Evidence

Generally speaking there are four types of evidence that can be used in court:

1. Testimonial evidence
2. Documentary evidence
3. Digital evidence
4. Physical evidence, including forensic evidence

They may complement and reinforce eachother. The ICC Rules of Procedure and Evidence (RPE) do not designate categories of inadmissible evidence and they instead provide a flexible framework for evidentiary analysis, only requiring that evidence be admitted or rejected based on its relevance and probative value.

Testimonial evidence

In many situations, because the crimes or violations were committed a long time ago, because of deterioration or tampering with evidence, because of the lack of medical services during contexts of mass atrocities, or due to other factors, there may not be any documentary, physical or digital evidence to collect regarding the crimes. It is not uncommon for testimonials to be the only form of evidence available for the acts of sexual violence. There is thus a big reliance on testimonial evidence before international criminal tribunals and courts. It is important to note that in international criminal tribunals and courts, physical and forensic evidence are not necessary to prove sexual violence as an international crime. International crimes can be established solely on the basis of victims and witnesses’ testimony (see, for instance, Rule 96 of the ICTY and ICTY RPE and Rule 63 ICC RPE, which provide that in cases of sexual violence, as well as for any other crime, no corroboration of the victim’s testimony shall be required).

Documentary evidence

Documentary evidence refers to physical material recorded information in a written or documentary format, such as military reports and other operational documents (e.g. written directives and orders) and medical certificates.

Digital evidence

Digital evidence or electronic evidence refers to any probative information or data that is stored on, received or transmitted by an electronic device, such as computers and mobile/smart phones and by browsing the internet for open source information. The digital expert who extracted the data from the electronic device may prepare a report or affidavit with the information extracted which can be used in court.

For example, the organization Physicians for Human Rights developed MediCapt, a mobile application to document forensic evidence of sexual violence. According to Physicians for Human Rights: “MediCapt provides a digital platform to facilitate the comprehensive collection of evidence by clinicians, including forensic photography of injuries sustained by survivors. MediCapt allows this forensic evidence to be securely stored in the cloud and safely shared with law enforcement and justice sector officials to inform investigations and prosecutions.”

(source: Physicians for Human Rights)

Physical evidence, including forensic evidence

Physical evidence refers to any physical objects or matter that can provide relevant information to help establish that sexual violence took place, or provide a link between a crime and its victim or between a crime and its perpetrator. Typical physical evidence of sexual violence may include: physical material; biological/forensic material; physical injuries such as bruising, burns, cuts, scars, internal or external injuries. Although physical evidence can help establish or corroborate certain facts, the collection of the physical evidence must at all times be accompanied by the collection of other corroborative evidence in order for it to be of any use. Physical evidence is generally accompanied by testimony, including from expert witnesses.

Medico-legal evidence/forensic evidence

When providing care for victims of CRSV, health professionals may collect a narrative history of the incident(s), examine the victim’s body, document their findings and collect forensic specimens with the specific objective of corroborating accounts of sexual violence for legal purposes. Of course, this may only be done by trained professionals. However, many victims of sexual violence do not sustain physical injuries, ano-genital trauma, or have no documented sperm or semen present in their bodies. The absence of this evidence does not mean the sexual violence did not occur. In international criminal practice, the use of medico-legal evidence to prove CRSV is not necessary. If this were the case, there would be no justice for most victims as they do not often have access to medical services after the CRSV has taken place.