last visited 16 December 2009).

51 Prosecutor v. Milan Milutinović, Judgement, Case No. IT-05-87-T, T.Ch.II, 26 February 2009, available at www.icty.org/x/cases/milutinovic/tjug/en/jud090226-e3of4.pdf (accessed 17 December 2009), 13–17.

52 A. Hoover, ‘Learning the Hard Way at the ICTY: Methods and Strategies for Presenting Statistical Evidence of Human Rights Violations’, draft paper presented at the International Expert Meeting on Collective Violence and International Criminal Justice: An Interdisciplinary Approach, organized by the Amsterdam Centre of Interdisciplinary Research on International Crimes and Security, Amsterdam, 2009.

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54 Z. Khaiyuan (ed.), Eyewitnesses to Massacre: American Missionaries Bear Witness to Japanese Atrocities in Nanjing (2001). Some of them were scholars of Chinese culture and had reported to the Japanese embassy in a series of letters.

55 B. Vann, ‘Report to the Office of the Prosecutor, the Special Court for Sierra Leone: Conflict-Related Sexual Violence in Sierra Leone’, 2007, as filed by the Prosecutor in the case against Charles Taylor (SCSL-03-01-PT) on 15 May 2007.