Submitted to the Preparatory Commission 
for the International Criminal Court

June 12 – 30, 2000

SUMMARY OF RECOMMENDATIONS

Elements of Crimes

Include General Statement of Gender Integration in the General Introduction: A general statement must be included in a chapeau to all the Elements of Crimes stating that sexual violence can be charged and prosecuted as genocide and other war crimes and crimes against humanity where the acts of sexual violence meet the elements of those other crimes.

Gender crimes must not be held hostage to the compromise on the Crimes against Humanity chapeau: Agreement on the formulations of the gender-specific crimes should not be predicated on the compromise regarding the chapeau to the elements of crimes against humanity, as suggested in footnote 12 to rape.

Delete the "Actively promote or encourage" language in the crimes against humanity chapeau: The language in the crimes against humanity chapeau which requires that the State or organization "actively promote or encourage" the criminal conduct in question would impermissibly limit the statutory jurisdiction of the Court over all crimes against humanity, including gender crimes, and must be eliminated.

Enslavement and Sexual Slavery should not be restricted to commercial transactions: The elements of both enslavement and sexual slavery in the rolling text which emphasize "purchasing, selling, lending or bartering" and similar deprivations of liberty would exclude many situations of slavery. The elements must therefore be modified to de-emphasize the commercial exchange element by incorporating footnote 8 regarding forced labour and servile status to the elements of sexual slavery in both war crimes and crimes against humanity and to enslavement, and adding the words “with or without pecuniary benefit”.

Do not add “universally recognized” to the term “fundamental rights” in the elements of Persecution: The suggestion in footnote 25 to persecution that the fundamental rights be universally recognized diverges from the Rome language, further narrows the crime as it is currently understood in international law, and should be rejected.

“Genuine consent” in the crime of enforced sterilization should be replaced by or qualified to include “voluntary and informed”. The term "genuine" consent in the elements of enforced sterilization should be replaced by or stated to include "voluntary and informed" consent so that enforced sterilization by deception is included in the crime. In addition, the principle that a person may be incapable of giving genuine consent if affected by certain incapacities should be reinserted.

Other sexual violence: The crime of “other sexual violence” should not be restricted to those of a gravity comparable to offences in subparagraph (g) of article 7(1) as currently done in the rolling text. Rather, it should be comparable to all the offences under the statute or at least all offenses in article 7(1) so as to include forms of sexual violence such as forced nudity which do not involve physical invasion of the victim.

Rules of Procedure and Evidence

The US Proposal regarding Article 98 and the Supplementary Agreement should be rejected: The proposal sacrifices the independence of the Court and is contrary to the Rome statute.

The Definition of victim should not be unduly restrictive: The definition of victim should be based on evolving international law, including the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The definition should recognize victims who have suffered environmental and cultural damage and incorporate a broader concept of family relations.

Allow Victim participation and notification at all appropriate stages of the proceedings. The Rules should ensure that the functions of all the organs of the Court, particularly the Registrar, include their full responsibilities toward victims.

Adopt a mechanism for ensuring non-disclosure of sensitive evidence: The Rules must ensure that evidence which may be private or endangers the safety of victims and witnesses is not disclosed without the knowledge of affected victims.

The Rules relating to evidence in cases of sexual violence should be strengthened. Rule 6.5, 6.5 bis and 6.5 ter in the rolling text is a dilution of the Rule in the ICTY and ICTR Rules of Procedure. The Rule should be modified to strengthen the prohibition against admitting evidence of the sexual conduct of the victim.

Privileges: All communications between the witness and medical doctors, psychiatrists, psychologists or therapeutic counsellors, whether secular or religious, and including those in the Victim Witness Unit, should be absolutely privileged, and not subject to disclosure at trial, unless the client consents to such disclosure.


WHY GENDER JUSTICE?

In February, 1997, a group of women attending the ICC Preparatory Committee session in New York came together to form the Women's Caucus for Gender Justice for an International Criminal Court. This group slowly expanded and formed a network of over 300 women's human rights organizations and 500 individuals. The Caucus' main mandate is to ensure that the International Criminal Court will be able to effectively investigate and prosecute crimes of sexual and gender violence.

Until recently, crimes of sexual and gender violence typically perpetrated against women have been largely ignored and left unprosecuted. The first international humanitarian law treaties either did not explicitly include rape and other forms of sexual violence or mischaracterized them as crimes against honour. The Nuremberg Tribunal ignored rape, while the Tokyo Tribunals included some prosecutions based on acts of sexual violence but did not charge it as such.

We have come a long way, however. The two Ad Hoc Tribunals for the former Yugoslavia and Rwanda have issued landmark decisions dealing with sexual violence. Most importantly, the Rome statute of the International Criminal Court contains gender provisions throughout the statute that will allow the Court to pursue the perpetrators of these crimes. The gender provisions of the Rome Statute reflects a recognition by the international community that crimes targeted specifically or disproportionately at women must be given the same degree of importance as crimes that are not sex-specific.

The gender provisions in the Rome statute were only the first step to ensuring gender justice. Now, it is imperative that the Elements of Crimes and the Rules of Procedure and Evidence do not attempt to weaken the substantive jurisdiction of the Court and establish the necessary protection and incentives for victims and witnesses of gender violence.

It is equally important that the Rules and the Elements do not alter the jurisdictional framework that was delicately negotiated at the Rome Diplomatic Conference. An independent ICC is a prerequisite to investigating and prosecuting all the crimes within the jurisdiction of the Court, including gender crimes.

The Women's Caucus calls upon the states who voted in favour of the Rome statute to show the same courage to preserve an independent and non-discriminatory Court. The stakes are too important to allow the ICC to be weakened for the sake of pacifying the exaggerated and unfounded concerns of a few countries or for the sake of expediency.

We urge the delegates to seize this opportunity to end injustice against women and men, and to put into practice the principles which unite all of humanity.

