Encouraging First Responders to Collaborate with the International Criminal Court and Improving their Capacity to Obtain Information So That It May Be Used for Investigations or in Judicial Proceedings Involving Sexual and Gender Based Crimes

Susana SaCouto


URL: https://iccforum.com/sgbvThe International Criminal Court (ICC) is a court of global jurisdiction. Without unlimited resources, the Court cannot be present in every place where crimes within its jurisdiction may be committed. The Office of the Prosecutor (OTP) must, therefore, regularly rely on organizations on the ground that have access to witnesses, contacts, and other information that may be crucial to its investigations and/or prosecutions. The OTP’s reliance on these organizations is particularly pronounced in the context of situations or cases involving sexual and gender-based crimes (SGBC), as these crimes are often under-reported in situations of conflict or mass violence, making evidence collection of such crimes particularly challenging for the Court. As the United Nations (UN) Secretary General reported to the UN Security Council last year:Sexual violence during and in the wake of conflict continues to be dramatically underreported because of the risks, threats and trauma faced by those who come forward…. Despite the political momentum and visibility gained in recent years, the reality on the ground is that many Governments have not been able to create an environment in which survivors feel safe to report sexual violence. The fear of stigmatization and reprisals is almost universal, and often compounded by a sense of futility stemming from the limited services available and the painfully slow pace of justice.… In situations of live conflict, such as the Central African Republic, Iraq, Somalia, South Sudan, the Sudan and the Syrian Arab Republic, service provision is further impeded by access restrictions and a climate of fear.2In light of these challenges, organizations already on the ground, such as first responders, are often better suited than the OTP to identify and gather timely and relevant information about SGBC. These organizations can include both international and local actors, such as international forces, non-governmental organizations (NGOs), humanitarian organizations, human rights organizations, and the media, among others. However, these organizations have different mandates and serve different functions than a prosecutor. None operate under the same standards of proof as a criminal court, and none aim to convince judges of the guilt of particular suspects. Rather, their mandates vary, from providing security, humanitarian or other assistance, to advocating for political, military or other action, to informing the public of the situation on the ground, to promoting human rights more generally. Thus, some of these organizations view the collection of information for purposes of potential future prosecution either as beyond their mandate or as a potential threat to their efforts, independence or security. Not surprisingly, few organizations are trained in evidence collection techniques that would allow information to be used in criminal proceedings. Nevertheless, there are ways in which first responders and the OTP can work together to enhance the investigation and prosecution of SGBC before the ICC. In this brief note, I will reflect on two principal issues: I. how to encourage organizations to collaborate with the OTP and II. how to help first responders obtain reliable and high-quality information or evidence in a way that might be used for investigations or in judicial proceedings involving SGBC.