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Home > ICC > PREPCOMS > MARCH 2000 WOMEN'S CAUCUS ADVOCACY IN ICC NEGOTIATIONS |
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Recommendations and Commentary
for the Rules of Procedure and Evidence(Based on the Rolling Text PCNICC/L.5/Rev.1/Add.1)
Submitted to the Preparatory Commission for the
International Criminal Court
March 13 – 31, 2000
Summary of Recommendations:
Definition of victim: If victim is defined, the definition of victim should be based on the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and should recognize victims who have suffered environmental and cultural damage.Participation of Victims: Victims’ rights to participate in the proceedings, as codified in the Rome statute, should be fully recognized in the Rules.
Disclosure: The Rules must ensure that evidence which is confidential or private is not disclosed without the knowledge of affected victims.
Evidence in cases of sexual violence: Special Rules of evidence should be explicitly provided for cases of sexual violence. In particular:
Corroboration: Rule 6.1 of the Rules of Procedure rolling text precluding corroboration of testimony of sexual violence as part of a general non-corroboration rule should be retained.Consent: The Rules must specify that consent evidence is inadmissible where coercive circumstances affect the ability of the victims to consent.
Acquiescence: The Rules should indicate that acquiescence does not constitute consent.
Victim’s sexual conduct: Rule 96(iv) of the ICTY/ICTR Rules of Procedure prohibiting the admission of any evidence of the sexual conduct of the victims should be adopted.
Privileges: All communications between the witness and medical doctors, psychiatrists, psychologists or therapeutic counselors, whether secular or religious, and including those in the Victim Witness Unit, should be automatically privileged, and not subject to disclosure at trial, unless the client consents to such disclosure.
Rules to protect the interests of Children and Disabled Persons: The Women’s Caucus fully supports the recommendations in the Report of the Seminar on Protection of Victims, in particular of Special Groups of Victims, such as Children and Disabled Persons.
Definition of VictimThe definition of victim should be based on the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and should recognize victims who have suffered environmental and cultural damage.
Moreover, any definition of harm should include "substantial impairment of fundamental rights", as in the UN Declaration, because of the gravity of such harm. Thus, for example, “persecution” defined as “intentional and severe deprivation of fundamental rights” constitutes a crime within the jurisdiction of the Court even though it might not necessarily result in physical or mental injury.
The Women’s Caucus recommends that "environmental and cultural damage" be included as harm in order to encompass the harm arising from the full range of crimes contained within the Rome statute and recognized in the Victims Declaration. In particular, Article 8 on War Crimes includes the crime of "intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments…." This provision is based on the recognition under international humanitarian law that the harm to the common heritage of humankind is grave and distinct from other harms. For example, if a sacred shrine is destroyed, the community as a whole has suffered the loss.
In addition, article 8 also includes "intentionally launching an attack in the knowledge that such an attack will cause…widespread, long-term and severe damage to the natural environment…." While individuals may also personally suffer as a result of such damage, there is a larger collective concern. The definition of harm must therefore be expanded to include the harm arising from these particular crimes.
The Women’s Caucus believes that organizations and institutions be included within the scope of victims. While such organizations may not require the same protective measures as an individual victim, they should be able to assert their interests relating to reparations or participation.
Notification and Participation of VictimsThe right of victims to participate in the proceedings were included in the Rome statute to ensure that the process is as respectful and transparent as possible so that justice can be seen to be done. This increases both the effectiveness and the legitimacy of the Court. Any potential problems posed by victim participation can be handled through the Chamber’s power to control its proceedings, as found in article 64(9) and reflected in Rule 6.30[A](1).