GENERAL CHAPEAU TO ALL ELEMENTS

The Need for a General Statement of Gender Integration

The Need for a General Statement of Gender Integration

The Need for a General Statement of Gender Integration

The Women’s Caucus recommends including a general statement of gender integration in any general introduction to the Elements of Crimes. The statement should state that sexual violence, like other acts, could be charged as other crimes within the jurisdiction of the Court, such as torture, mutilation, and inhuman treatment, where the acts of sexual violence meet the elements of those crimes.

The Women’s Caucus notes the recognition in footnote 1 of PCNICC/2000/WGEC/RT.4 regarding the need to consider possible additional language common to all types of crimes, such as comments on sexual crimes.

The Women’s Caucus understands the concern of some delegations that acts other than sexual violence could also be charged in numerous ways. For this reason, we suggest including language that makes clear that this principle applies to all acts, but with particular importance to acts of sexual violence. This is consistent with the obligation to mainstream gender issues.

The Women’s Caucus notes that this idea was originally contained in paragraph 3 of the elements of genocide in PCNICC/1999/L.5/Rev.1/Add.2. We note also that the paragraph was reframed and placed in footnote 1 in the genocide elements in PCNICC/2000/WGEC/RT.1. The footnote now states that the conduct of causing serious bodily or mental harm may include acts of torture, rape, sexual violence or inhuman or degrading treatment. While this footnote was originally proposed to all the genocide acts, it is now erroneously restricted to the conduct of ‘causing serious bodily or mental harm’. This excludes the broader uses of sexual violence to accomplish genocide. For example, acts of rape and torture may form part of the conduct of imposing measures intended to prevent births. In theAkayesucase, the ICTR Trial Chamber observed:

In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother’s group.

Furthermore, the Chamber notes that measured intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate. ¹

A statement of gender integration in the general introduction for all the categories of crimes would ensure that sexual violence, which occurs mostly to women, is treated with the same seriousness as crimes which are inflicted on both men and women. This is required by the principle against gender-based discrimination in the application and interpretation of law, codified in article 21(3) of the Rome Statute, and based on various human rights and humanitarian treaties. ²

If sexual violence is not charged as the other crimes which it also constitutes, the prosecution of sexual violence will be marginalized and important aspects of the harm suffered will be ignored. For example, it has now been recognized that sexual violence is one of the most lasting forms of torture which is most often inflicted upon women. If sexual violence is marginalized and not integrated into crimes such as torture, this recognition could be lost.

Moreover, the language "also constituting a grave breach of the Geneva Conventions" found in article 8(2)(b)(xxii) and “also constituting a serious violation of article 3 common to the four Geneva Conventions” in article 8(2)(e)(vi) at the end of the enumerated sexual violence crimes was included in order to signal that these crimes can also be charged as other listed crimes of that dimension. ³

This, in turn, reflects the jurisprudence of the ICTY and ICTR, where acts of sexual violence have been charged and/or adjudged as constituting one or more of the enumerated grave breaches of humanitarian law. For example, in Tadic, sexual violence was charged as willful killing and torture, though not proven causally as willful killing. Rape also has been charged and recognized as torture by the ICTY Trial Chamber in the cases of Furundzija and Delalic. The Foca indictments which have been confirmed by the Trial Chamber charge rape and sexual violence as torture and enslavement. ⁴ The historicAkayesudecision of the ICTR adjudged crimes of sexual and reproductive violence as acts of genocide. It also recognized forced nudity and sexual entertainment as inhumane acts under crimes against humanity at the same time as it recognized rape as a form of torture. ⁵

One cannot rely on this jurisprudence, however, to preserve the gender integration principle. ⁶ The only assurance that a Prosecutor will follow this jurisprudence so that the principle remains in practice is to clearly state the gender integration principle.

In sum, a general statement of gender integration would therefore be consistent with international law and would ensure that sexual violence is treated with the same degree of seriousness as other crimes.

CRIMES AGAINST HUMANITY

Gender crimes must not be held hostage to the compromise on the chapeau

The Women's Caucus is seriously concerned about the statement in footnote 12 to rape in the Elements rolling text (PCNICC/L.5/Rev.1/Add.2) which states that agreement on the formulations of the gender-specific crimes is predicated on the compromise regarding the chapeau. Gender issues should not be used as a pawn for agreement on other issues.

The proposal contained in PCNICC/1999/WGEC/DP.39 to exclude crimes committed by husbands against wives, parents against children, and other crimes relating to family matters is a blatant violation of international law and of the Rome statute. It discriminates against women contrary to article 21(3) of the statute by trying to exclude from the jurisdiction of the Court crimes which affect women disproportionately.

International law condemns crimes of sexual violence and gender persecution of the magnitude of those recognized in article 7 of the ICC statute, whether or not they relate to family, culture or religion. The unanimous Declaration on the Elimination of Violence against Women affirms:

"States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination. States should pursue by all appropriate means and without delay a policy of eliminating violence against women." ⁷ [emphasis added]

The principle that family, religion or culture does not justify such violence has also been expressed by the Committee on the Elimination of All Forms of Discrimination Against Women in their interpretation of the Convention and the Vienna Declaration. ⁸

Moreover, the proposal in PCNICC/1999/WGEC/DP.39 would exclude racial crimes, such as crimes committed against persons in interracial or inter-ethnic marriage, or the prohibition of such marriages. These acts should not be excluded from the ICC's jurisdiction simply because they relate to family matters. ⁹

International law requiring states to eliminate slavery and slave-like practices applies explicitly to familial situations. ¹⁰ In addition, the Convention on the Rights of the Child requires states to protect children from harm at the hands of their parents. ¹² Accordingly, any exclusion of the crimes recognized in article 7(1) because they occur in the family or are based on tradition, culture or religion cannot be accepted by the Preparatory Commission. It is likewise not a justifiable bargaining position deserving accommodation.

