Investigation and prosecution

It has been argued that international criminal tribunals investigate sexual violence crimes less than other international crimes. As stated by Maxine Marcus (2013), investigators and prosecutors shy away from sexual violence evidence and therefore these crimes “are under-documented and under-included in cases that are brought before international jurisdictions.” This, she argues, is remarkable in light of the fact that gathering evidence for such crimes does not pose any additional legal burden and need not pose any additional investigative challenge when compared to other international crimes.

The key to including sexual violence crimes in indictments requires an investigative plan that includes and is open to evidence of these crimes, includes preparation in advance of the field investigation, and relies on a checklist of elements of crimes to be proven. Furthermore, while gathering evidence, the needs of the survivor must be prioritized to the extent possible. In addition, investigations and prosecutions of male sexual violence have been rare, and when they did take place, were often prosecuted under other non-specific sexual violence crimes, such as cruel treatment or torture. It is therefore imperative that investigators are also open to the fact that male sexual violence may have occurred. The same applies for CRSV committed against LGBTQI+ persons. Additionally, women may be the perpetrators of sexual violence crimes, so inquiries into the gender of the perpetrators is therefore also necessary.

Below are some recommendations on how the investigation and prosecution of sexual violence in conflict can be improvede:

• The role of management is very important, that is to have a clear and comprehensive global strategy to address sexual violence crimes, a strategy that needs to be communicated to the entire office from the outset.
• The understanding, know-how and training to elicit the necessary evidence that would support a conviction for sexual violence among the investigators is important.
• Better coordination between the investigators and prosecutors on the evidence required to fulfill the legal requirements.
• Increasing awareness for the varying forms and underlying logics of conflict-related sexual violence, as well as the rapid development of gender-sensitive and tailored investigative methods dispel the persistent and widespread myth that these crimes are “too hard” to prove.
• The bulk of the problems at the level of evidence gathering can be encountered by appropriate means, such as a high degree of sensitivity for gender and other (including intersectional) forms of discrimination and a departure from practices – e.g. victim blaming, lack of protection and trust – that have proven to deter victims from coming forward and telling their stories.
• Having several interviews with victims and approaching them with the necessary level of respect and care. Building trust, adherence to the “Do no harm principle”, and safety, privacy, and support are all important.
• Diverse investigative teams, composed of members of different genders, ages and nationalities or regional backgrounds, provide the greatest flexibility in reaching out to and getting cooperation from victims and witnesses.
• Understanding euphemisms that sometimes might be used by victims to describe sexual violence.
• Importance of translation: correct translation and persons with the right background.
• Setting up a specialized unit to investigate and handle victims of sexual violence might be an option.
• When interviewing a witness, investigators must refrain from making any assumptions about sexual violence or have gender bias. For instance, investigators should not assume that, because a witness is young, old, disabled, or male, the witness has not experienced sexual violence.
• Other innovative ways of dealing with witness testimony that can be considered, such as using more written statements of victims/witnesses of sexual violence in lieu of oral testimony and testimonies of other eyewitnesses on their knowledge of sexual violence.

Listen to the UN Team of Experts on CRSV’s “Digital Dialogue Series” on gender bias and judicial response to CRSV:

(source: YouTube, End Rape in War)