Rule 2.7
Rule 2.7 is a necessary provision to implement article 15(3) of the Rome statute which explicitly allows victims to make representations to the Pre-Trial Chamber when the Prosecutor is seeking authority to proceed with an investigation. Notice of the Prosecutor’s decision to seek such authorization is essential to realizing the victim’s rights to make representations. The decision whether or not to proceed with an investigation or prosecution is a critical stage affecting the interests of victims. Victims with knowledge of the circumstances may be in an excellent position to assist the Pre Trial Chamber in the exercise of its authorizing power under article 15(4). It is therefore appropriate that victims, where they can be identified, receive notice of these decisions.Rule 2.18
Article 19(3) explicitly provides that victims may submit observations to the Court when the Prosecutor seeks a ruling from the Court regarding a question of jurisdiction or admissibility. Notification as provided for in Rule 2.18 is necessary to realize this statutory right of victims to participate.Participation of victims at this stage is crucial. As the experience of the International Court of Justice has shown, the stage of determining the jurisdiction of the Court is often the determinative stage. Victims can provide valuable information based on personal knowledge regarding whether the national legal system is able or willing to investigate the matter itself. Likewise, they can assist the Pre-Trial Chamber in determining whether the case is of “sufficient gravity” for action by the Court. It is also noted that, unlike article 15 proceedings, those under article 19 require transparency so that the public can be assured that the case is handled fairly. Thus, notice must be given, consistent with the protection of the privacy and safety of the victims, except where confidentiality is required.
The Women's Caucus also recommends that victims who so request be given access not only to a summary but also to the written submissions of either party. The ability of victims to exercise their rights under article 19(3) as well as the transparency of the Court is likely to be sorely undermined if they, or their legal representatives, are unable to fully understand, analyze and respond to the submissions of the parties. Summaries may be inadequate or even wrong. They are likely to omit factual detail that is often decisive to shaping an effective response. There is no countervailing reason to prevent access to the written submissions, particularly since documents may be redacted to protect confidential information or identities.
Rules 5.3 and 5.4
The Women's Caucus is in favour of notice being provided to victims, along with reasons, in the event that the Prosecutor decides not to proceed with an investigation or not to prosecute. This serves to protect both the transparency and integrity of the Court and the right of victims and their representatives to seek justice, including through the preparation of further submissions.Rules 5.5 and 5.7
A review of a decision not to proceed with an investigation or prosecution carries the same importance for victims as the initial decision by the Pre-Trial Chamber to authorize an investigation. Since victims are given the opportunity to make representations in the latter case under article 15(3), it is logical that they be given the same opportunity when such decisions are being reviewed. It is therefore necessary that victims, where they can be identified, are informed of these reviews.Rule 5.16
Victims should also be allowed to participate in hearings for interim release of an accused. The interests of victims are likely directly affected by whether an accused is released pending trial. Victims should be allowed to make representations to the Court about whether the accused should be released or what conditions should be imposed if the accused is released. This would provide a guarantee that the views and interests of affected victims are taken into account by the Court when making this important decision.The Women’s Caucus further supports the participation of victims as provided in Rules 5.19, 5.22, 5.25, 5.26, 6.18, 6.24, 6.28, 6.29, and 6.30.
Disclosure of Evidence or Information affecting Victims’ InterestsThe rules must allow victims the ability to ensure that the Prosecutor does not disclose information to the defense which would endanger their safety or violate their rights to privacy.
The Rome statute recognizes the need to prevent disclosure that would endanger victim safety. Article 68(5) provides that the Prosecutor may withhold certain evidence or information from the defense where its disclosure may lead to the grave endangerment of the security of a witness. Moreover, the disclosure of certain evidence or information may violate the privacy of a victim. For example, in the case of The Prosecutor v. Furundzija, the Prosecutor disclosed the private counseling records of a victim of sexual violence without advising the victim or providing her with any opportunity to bring a motion to the Court to prevent the disclosure. This case demonstrates the need to establish a mechanism so that victims are alerted if evidence or information is being disclosed which affects their safety or privacy rights, and affords them an opportunity to prevent a miscarriage of justice.
This can be accomplished in several ways. For example, victims could be given the right to participate at the status hearings under Rule 5.18. Alternatively, a separate rule can be included contiguous to Rule 5.32 providing that where material or information is in the possession and control of the Prosecution which affects a witness’ right to equality, privacy and security of the person, the Prosecutor may not disclose such material or information to the Defence without first informing the victim of such disclosure. The victim should be provided with enough advance notice to afford it an opportunity to request an ex parte in camerahearing in front of the Pre-Trial Chamber on whether such material and information shall be disclosed to the Defence and the manner of any disclosure.