The Rome statute is a hard-won and historic landmark codifying the evolution of customary law regarding sexual violence and gender violence. By standing firm, delegates were successful in including these crimes in the statute and thereby ending the discriminatory impunity for crimes against women. These negotiations of the Elements of Crimes must not undo this long-overdue achievement.

To make any exception - direct or indirect - for gender crimes that meet the criteria of article 7 would convert the Rome Statute from an historic and principled instrument of gender justice into an instrument of discrimination. Such an exception would undermine the universal application of the Court since it would not have jurisdiction over many crimes against women.

The crimes of sexual and gender violence under the Rome statute are egregious crimes, often constituting jus cogens crimes such as torture, enslavement and inhuman treatment which are never permissible, regardless of the context. The ICC's jurisdiction over these non-derogable crimes cannot be compromised, either explicitly or implicitly, in order to achieve a negotiated settlement in the ICC PrepCom.

The Chapeau to the Crimes against Humanity Elements should not include “actively promote or encourage”

The proposed statement in the chapeau to the crimes against humanity elements which requires that the State or organization "actively promote or encourage" the criminal conduct in question threatens to greatly limit the statutory jurisdiction of the Court. The "actively promote or encourage" language should be eliminated and the Court should be given the flexibility to decide which types of conduct satisfy the statutory threshold requirements for crimes against humanity.

The criteria under the Rome statute is more than sufficient to meet the requirements under international law and to ensure that only the most serious crimes are prosecuted by the Court. Article 1 states that the ICC shall have jurisdiction over persons for the most serious crimes of international concern. Under article 7(1) and (2), the course of conduct must be “widespread or systematic”, “directed against a civilian population”, and “pursuant to or in furtherance of a state or organizational policy” to constitute a crime against humanity. These provisions were included, among other things, to ensure that domestic crimes are not included in the jurisdiction of the Court. Further limitations are unwarranted.

In particular, the requirement of a state or organizational policy should not be restricted further to require state or organizational action. International law has recognized that failure to punish or prevent certain conduct can constitute a policy to commit crimes against humanity. ¹³ For example, a state or organization may knowingly refrain from taking action to stop certain crimes because it suits their interests. In these situations, persecuted or terrorized populations are left without protection or recourse to domestic justice systems by virtue of the government’s policy to ignore these crimes. International criminal jurisdiction is necessary and intended for situations where a state or organization knowingly refrains from taking action to stop such crimes. ¹⁴ In such situations, state inaction leaves independent terrorist groups or bands as well as lower-level officials free to commit atrocities. Those who actually commit the crimes may be secretly supported, independently motivated, or taking advantage of the absence of the rule of law. If the Prosecutor is required to prove that the state or organizational policy is an active or affirmative one, the more significant the dimension of the crimes, the less subject they will be to the Court’s jurisdiction. Such a requirement would leave the persecuted and terrorized populations without protection or recourse not only to meaningful domestic justice but also to international justice. It is therefore particularly important that the ICC be able to exercise its jurisdiction in these situations.

The ICTY Trial Chamber in the case of Prosecutor v. Kupreskic et al, examined the case law “to answer the question of whether the offence…may be committed by individuals not acting in an official capacity, and in [such] case, whether the offence must be approved of or at least condoned or countenanced by a governmental body for it to amount to a crime against humanity.” The Trial Chamber concluded:

While crimes against humanity are normally perpetrated by State organs, i.e. individuals acting in an official capacity such as military commanders, servicemen, etc., there may be cases where the authors of such crimes are individuals having neither official status nor acting on behalf of a governmental authority. The available case-law seems to indicate that in these cases some sort of explicit or implicit approval or endorsement by State or governmental authorities is required, or else that it is necessary for the offence to be clearly encouraged by a general governmental policy or to clearly fit within such a policy. ¹⁵ [emphasis added]

“Implicit approval or endorsement” encompasses situations of omission and requires a far different kind of proof from that required by “active encouragement or promotion.” Moreover, the phrase “general governmental policy” encompasses policies of omission as well as commission. Use of the term “general” policy further refutes the contention that there must be proof of an “active” policy. A general governmental policy of failure to investigate or punish such crimes is recognized as encouraging the commission of such crimes. ¹⁶

Cherif Bassiouni also recognizes that actions by individuals can be further to a state policy even without the need for state action. He states:

Mass victimization, shocking as it is, must not be confused with “crimes against humanity,” for when such crimes, abhorrent as they may be, do not rise to the level of what is now well established under international law, it tends to trivialize “crimes against humanity.” Accordingly, this writer believes that: 1) the international or jurisdictional element of “state action or policy” for state actors is necessary; 2) it should be extended by analogy to non-state actors when their conduct manifests an express or implied “policy”. ¹⁷[emphasis added]

Requiring proof of an active state or organizational policy imposes an unrealistic and unnecessary burden of proof on the Prosecutor. Such proof may be non-existent or impossible to obtain as most current violators do not provide the paper trail left by Nazi officials and collaborators. Indeed, to require active state or organizational policy will most certainly instruct those responsible for crimes against humanity that a careful policy of omission will defeat efforts to bring them to justice.

It is precisely for this reason that the crime of disappearance has been defined in international law and the Rome Statute as requiring only the acquiescence of a state or organization. The rolling text for the elements of enforced disappearance of persons reproduces this. If the chapeau language overrides this specific element, the crime of enforced disappearance would be largely nullified. On the other hand, it would be discriminatory and illogical if the specific elements of enforced disappearance overrode the chapeau language so that the crime of enforced disappearance had a different threshold than the other crimes. There is no principled reason why acquiescence should be sufficient to constitute an attack in the case of disappearances and not in the case of rape, sexual slavery or the other crimes. Preventive and punitive measures are no less necessary or required by international law in the case of rape than in the case of forced disappearances.

