12. March 2020
Guest contribution by Silke Studzinsky: End to impunity – victim-focussed prosecution
In July 2002 in Germany, the Code of Crimes against International Law (Völkerstrafgesetzbuch) came into force, designed to enact the Rome Statute of the International Criminal Court within national criminal law. With this, Germany made it clear that the country is not a safe hideout for war criminals. [...] Unfortunately, it then took almost ten years before the first court case was actually conducted under this code of law; the scene of the crime in this case was the Democratic Republic of Congo. It is still the only case where the defendants were also accused of sexualised criminal acts, yet in the end, there was no judgement or sentence for these crimes, since this set of charges was dismissed during trial.
So, it will still take a long time until sexualised violence in the context of armed conflict actually leads to accountability. There are numerous factors influencing investigations and eventually accountability of this type of crimes. One overarching aspect is that sexualised violence related to and in the context of armed conflict is being treated differently to other crimes. [...]
Factors that complicate a successful persecution of sexualised wartime violence:
- Some persons affected by sexualised violence are hesitating to make witness statements, or do not want to because of the circumstances of shame or exclusion from society.
- Evidence for this type of crime consists to a large extent only of witness statements, with much less ‘hard evidence’ such as documents, photographic or video evidence since the violence is generally committed behind ‘closed doors’ [...]
- Before the case even begins, state prosecutors frequently assume there will be insufficient evidence for sexualised violence in a particular conflict.
- The chain of command is difficult or impossible to prove; in general no specific order is given to commit the act of a sexual crime [...].
- [...] low priority [is] being assigned to investigating sexualised violence [...] by prosecutors who are generally male.
- There is a frequent yet false assumption that cases of sexualised violence can only be pursued if they are part of a widespread and/or systematic attack on the civilian population.
Priority to persecute sexual violence necessary
[...] Even if sexual crimes are initially investigated, there are then other reasons why they get ‘stuck’ somewhere along the line. These other reasons could be:
- The investigators are not trained or do not have expertise in the appropriate manner of questioning those who were subjected to sexualised violence.
- The affected people are not informed of their rights and the opportunities they have [...] in a manner which they can understand and act upon. [...]
- All of the participants, including the court staff and judges, are lacking in the necessary intercultural and discourse competencies [...]
- Questioning takes place subject to strict time quotas, which leads to time pressure being applied. Comprehensive questioning is not possible. Psychological assistance for those affected is not guaranteed.
- Additionally, the witnesses are obstructed in the exercise of their rights as a civil party, meaning they have no legal representation and are unable to participate in the process as a whole.
- The sex offences are subsumed into the overall charges and become little more than ‘bargaining chips’ to be sacrificed at a strategic point in the negotiations.
- There is no systematic training or assessment in how to conduct cases involving sexualised violence. [...]
Ending impunity: First steps for succesful lawsuits against sexualised wartime violence
- Priority should be accorded to investigating sexualised violence in conflicts as part of the strategy pursued by public prosecutors. The frequent hierarchisation of crimes should no longer be an option. [...]
- The necessary expertise to prosecute these sex offences needs to be acquired and regularly assessed.
- Myths and false assumptions have to be identified, admitted, analysed and cleared up. Interdisciplinary expertise also needs to be incorporated.
- An infrastructure of legal, psychological and social work support needs to be established or identified in the country where the crime was committed, and these providers need to be involved during and after the court procedures in order to provide the witnesses with skilled support.[...]
- In order to fully identify the diverse causes of inadequate investigations and conduct of court cases, and to develop solutions for these, a Round Table of experts from all relevant professions needs to be created.
You can find the full article in our expert brochure (p. 42)