The Victim and Witness Unit should also be empowered to review all evidence or information that is to be disclosed to the defense, and if necessary, inform any victims of potential problems. This would be consistent with the role assigned to the Victim Witness Unit (VWU) of the ICC pursuant to article 43 of the ICC Statute.
Rule 6.5 Evidence in Cases of Sexual ViolencePursuant to the Rome Statute, in particular articles 21(3) and 68(1) and (3), the ICC is under a duty to provide a fair and effective remedy for violence committed against women, consistent with the rights of the accused. This duty is also deeply rooted in international conventional and customary law. This means that procedures must be adopted which address the barriers that prevent women, particularly as victims of sexual violence, from seeking justice or harm them in the process.
Historically, however, judges have been guilty of applying discriminatory evidentiary rules and practices in trials of sexual violence crimes when the victim is a woman. These rules revictimize female victims, redirect the focus of the blame to the victim, and divert attention from the accused and from the harm done to the victim. In turn, they have created impunity for perpetrators of sexual violence, denied women an effective remedy for the harm they suffered, and deterred women from participating in the justice process.
For these reasons, the Rules must limit the admissibility of inflammatory and irrelevant evidence as well as the drawing of discriminatory inferences in cases of sexual violence crimes. Such rules are necessary to encourage women victims of sexual and gender violence to participate in the work of the ICC and to prevent needless retraumatisation of those who do participate.
Non-corroboration of testimony of sexual violenceIn support of Rule 6.1., the Women’s Caucus emphasizes that it is essential to have an explicit rule prohibiting any requirement of corroboration of the testimony of a victim of sexual violence similar to Rule 96(I) of the ICTY/ICTR Rules. The necessity of such a rule has been affirmed by the ad hoc Tribunal, not simply in one decision, but in three judgments involving sexual violence. In the Tadic judgment, the Trial Chamber noted that ICTY Rule 96(ii) precluding corroboration:
accords to the testimony of a victim of sexual assault the same presumption of reliability as the testimony of victims of other crimes, something long denied to victims of sexual assault by the common law.The same conclusion was repeated in the Akayesu and Delalic judgments.
The non-corroboration rule protects victims of sexual violence from discriminatory challenges to their credibility. Courts are traditionally subject to the discriminatory belief that women who charge rape are liars, loose women, or that they make charges of rape lightly. In fact women more often do not report incidences of sexual violence because of the great personal cost and the modest chance that the perpetrator will be convicted.
Non-admissibility of consent.Experience has shown that coercive circumstances often influences the victim’s power to consent. Thus, the Rules should preclude the admission of evidence of consent in these circumstances.
Sexual violence committed upon a person by those who exert power over the victim’s freedom or security cannot reflect a valid consent. It is appropriate to exclude inquiries into consent in these cases, particularly in light of the admonition of article 27 of the Geneva Conventions to take measures to prevent sexual violence. Article 27 recognizes the ever-present danger that soldiers will take advantage of coercive circumstances to rape and sexually violate women. That danger is an omnipresent terror for women who are subject to the will of another.
As with other forms of torture, a woman from whom sex is demanded may well acquiesce rather than risk death or harm to herself or to others. Acquiescence to rape is a survival strategy; it is not consent. Moreover, inquiries into consent is one of the classic means of blaming and re-traumatizing the victim. To preclude a consent defense where the victim has been subjected to coercive conduct or circumstances is both a deterrent and a guarantee of fairness at trial. For the same reasons, the Rules should also specify that acquiescence does not constitute consent.
This approach follows that taken by the ad hoc International Criminal Tribunals. Rule 96(ii) of the ICTY/ICTR Rules of Procedure, which formed the basis of Rule 6.5(a) in the RPE rolling text, has proven itself both necessary and effectual in the cases before the Tribunals. The adoption of Rule 96(ii) by both ad hoc Tribunals was a clear recognition that consent is vitiated under circumstances which are coercive, and that to engage in an inquiry about consent is inappropriate, damaging and counterproductive. It is instructive to note that the Judges of the Tribunals did not find reason to amend this Rule in its many reviews of the Rules.