Furthermore, the current chapeau language would nullify the statutory principles of command and superior responsibility under article 28 with respect to crimes against humanity. If the policy of superiors is to refrain from preventing or punishing the acts, officials and agents would escape sanction because of the absence of an “active” policy.

The crimes against humanity before the Court are based on non-derogable rights and are of an egregious dimension. Tolerating or acquiescing to their commission on a widespread basis properly amounts to a policy to commit the attack. There is ample precedent in international law enabling the Court to interpret the policy element so as to exclude isolated acts or common crime waves without improperly limiting the jurisdiction of the Court. For this reason, "actively promote or encourage" should not be included in the chapeau. Thus, the Court should be given the flexibility to infer state policy from the criminal conduct and context.

Specific Crimes

Enslavement and Sexual Slavery

Article 7(2)(c) of the Rome statute states that "enslavement means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking." The proposed elements to both enslavement and sexual slavery unduly limit the crime by listing illustrative acts of a commercial nature and tying the deprivation of liberty to such acts. The definition of enslavement in article 7(2)(c) is the essence of enslavement and constitutes an already high standard. We continue to believe that the list should be abandoned and the definition in the statute adopted as sufficient. Alternatively, the commercial exchange element should be de-emphasized by incorporating footnote 8 to enslavement (in PCNICC/1999/L.5/Rev.1/Add.2) into the elements and by adding the words “with or without pecuniary benefit” to the elements of both crimes.

The elements of enslavement and sexual slavery in the rolling text which emphasize "purchasing, selling, lending or bartering" and similar deprivations of liberty risk an interpretation which would exclude many situations of slavery recognized under international law. Though purporting to be an illustrative list, the enumerated acts all involve some form of commercial exchange. The phrase “deprivation of liberty” is limited by the term similar which could be interpreted to mean having a similar commercial element. Neither slavery nor sexual slavery depend upon a purchase or sale type transaction or upon such total control over the victim.

At the same time, the Women’s Caucus notes footnote 8 to enslavement (in PCNICC/1999/L.5/Rev.1/Add.2) which states that the “deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status”. If the list is maintained, this language is essential to ensuring that the crime of enslavement is not restricted to commercial transactions.

The Women’s Caucus is greatly concerned that reference to forced labour and servile status was removed in the last PrepCom with regard to the war crime of sexual slavery. ¹⁸ It hopes that the proposal will be granted the attention and full discussion that it deserves in the Elements Working Group at this PrepCom session. The removal of this footnote to the crime of sexual slavery in the last PrepCom was another attempt to accomplish what was attempted in the proposal of 11 Arab states in PCNICC/1999/WGEC/DP.39, namely, to exclude certain crimes against women from the jurisdiction of the Court.

Moreover, while it is important to refer to trafficking in the elements or footnote of this crime, such reference does not remedy the problematic restriction of slavery to commercial examples since trafficking involves a complex web of commercial transactions.

Footnote 8 would help to ensure that the crime of enslavement include slavery-like conditions such as debt bondage, forced marriage and child labor which do not require purchase or sale, etc. These are recognized as slavery-like conditions and are prohibited under the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery and customary international law. ¹⁹

The addition of sexual slavery to the enumerated crimes under the Rome statute was designed to codify the evolution in customary law recognizing a number of situations as slavery. For example, during the Second World War, 200 000 women from Korea, the Philippines and other Asian countries were kept in rape centres and forced to provide sexual services to Japanese soldiers. ²⁰ These women were rarely purchased or sold. They were kidnapped, coerced and deceived into sexual slavery. ²¹ As the Special Rapporteur on Systemic Rape, Sexual Slavery and Slavery-like Practices concluded:

the Japanese military’s enslavement of women throughout Asia during the Second World War was a clear violation, even at that time, of customary international law prohibiting slavery. ²²

Significantly, these crimes were not prosecuted before the Tokyo Tribunal notwithstanding that this was one of the most brutal examples of systematic sexual violence in the history of humankind. This illustrates the importance of not unduly restricting the elements of sexual slavery.

Other examples also make clear that neither sexual slavery nor enslavement need involve a commercial transaction. For example:
- the prisoners in the Nazi concentration camps who were forced to work were victims of slavery even though they were not acquired through some form of commercial exchange;
- In the conflicts in the former Yugoslavia and Rwanda, women were kidnapped, held captive, and repeatedly raped. The on-going trial in theFocacase at the ICTY is an example of a situation of sexual slavery not involving a commercial transaction. In that case, women were detained in a house of a military officer and were subjected to repeated rapes and sexual assaults at night. They had nowhere to go as they were surrounded by Serbs, both soldiers and civilians. This situation was charged as enslavement.
- In Uganda, rebels continue to abduct children and use them as forced labourers, child soldiers and sexual slaves. Girls as young as 12 are given to commanders as “wives”; ²³
- In Sierra Leone in January, 1999, a local rebel commander ordered all virgin girls to report for a physical examination. Those who were verified as virgins, mostly between twelve and fifteen years old, were ordered to report each night for sexual abuse by the rebel fighters. The victims did not have the freedom to leave or to refuse to comply with the orders. ²⁴
- In Rwanda, Hutu men forced women who feared for their children’s or their own safety to enter into “temporary marriages” and to perform sexual and domestic services. ²⁵
- In Algeria, paramilitaries kidnap women from the streets and maintain them in a state of sexual slavery. ²⁶
- Women and girls have been forced into “marriages” in Burma or forced to work as porters and minefield sweepers for the military. ²⁷
- In Liberia, there are reports of women and girls who are held as sexual slaves by combatants and forced to work as cooks. ²⁸

The Special Rapporteur on Systemic Rape, Sexual Slavery and Slavery-like Practices in armed conflict identifies all these situations as slavery:

In addition, this report emphasizes that practices such as the detention of women in "rape camps" or "comfort stations"; forced temporary "marriages" to soldiers; and other practices involving the treatment of women as chattel, are both in fact and in law forms of slavery and, as such, violations of the peremptory norm prohibiting slavery. ²⁹

The Special Rapporteur further notes that an exchange of money was not a necessary element of the crime. ³⁰

The elements of sexual slavery have a further serious problem. They threaten, once again, to relegate certain forms of sexual slavery to enforced prostitution. For example, the situation of the so-called "comfort women" was incorrectly labeled as enforced prostitution. They were not prostitutes. They were sexual slaves.

