recognised that “rape is such a sensitive matter in Ethiopian and Eritrean culture that victims are
extremely unlikely to come forward, and that evidence is likely to be far less detailed and explicit
than for non-sexual offenses. The Commission, accordingly, does not require evidence of a pattern
of frequent or pervasive rape as the basis for State responsibility”.253
Such an open approach to evidence has been codified in Articles 69.3 and 69.4 of the Rome Statute
of the ICC, which indicates that the ICC will take a liberal approach to the issues of admissibility of
evidence. In the absence or sometimes destruction of documentary evidence of crimes against
humanity, the practice in international courts and tribunals is to rely on evidence of witness
testimony, either oral or sworn statements, and to admit practically any evidence that has
probative value.
The rules of evidence of sexual violence in the ICC are thus more gender friendly than the
evidentiary requirements in some national laws or the practice in States where the rules of
evidence are already gender inclusive. The ICC rules relevant to prosecution of sexual violence
are:
No need for corroboration: Rule 63 expressly prohibits the Court from requiring corroboration
of a victim’s testimony
Consent:
o
Rule 70 (a) - consent cannot be inferred by reason of any words or conduct of a victim
where force, threat of force, coercion or taking advantage of a coercive environment
undermined the victim’s ability to give voluntary and genuine consent.
o
Rule 70(b) - consent cannot be inferred by reason of any words or conduct of a victim
where the victim is incapable of giving genuine consent.
o
Rule 70(c) - consent cannot be inferred by reason of the silence of, or lack of resistance
by a victim to the alleged sexual violence.
Sexual Conduct:
o
Rule 70(d) - credibility, character or predisposition to sexual availability of a victim or
witness cannot be inferred by reason of the sexual nature of the prior or subsequent
conduct of a victim or witness.
o
Rule 71 - Evidence of prior or subsequent sexual conduct of a victim or a witness shall not
be admitted.
7.1.3 Evidence showing Sexual Violence Nexus to ‘attack’
For prosecution of sexual violence as crimes against humanity or war crimes, it is necessary to also
show the nexus of the criminal act or the sexual violence with the overall ‘attack’, or ‘conflict’.
Evidence of Rape as Crimes Against Humanity: In the Katanga case, the ICC Chamber
relied on a combination of witness statements and NGO reports to find that a sufficient
nexus existed between the acts of rape and the widespread ‘attack’ directed against the
civilian population of the Central African Republic. The Chamber noted that that rapes
were committed when civilians resisted the looting of their goods, or that repeated acts of
rape were used as a method to terrorise the population or that rapes occurred in certain
localities. Relying on witness statements and NGO reports,254 the Chamber found that rape
was a common practice following an attack and that those combatants who forced women
to engage in sexual intercourse intended to commit such acts by force or threat of force.
253
Eritrea Ethiopia Claims Commission, set up in the Permanent Court of Arbitration, Partial Award, Civilians Claims,
Ethiopia’s Claim 5 between The Federal Democratic Republic of Ethiopia and The State of Eritrea, The Hague, December 17,
2004, page 19, para 85.
254
The NGO reports relied upon include: AI report, “Central African Republic, Five months of war against women,”
November 2004; ‘Federation Internationale des Ligues des Droits de l’Homme’ (FIDH) report, “Central African Republic,
forgotten, stigmatized – the double suffering of victims of international crimes,” October 2006.
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