Rather, the ICTY Tribunal has reaffirmed the soundness of the Rule. In The Prosecutor v. Furundzija – a case which concerned sexual violence in captivity – the Trial Chamber noted that "any form of captivity vitiates consent." It also was noted by the Special Rapporteur on Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict that “consent is not an issue as a legal or factual matter when considering the command responsibility of superior officers who ordered or otherwise facilitated the commission of crimes such as rape in armed conflict situations.”
The Court must prevent the retraumatisation and humiliation of the victim which results from the tendering and production of such evidence. Thus, the Court must determine its admissibility in advance. Otherwise, the harm to the victim - and the deterrent to others from participating in the future - will have been caused, thereby depriving the victim of the benefit of the rule mentioned above.
Acquiescence does not constitute consentThe Rules should also clearly specify that acquiescence does not constitute consent. It is unrealistic to expect a victim of sexual violence to fight off her or his aggressor: victims may become paralysed from fear or may understand that fighting the aggressor would only lead to greater harm. This should not deprive the victim of justice. Thus, a rule specifying that acquiescence does not constitute consent would ensure that the Prosecutor does not have to prove such resistance in order to obtain a conviction for sexual violence.
Non-admissibility of the sexual conduct of the victim.
Justice is not served if the victim becomes the unwarranted focus of the accusations at trial. Without very clear safeguards, this danger exists whenever sexual violence is charged. All too frequently in cases of sexual violence, discriminatory assumptions have made the private sexual decisions or character of the victim the central focus. As a result, victims have been subjected to humiliating and traumatizing cross-examination by defense counsel of highly personal matters. Not only is this a violation of their rights to privacy and to non-discrimination. It is also a miscarriage of justice, a traditional instrument of impunity for crimes of sexual violence, and thus a potential barrier to the duty of the ICC to universal justice.
For these reasons, ICTY/ICTR Rule 96(iv) excluding evidence of prior sexual conduct is a necessary protection against discrimination prohibited by Article 21(3). It reflects the practice in common law countries of adopting exclusionary rules as well as the increasingly common informal practice in civil law countries.
The need for the rule is illustrated by the fact that even with such a rule in place, abuses have occurred at trial. In the Delalic case before the ICTY, defense counsel questioned a victim of sexual violence about a prior abortion and about her use of contraceptive pills. Despite Rule 96(iv), neither the Prosecutor nor the Court reacted quickly enough. The woman had to testify about these highly personal matters in open court and her testimony was aired on the public telemonitors where media and other members of the public were present. In a subsequent motion by the Prosecutor to redact this evidence, the Trial Chamber decided that the testimony was inadmissible under Rule 96(iv). In doing so, it discussed the rationale underlying the existence of such a provision:
Sub-rule 96(iv) seeks to prevent situations where the admission of certain evidence may lead to a confusion of the issues, therefore offending the fairness of the proceedings. Furthermore, when adopting Sub-rule 96(iv), due regard was given to the fact that in rape or other sexual assault cases, evidence of prior sexual conduct of the victims mainly serves to call the reputation of the victim into question. Moreover, it was considered that the value, if any, of information about the prior sexual conduct of a witness in the context of trials of this nature was nullified by the potential danger of further causing distress and emotional damage to the witnesses.[emphasis added]
All the reasons for which such evidence of a victim’s sexual history would be admitted are based on discriminatory and biased assumptions. It is discriminatory to assume that a person who has engaged in sex previously will consent to having sex on subsequent occasions or is open to having sex with anyone. Allowing the court to infer consent from sexual conduct denies the terrifying reality of sexual violence. It also denies the fundamental right of every person, male or female, to have control over sexual access to their bodies.
Finally, arguments in support of the admission of such evidence reflect a double standard. The contention that women will make false claims of rape to cover voluntary sexual activity or for revenge ignores the fact that rape claims are no more unfounded than any other crime and that there are tremendous costs to the victim—legal, social and cultural—that preclude most women from even discussing rape let alone charging it.