The crime of sexual slavery was included in the Rome Statute in significant part to rectify this misnomer and to remove the negative connotation attached to the word “prostitution”. This important achievement in the Rome statute must not be revoked through the elements of crime. If the elements of sexual slavery continue to emphasize the commercial exchange element, situations of sexual slavery which do not contain such an exchange, such as situations similar to the "comfort women" experience, could be inappropriately relegated to enforced prostitution.

To rectify this, the elements of sexual slavery in the rolling text must therefore be modified to de-emphasize the commercial exchange element. The footnote regarding forced labour and servile status should be incorporated into the elements of sexual slavery in both war crimes and crimes against humanity, and into the elements of enslavement. In addition, the words “with or without pecuniary benefit” should be added to the elements of both crimes.

Enforced sterilization: "Genuine" vs. "Voluntary and Informed" Consent

The Women's Caucus appreciates the change in the footnote in the rolling text of war crimes which states that the deprivation of biological reproductive capacity does not include birth control measures with short-term effect. This change should be reproduced in the rolling text of crimes against humanity in order to ensure that the crime of enforced sterilization is not deprived of all meaning. (See Women's Caucus commentary to the March 2000 PrepCom session.) While we believe that the text is clear without the need for the footnote, we accept this footnote as revised and oppose any further change. ³¹

Our remaining concern with regard to this crime involves the use of the term “genuine”. We recommend either:

1. the term "genuine" appearing in the element of enforced sterilization be replaced with "voluntary and informed" consent;
or
2. that the footnote to genuine consent in enforced sterilization specify that it includes both voluntary and informed consent.

In addition, we recommend that a footnote be reinstated so that it is understood that consent does not exist if affected by natural, induced or age-related incapacity in the case of enforced sterilization.

“Genuine” is defined as “not fake or artificial, real, true, sincere”. This term is not used in medical practice and could be read to exclude the legal and ethical principle that consent must be informed. For example, this language creates the danger that enforced sterilization involving deception and even coercion will not be a crime under the statute. The principle that medical treatment must be informed and voluntary is fundamental and is particularly crucial where a person’s reproductive capacity is at stake.

The Women's Caucus notes that at the last PrepCom session, footnote 17 in the war crimes rolling text³² which is attached to rape, enforced prostitution and other sexual violence, was removed from the elements of enforced sterilization. This footnote states that consent does not exist if affected by natural, induced or age-related incapacity. It was removed from enforced sterilization so that the term “genuine consent” for this crime was not restricted by this criteria. At the time, we urged its removal out of concern that the term “genuine” might be limited to situations of incapacity. Upon reflection, however, the removal of the footnote from enforced sterilization and its retention in rape, enforced prostitution and other sexual violence did not ameliorate the problem. Its absence makes it appear that the principle does not apply to enforced sterilization. This principle should therefore be reinserted so that it is understood that consent does not exist if affected by natural, induced or age-related incapacity also in the case of enforced sterilization.

The Women's Caucus also notes that in Rule 6.5 in the Rules of Procedure and Evidence, the drafters used "voluntary and genuine consent". This may create the impression that the genuine consent which appears in the elements of crimes does not include the concept of being voluntary. It is therefore recommended that both the Rules and the Elements be consistent and that the terms be understood to include "voluntary and informed".

Other Sexual Violence

The crime of “other sexual violence” should not be restricted to those of a gravity comparable to offences in article 7(1), subparagraph (g), as currently done in the rolling text. Rather, it should be comparable to all the offences under the statute or at least all offenses in article 7(1). The proposed limitation to paragraph. 7(1)(g) would mean that sexual violence comparable in gravity to other grave breaches or serious violations - which do constitute war crimes - would not also constitute a crime against humanity even if carried out on a widespread or systematic basis.

The current elements would also narrow the crime from its current application under international law. The jurisprudence of the ad hoc Tribunals recognizes that there are degrees of sexual violence which may involve no touching at all. For example, the existing jurisprudence recognizes forced nudity as a crime against humanity. ³³ However, under the current elements, forced nudity may be read out of sexual violence because it does not involve physical invasion and therefore may not be considered comparable to the other sexual violence crimes in paragraph 7(1)(g).

Persecution

The proposal in footnote 25 (in PCNICC/L.5/Rev.1/Add.2) that the fundamental rights be qualified as being “universally recognized” diverges from the Rome language and is a further retreat from current international law. Persecution has, since Nuremberg, been understood to involve acts which may not be violent or even severe standing alone, but, when taken together and in light of the fact that they are targeted against a particular group, amount to a crime against humanity. For example, the persecution of the Jews under Nazi Germany involved a progression of persecutory treatment, starting with the deprivation of rights of citizenship and economic and property rights, and then leading to arrest and confinement in concentration camps, torture, deportations, slave labour, murder and finally extermination. It was not necessary that the rights infringed at the earlier stages of the persecution were "universally recognized" or even that they were fundamental violations of international law. Rather, persecution was proven by showing deprivation of rights accorded under national law.

It is sufficient that there be consensus among states that the rights are fundamental. The ICTY Trial Chamber in the Kupreskic case defined persecution as the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5. The Trial Chamber further noted that the definition of persecution under the Rome Statute is narrower than customary international law because it requires a connection to an act under article 7 or crime under the statute. Given the limits already built into the definition of persecution under the Rome statute, it is particularly imperative that the elements of persecution not limit it further.

