The Means of Proof of International Sex Crimes
Understanding and Proving International Sex Crimes, Morten Bergsmo, Alf Butenschon and Elizabeth J. Wood, eds., FICHL Publication Series, no. 12, pp. 225-265, 2012
41 Pages Posted: 18 Nov 2012 Last revised: 20 Nov 2012
Date Written: May 30, 2011
This paper is about proving international sex crimes (in particular, rape, forced marriage and sexual slavery) provided in the statutes of international criminal courts such as the International Criminal Court, International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda and the Special Court of Sierra Leone. On the basis of a careful review of the relevant case law of those international courts, this paper sets out the means of proof (specific facts) discussed, analyzed and accepted as fulfilling each element of international sex crimes. The term ‘means of proof’ indicates evidence in respect of which a positive evaluation has been completed by adjudicators — ‘positive’ in the sense of substantively supporting the establishment of an element of a crime. For instance, as to the contextual element of crimes against humanity, the element of the ‘widespread or systematic attack’ can be proved by the means of proof of the ‘scale of the attack,’ the ‘pattern of the attack’ and the ‘organized nature of the attack.’ This paper is composed of four main sections: (i) Rape; (ii) Forced Marriage as Other Inhumane Act; (iii) Sexual Slavery in the Jurisprudence of the Special Court of Sierra Leone; and (iv) Enslavement Based on Rape in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia. For the purpose of this paper, means of proof of material elements (as opposed to the mental elements) are the main object of research.
Keywords: Proof, Evidence, Rape, Forced Marriage, Sexual Slavery, Enslavement, International Criminal Court, International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda, Special Court of Sierra Leone
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