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2010 | J.Hagan, R. Brooks and T. Haugh - Reasonable Grounds Evidence Involving Sexual violence in Darfur

Until almost the end of the 20th century the problem of sexual violence during the international and national armed conflicts remained largely unaddressed by the world community. With the establishment of the ICTY and ICTR the situation radically changed. The charters of the Tribunals and the subsequently created International Criminal Court provide for prosecution for rape and other types of sexual violence. However, the non-reporting by victims, of sexual violence crimes committed against them, poses a major obstacle to these institutions in trying to bring the perpetrators to justice. The quantitative and qualitative standard of evidence needed to establish 'reasonable grounds to believe' that a person has committed a sexual crime, may fail to be met, where victims are too afraid, too ashamed or too traumatized to come forward with their account. (Seet the reports by the Norwegian Peacebuilding Council and REDRESS under Reports in this section for a description of the legislative provisions that give women in Darfur good reason to fear coming forward with charges of rape to the local authorities).

The authors of this article insist that, in order to combat impunity, reference should be made to evidence provided by social science research in international criminal proceedings. The importance of this type of evidence is demonstrated by the example of the prosecution of President Al-Bashir and other Sudanese political and military leaders for sexual crimes committed in Darfur. Social science provides methods and measures that can be uniquely useful for developing reasonable grounds evidence, for example, by demonstrating the roles of physical perpetrators ‘acting together in horizontal relationships’, as well as by establishing the ‘indirect participation through vertical relationships of higher-level defendants, in a chain of command of superior responsibility’. Support for this position has been expressed by Luis Moreno Ocampo (first prosecutor at the ICC) and Judge Niva Pillay (former UN High Commissioner for Human Rights), who insisted that “a good prosecutor should be able to argue a case without individual testimony by establishing the planning, the modus, and the effects of the crime”.