It is important to note that human rights need not be “universally recognized” for them to be universal, fundamental or even jus cogens. If it were, this would lead to the ludicrous outcome that violation of rights would not be condemned until all violators agreed. The international condemnation of apartheid showed that universal recognition is not necessary.

Moreover, the language of “universally recognized” fundamental rights was decisively rejected at the Beijing Conference on Women. It had been proposed by some states to qualify the human rights of women by the phrase “universally recognized”. This proposal is another indirect attempt to limit the jurisdiction of the Court in a discriminatory way.

Enforced Disappearances

The elements of enforced disappearances in the rolling text require that the same accused person commit the different stages of the crime. The nature of the crime of enforced disappearances is such that many actors are involved. It is unrealistic to expect that one person would be involved at all the different stages. Thus, the elements of enforced disappearances should be changed to reflect the nature of the crime.

RULES OF PROCEDURE AND EVIDENCE

Explanatory Note: This commentary is based on PCNICC/2000/WGRPE/INF/1 and PCNICC/2000/L.1/Rev.1/Add.1. Where Rule numbers have been changed in the former document, both the old and new numbers are listed.

Proposal by the United States regarding Article 98

The U.S. Proposed Rule under Article 98 and the Supplemental Document to the Rome Treaty must be rejected without compromise. The proposal sacrifices the independence of the Court and is contrary to the Rome statute. The proposal re-introduces the issue of Security Council control over the cases that can come before the ICC which was rejected at the Rome Treaty Conference.

The proposal for Article 98 would introduce into article 98 the concept of agreements between the Court and states or organizations. Article 98(2) only allows an exception in the case of agreements between two states: the state requested to surrender someone to the Court, and a 'sending State' who has surrendered someone to the other state. The US proposal refers to "relevant international agreement" which does not exist in Article 98. Rather, Article 98 deals only with agreements between ‘sending states’ and ‘requested states’. The proposal would therefore expand Article 98(2) to include not only agreements between such States, but also agreements between the ICC and States or other entities such as the United Nations. The proposed rule for Article 98 would allow future negotiations between individual States and the Court for exclusions under Article 98(2) not contemplated in the statute. This would enlarge the narrow exception to the Court's jurisdiction regime that was carefully negotiated in Rome. The proposal therefore constitutes a fundamental amendment to the Statute.

Regarding the US Proposal for the Relationship Agreement, the requirement that the 'directing State' consent to the surrender of one of its nationals would inject the consent of the State of the nationality of the accused as one of the conditions to the Court exercising its jurisdiction. Such a requirement was rejected at Rome. This would constitute a revision of Article 12(2) which requires the consent of either the nationality state or the territorial state.

If the non-State Parties do not consent, the Proposal would prevent the Court from exercising its jurisdiction except where the Security Council expressly authorizes measures under Chapter VII against the specific 'directing State'. The permanent members would thereby have a veto over Court proceedings, including those against their own nationals. Again, this is an alteration of the carefully negotiated provisions of the Rome statute, in this case, to the role of the Security Council under Articles 13 and 16. This control of the Security Council would seriously affect the independence and legitimacy of the Court.

Definition of Victim (Rule Q)

The definition of victim should be based on evolving international law, including the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Victims’ Declaration) and should recognize victims who have suffered environmental and cultural damage. The definition should also adopt a broader concept of family relations.

The definition of victim should include persons in a significant relationship with the direct victim. Since the Victims’ Declaration, international conferences including the Beijing and Cairo Conferences, have developed a broader understanding of family. ³⁴ This is consistent with the wording “in respect of victims” which was included in article 75 to include a broader understanding of family not restricted to those members that are legally recognized. ³⁵

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 bodily or mental harm as a result of such damage, there is a larger collective concern. This collective harm may ultimately have significant impact on the members of the collectivity regarding their future livelihoods. 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 Victims

The Women's Caucus supports the participation of victims at all stages of the proceedings and appreciate the Rules relating to victim participation in the rolling text. The following Recommendations are aimed at correcting some errors in the text, and at strengthening the public notice requirement.

1. Rule D/Rule 6.30 quarter should be modified as follows:
i) delete “except in proceedings provided for in Part 2” in subrule 1, so that the Rule applies to all stages of the proceedings;
ii) include the need for the Court to give notice to the victim community in general of the decision by the Prosecutor not to proceed with an investigation or prosecution, with reasons;
iii) include the need for the Court to give public notice to the victim community in general of all stages of the proceedings unless the Court decides that notice will risk the integrity of the proceedings or the safety of victims.

2. Rule 2.6 should be modified to state that the Prosecutor “shall” give notice by general means to reach groups of victims “unless” he or she determines that such notice could pose a danger to the investigation or to victims and witnesses.

3. Rule 4.13 in PCNICC/2000/WGREP/INF/1 should be modified as follows:
i) the addition to Rule 4.13(2)(c) “who appear before the Court” should be deleted;
ii) add a provision to enable, where appropriate, the Victim and Witness Unit to act as legal counsel for victims in Rule 4.13(2)(b)(i).

The right of victims to participate in the proceedings was 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 and to advance the healing of individuals and of society. The codification of victim participation in article 68(3) in the Rome statute reflects the fact that many court systems around the world have successfully allowed victims to participate in criminal trials. In fact, the trend around the world is to increasingly admit victim participation in the proceedings. This reflects a growing recognition that justice requires more than putting someone in jail. Some of the negative experiences in the ad hoc Tribunals underscores the importance of these provisions for the International Criminal Court.

In Rule 6.30quarter/Rule D, subrule 2 deals with notice to victims of the decision by the Prosecutor not to initiate an investigation or prosecution. However, Rule 6.30 quarter, subrule 1 states that the Rule applies to all stages of the proceedings except in proceedings provided for in Part 2. If this refers to Part 2 of the Rome Statute, this creates a contradiction since the proceedings referred to in subrule 2 is provided for in Part 2 of the Statute. If this refers to Part 2 of the Rules (or Chapter 3), this should be clarified.