As noted by the Trial Chamber in the Delalic case above, the sexual conduct of the victim is particularly irrelevant to the types of crimes dealt with by the International Tribunal, and to be dealt with by the future ICC. The Trial Chamber noted that the Judges adopted Rule 96(iv) because of the nature of the crimes over which the International Tribunal has jurisdiction which include the systematic and widespread rape of women. Indeed, in situations of mass rape, for example, the sexual conduct of the victims will be irrelevant to the defense. Moreover, the ICC will most likely prosecute higher officials or particularly villainous lower officials. In such cases, defenses of consent for which the victim’s sexual conduct would be proffered will not be applicable.
The admission of evidence of the prior sexual conduct of the victim has been a major barrier to gender justice. Accordingly, the Women’s Caucus considers this recommendation to be key in ensuring that the ICC can provide redress for sexual violence.
Rule 6.4 PrivilegesThe Rules should include recognition of an absolute privilege for communications between a doctor, psychiatrist or counselor and a patient.
Such a privilege is especially important in cases of sexual violence. The need to protect victims and witnesses especially in cases of rape and sexual assault is stressed in the Report of the Secretary-General pursuant to paragraph 2 of the Security Council Resolution 808 (1993). Disclosure of therapeutic or counseling records is often sought not for their relevancy to the trial, but rather to humiliate and intimidate the witness and deter the victim from pursuing justice. Counseling records contain highly personal and sensitive information, often completely unrelated to the crime. Their disclosure could create great embarrassment and violate the privacy of the victim if they were revealed to the accused.
The relationship between counselor and patient is crucial to the healing and reintegration process that must occur for victims of trauma and sexual and gender violence. Without an assurance that what is said to a counselor will not be revealed to the accused, victims will either choose to not obtain counseling or if they go to a counselor, will not be completely open in what they say. This will impede the healing process. Moreover, the records made during counseling are inadequate for the truth-finding process of a trial, since the purpose of a counselor differs from the purpose of the justice system.
For these reasons, the loss of confidentiality is a great and unnecessary price compared to the dubious benefit to the accused of gaining access to such personal information. The ICC should encourage access to psychiatric services and other counseling to foster the healing process by ensuring that communications made in these relationships will be confidential. The Rules should provide an absolute privilege for communications made between victims and their counselors, similar to the absolute privilege currently provided for in Rule 6.4 for communications made in the context of a sacred confession.
Children and Disabled PersonsThe Women’s Caucus fully supports the recommendations contained in the Report of the Seminar on Protection of Victims, in particular of Special Groups of Victims, such as Children and Disabled Persons, held in Siracusa, Italy.
The ICC Statute includes several provisions relating directly and indirectly to child victims and witnesses. In particular, the Rome statute provides that the Court shall take appropriate measures to protect the safety and well-being of victims, having regard to the nature of the crime, particularly violence against children. The Rules must incorporate these provisions.
Children who are involved in ICC proceedings must be protected in order to ensure the best interests of the child as well as the fairness and effectiveness of the trial. This is consistent with the Convention on the Rights of the Child which states that in all actions concerning children, including those undertaken by courts of law, the best interests of the child shall be a primary consideration. A key to achieving this is the appointment of separate legal representatives for child victims and witnesses.
Testifying at trial can be particularly stressful for children. The courtroom is a strange and traumatic environment for a child. Procedural protections must therefore be provided to minimize the negative effects of the judicial process on children. This includes the appointment of a child support person to guide the child through the process; the availability of alternative means of testifying; and the creation of a child-friendly environment. This will ensure the proper prosecution of cases involving children, as well as fairness to the accused.
Disabled persons have special needs that must be accommodated by the Court in order to ensure that disabled accused persons enjoy the right to a fair trial and that disabled victims enjoy equal access to justice. The Rules should contain provisions addressing the special needs of disabled persons so that these needs are not overlooked by the Court.
In addition to the recommendations made in the Siracusa Report, the Women’s Caucus recommends that a support person be provided for disabled persons where necessary.