Chapter 11 - Investigation of Crimes of Sexual and Gender-Based Violence Under International Criminal Law

Summary

INTRODUCTION

Crimes of sexual and gender based violence are part and parcel of the pattern of international criminal law violations committed in the context of armed conflict and/or mass scale criminal acts constituting crimes against humanity and/or genocide. Yet it is still the case, regrettably, that this category of violation is often approached with greater reluctance, analysed as if it were a separate category unto itself, and not assumed to be a component of every investigation into international criminal law violations. As a result, crimes of sexual and genderbased violence are under-documented and under-included in cases which are brought under international criminal law.

This article dispels myths which may lead to omission of such crimes from the initial investigation plan, or lead investigators and prosecutors to intentionally or inadvertently turn away from such evidence when it is brought to their attention. It will also seek to provide some concrete methods for accessing this evidence, to encourage international criminal investigators and prosecutors to include sexual and gender based violence as a matter of course in any international criminal investigation.

THE INVESTIGATION PLAN

Every investigation begins with a plan. Ideally, one starts with a clean slate, gathers potential leads, selects from among them, and follows the evidence where it may lead. In reality, due to many factors including most prominently mandate, political, security and resource constraints, there is usually a given starting point. The starting point may be defined by the temporal or geographic jurisdiction of the investigative body, and/or by the management of the investigation. The starting point may be a particular incident, a specific individual, or the leadership of a particular group or groups. It may be a body of information gathered by a particular agency or group which may have been collecting evidence based on techniques which could affect their admissibility in judicial proceedings. As such, it may suggest a certain type of crime or group of alleged perpetrators which may not reflect the reality of events on the ground.

Sexual and gender based violence occurs in all situations of mass violence.