We note further that subrule 2 only provides for notice to victims or their legal representatives who have already participated in the proceedings or those who have communicated with the Court for the matter in question. Given that this decision occurs in the earliest stages of the proceedings, it is unlikely that many victims will have participated in the proceedings or communicated with the Court. Notice to victims of such decisions is important to ensure that victims trust the administration of justice. If victims do not know or understand why the Prosecutor has decided to not pursue their aggressors, they will become suspicious of and hostile to the Court. For this same reason, the Women’s Caucus recommends that such notice be accompanied by reasons for the Prosecutor’s decision.

This rule in Rule 6.30quater contrasts with Rule 2.6 in the current rolling text which deals with giving notice to victims of the procedure to obtain authorization by the Pre-Trial Chamber to commence an investigation. Rule 2.6 does not contain the same restrictions regarding which victims may be notified. However, it states only that the Prosecutor “may” give notice by general means if he or she determines that such notice does not pose a danger to the investigation or to victims and witnesses. This should be modified to make clear that such general notice is mandatory except if the Prosecutor decides and the Court agrees that the notice would pose those dangers. The notice requirement should be an obligation rather than a purely discretionary matter while the “unless” clause takes care of the important concerns to protect the process of adjudication and the safety and well-being of victims and witnesses.

In Rule 4.13 dealing with the functions of the Victim and Witness Unit, PCNICC/2000/WGRPE/INF/1 has added “who appear before the Court” in subrule 3 on the stated basis that it is consistent with article 43(6) of the Statute. This addition was a substantive change that was unnecessary given that subrule 1 is confined to the categories of victims as defined in article 43(6). This is not without effect. It eliminates the ability of the VWU to reach out to the victim community in order to assist them in participating in the proceedings. This phrase should therefore be removed or be modified to those “eligible” to appear before the Court.

In addition, subrule (b) of Rule 4.13(2) states that the VWU shall advise witnesses “where to obtain legal advice”. This rule is vaguer than Rule 4.13(2)(c) which mandates the Unit to “assist” victims in obtaining legal advice. In some circumstances, the VWU may need to step in and provide legal advice itself, for example if a witness is unrepresented at a hearing and an issue arises which requires immediate legal counsel for that witness. ³⁶ The Rules should therefore leave open this possibility by stating that where appropriate, the VWU can provide legal advice to the witnesses. In many cases, enabling the VWU to fulfill this function will best serve both the interest of efficiency and administration of justice.

Indeed, events before the ad hoc Tribunals, particularly the ICTY, have demonstrated the importance of affording victim-witnesses representation by counsel. For example, in Delalic, a witness had to testify to a past abortion and prior contraceptive use in open court because there was no one who protected her; in Furundzija, the Prosecutor turned over parts of counselling records before asserting the rights of the witness to withhold such material. The Rules should therefore leave open the possibility of the VWU acting as counsel to victims or witnesses in such circumstances by including in Rule 4.13(2)(b) that, where appropriate, the VWU can provide legal advice to the witnesses.

Disclosure of Evidence or Information affecting Victims' Interests

Pursuant to Articles 68(1) and (5), the rules must provide a process to allow victims, at both the pre-trial and trial phases, the ability to ensure that the Prosecutor does not disclose information to the defence which would endanger their safety or violate their rights to privacy.

The Rules must 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. 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 defence where its disclosure may lead to the grave endangerment of the security of a witness. The restrictions on disclosure in Rule 5.32 is insufficient to protect against this problem. The restrictions depend on the Prosecutor's ability to identify evidence which would endanger a victim's safety or privacy. This may not always be possible. ³⁷ Accordingly, another mechanism must be included.

For this reason, we recommend the following options:

i) The Rules can provide that victims or witnesses be notified throughout of their right to participate at the status hearings under Rule 5.18.
ii) 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 may affect a witness' right to 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 and consulting with the victim, their legal representative or the Victim Witness Unit. The victim should be provided with enough advance notice so that he or she can request an ex parte in camera hearing 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.
iii) The Victim and Witness Unit should also be empowered under Rule 4.13 to review all evidence or information that is to be disclosed to the defence, and if necessary, inform any victims or witnesses 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.

General Provisions relating to Victims

Rule 6.1 (a) in PCNICC/2000/WGRPE/INF/1 should be modified to include “women and victims of sexual and gender violence”.

The Women’s Caucus greatly appreciates this Rule which states that the Chamber shall take into consideration in particular the needs of children, elderly persons and persons with disabilities. However, we believe that such a general principle should include all the categories of people referred to in article 68(1). For this reason, we recommend the addition of “women and victims of sexual and gender violence” at the end of the Rule.

Rules relating to Cases of Sexual Violence: Rule 6.5, 6.5 bis, and 6.5 ter

The Women’s Caucus appreciates the principles in Rule 6.5, paragraphs (a) to (d) which explain the irrelevance of drawing inferences of consent in cases of sexual violence. We believe that the proposed draft of these Rules represents an important step toward effective protection of victims of sexual violence against defence efforts to collect and admit irrelevant and inflammatory evidence. At the same time, the Women’s Caucus recommends that three changes be made in order to correct weaknesses and clarify ambiguities with the current Rule.

In particular, we recommend the following modifications to these draft Rules:

1. The phrase “subject to article 69(4)” in Rule 6.5 bis should be removed in order to eliminate redundancy and make clear that the Rule intends a very strong general presumption against the admissibility of this evidence”
2. The phrase “or evidence of the words, conduct, silence or lack of resistance of a victim or witness as referred to in paragraphs (a) through (d) of Rule 6.5” in Rule 6.5 ter should be removed;
3. The term “be guided by” should be replaced by “apply” in Rule 6.5 ter.

Rules 6.5, 6.5 bis and 6.5 ter in the rolling text dilute the Rule in the ICTY and ICTR Rules of Procedure. In his remarks to the Fourth Session of the Preparatory Commission for the ICC on 20 March, 2000, Judge Richard May stated that the Judges of the Yugoslavia Tribunal believe that the Tribunal's rules governing the admission of evidence in cases of sexual assault have been instrumental in protecting victims of sexual violence without infringing the rights of the accused. He stressed that the rules were devised by the judges taking into account the patterns of conduct specific to war crimes, crimes against humanity and genocide committed in the former Yugoslavia.

Pursuant 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.

Historically, however, judges have been guilty of applying discriminatory evidentiary rules and practices, which revictimize female victims in trials of sexual violence crimes, divert attention from the real issue and create impunity for perpetrators of sexual violence. For these reasons, the Rules must clearly limit the admissibility of inflammatory and irrelevant evidence as well as the drawing of discriminatory inferences in cases of sexual violence crimes.

Recommendation 1: Sexual conduct of the Victim (Rule 6.5 bis)

The Women’s Caucus recommends that the phrase “subject to article 69, paragraph 4” be deleted because it is redundant. It threatens to undermine the purpose of the Rule and the principles established in articles 69(4) and 21(3).

Article 69(4) of the Statute applies, a fortiori, to all decisions on the admissibility of evidence. There is, accordingly, no need for the Rules to repeat the fundamental principle that governs application of this Rule, like any other. By specifying that Rule 6.5 bis is “subject to” art. 69(4), the language suggests that there is some special assessment required by the Court in every instance. Thus, instead of creating a very strong presumption against admissibility, the Rule is likely to have the opposite effect. Accordingly, it is necessary and appropriate to remove the “subject to” language.

The exclusion of evidence of the victim’s sexual conduct is essential to the fairness of the proceedings in sexual violence cases. It is particularly necessary to protect against discriminatory assumptions about female victims, in accordance with 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, defence counsel questioned a victim of sexual violence about a prior abortion and about her use of contraceptive pills. Her testimony was aired on the public telemonitors where media and other members of the public were present. In granting a subsequent motion by the Prosecutor to redact this evidence from the official record, the Trial Chamber discussed the rationale underlying the ICTY’s absolute rule:

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. ³⁸

Arguments in support of the admission of such evidence reflect a double standard. The assumption that previous or other sexual activity permits an inference of consent in the situation charged is profoundly discriminatory. Moreover, 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 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. Moreover, the ICC will most likely prosecute higher officials or particularly villainous lower officials for their instigation or knowing toleration of such offenses. Most often, the cases will also involve multiple acts of rape or multiple victims and the coercive circumstances will be undeniable. In such cases, defences of consent for which the victim's sexual conduct would be proffered, would be irrelevant and even absurd. The Rule ought not be drafted in such a way as to suggest otherwise.

The draft Rule implicitly recognizes that the admission of evidence of the prior or other sexual conduct of the victim has been a major barrier to gender justice. The Women's Caucus considers eliminating the “subject to” clause, to be more consistent with the Statute.

Recommendations 2 and 3: Ruling on admissibility of other evidence of consent (6.5 ter).

- Delete “or evidence of the words, conduct, silence or lack of resistance of a victim or witness as referred to in paragraphs (a) through (d) of Rule 6.5” in 6.5 ter (a);

- Replace “be guided by” with “apply” in Rule 6.5 ter (c).

It is more appropriate to say that the Court shall “apply” the principles contained in Rule 6.5, rather than be guided by them. The principles must be applied at every stage, recognizing that how they apply may differ dependent upon the stage. The “guided by” language does not adequately preclude the admission of evidence of consent even where the criteria of the guiding principles in paragraphs (a) to (d) are met.

Indeed, by using different words, the “guided by” language suggests that admission of the evidence is more likely to be appropriate. It must be emphasized that the damage to the victim is done at the stage of the admission of the evidence and the taking of the testimony. It is the process that humiliates and retraumatizes the victim-witness. Moreover, her fear of this possibility operates as the deterrent to participation itself. Even if the Court later rejects this evidence or testimony as lacking in probative value, this does not reverse the damage done.

Secondly, the phrase which refers to the intention of the accused to introduce evidence of “the words, conduct, silence or lack of resistance of a victim or witness as referred to in paragraphs (a) through (d) of Rule 6.5” does not make sense. This phrase assumes that evidence such as the lack of resistance of a victim is admissible, contrary to the guiding principles in Rule 6.5. The phrase should therefore be deleted.

Privileged Communications and Information (Rule 6.4)

The Rules should provide an absolute privilege for communications made between victims and their doctors, psychiatrists and counsellors, similar to the absolute privilege currently provided for in Rule 6.4 for communications made in the context of a sacred confession. There is no legitimate basis for the preferential treatment of communications made in the context of a sacred confession, which gives discriminatory priority to one religious approach to spiritual healing, contrary to article 21(3).

A privilege for communications between victims and their doctors. counsellors or psychiatrists 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). As the Furundzija trial illustrates, disclosure of therapeutic or counselling 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. Counselling records contain highly personal and sensitive information, usually unrelated to the crime. Their disclosure could create great embarrassment and violate the privacy of the victim if they were revealed to the accused.

Moreover, the records made during counselling are inadequate for the truth-finding process of a trial, since the purpose of a counsellor differs from the purpose of the justice system.

The relationship between counsellor 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 counsellor will not be revealed to the accused, victims will either choose to forego testifying, not obtain counselling or if they go to a counsellor, not be completely open in what they say. The first choice will directly affect the capacity of the Court to hold perpetrators accountable. The second and third choice will impede the healing process.

For these reasons, the loss of confidentiality is a great and unnecessary price to be paid compared to the dubious benefit to the accused of gaining access to such personal information.