57

Prosecuting Sexual Crimes within the Procedural
Framework of the ICC

INOUE, Wakana(Seminar of Professor Philipp Osten 4th Grade)I

Introduction
1 Aim of the Thesis
2 Clarification of Definitions
3 Sexual Crimes that Fall within the Jurisdiction of the ICC

IIIntroduction of Criminal Procedure Models and how they are Applied in the ICC

III Analysis of the Rules of Evidence and Procedure of the ICC
1 Rules Related to Victims and Witnesses
2 Rules Related to Evidence
IV Implementation of the Rules in the Prosecution Procedure of the ICC
V

Exploration of The OTP Policy Paper on Sexual-Gender Based Crimes

VI Conclusion

I Introduction
1 Aim of the Thesis
Historically, mankind has experienced multiple mass atrocities both in times of
war and peace. Overcoming such atrocities by criminalizing and prosecuting themhas become an ultimate goal for mankind especially after World War II, but it took
many years in order to accomplish this task. Therefore, the formation ofInternational Criminal Law after World War II was a breakthrough since it marked
the first step to criminalize individuals responsible of such crimes and other crimesin the context of mass atrocities.1)

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法律学研究60号（2018）

The establishment of the International Criminal Court (henceforth, ICC) under
the Rome Statute was another landmark in order to prosecute the gravest crimes
within its jurisdiction 2) namely, (a)The crime of genocide (b) Crimes against
humanity (c) War crimes (d) The crime of aggression.3) The ICC, which functions
as a permanent international criminal court consists of four main organs, which are
the Presidency, the Chambers, the Office of the Prosecutor (henceforth, OTP) and
the Registry.4) Each organ is responsible to enhance fairness and transparency of
the Court.
Empirically, when mass atrocities are committed in an organized manner, they
are often accompanied by sexual crimes. For example, it is not difficult to recall thecases of Thomas Lubanga, Jean-Pierre Bemba and Germain Katanga that was
brought to the ICC. Lubanga is said to have “made boys into rapist and girls into
sex slaves in order to make them into child soldiers he could command and use at
will.”5) In the two latter cases, Bemba and Katanga were charged with “sending
their forces to rape en masse as retaliation for prior attacks, for resources, or forpolitical power.” 6) Even thought the existence of such sexual crimes may berecognized, specific difficulties arise in a procedural regard when prosecuting
sexual crimes in mass atrocities. Such difficulties may relate to the protection of
victims and dealing with evidence of sexual crimes since both require sensitive andprecise measures during the procedure.
So far, research to some degree has been conducted in substantive law aspectsof sexual crimes.7) However, procedural approaches, which arise when actuallyprosecuting such crimes, have so far not been suf ficiently dealt within legal
scholarship. Therefore, this paper will explore procedural aspects of prosecuting
sexual crimes in the ICC, based on the question “What kind of procedural
framework does the ICC have in order to prosecute sexual crimes?” The thesis will
cover the procedural points that only relate to sexual crimes to specifically explore
the issue evolving this topic. The exploration of this issue is meaningful in the sensethat it will uncover how the rules set in the ICC facilitate the prosecution of sexual
crimes, which is complex and not fully delved into.
In order to precisely assess the sexual crimes that fall under the scope of the
ICC, the definition of the term and the specific crimes stated in the Rome Statute59(henceforth, RS) will be outlined in the beginning. This will be followed by ananalysis of general criminal procedure models and how the procedure model of the
ICC may affect the prosecution of sexual crimes. Then the discussion will move onto the analysis of specific rules on sexual crimes in the Rules of Procedure andEvidence of the ICC (henceforth, RPE) , which will be followed by an examinationof how the rules of the RPE are implemented in the actual cases that have beenprosecuted within the ICC. Finally, the ‘Policy Paper on Sexual Violence andGender-Based crimes’ by the OTP will be introduced to briefly touch upon the
future prospects of change in prosecuting sexual crimes in the ICC.

2 Clarification of Definitions
When discussing this topic, it is significant to first clarify the definition of theterm sexual crimes. The complexity of the crime lies in its disposition since it canbe interpreted and defined in several ways. To avoid confusion, this thesis willdefine the term from what can be derived from the RS and the Elements of Crimes.
Sexual crimes that fall under the jurisdiction of the Court are listed under Articles
7.1(g), 8.2(b)(xxii) and 8.2(e)(vi) of the RS.8) The Elements of Crimes goes further
into detail, by requiring “the perpetrator to have committed an act of a sexual nature
against a person, or to have caused another to engage in such an act, by force, or bythreat of force or coercion, such as that caused by fear of violence, duress,
detention, physical oppression, or abuse of power, or by taking advantage of acoercive environment or a person’s incapacity to give genuine consent” 9) in thecrimes related to rape, enforced prostitution and sexual violence.10) This implies
that both non-physical and physical acts, which harm a person, will count as sexual
crimes.11)
Additionally, it is important to note that there is also gender-based crimes,
which is often confused with sexual crimes.12) As for the definition of gender, Article
7.3 of the RS states, “the term ‘gender’ refers to the two sexes, male and female,within the context of society.”13) Although unfortunately this definition excludes
sexual minorities due to the opinion of conservative countries,14) it is said that thedefinition is well balanced since it acknowledges both aspects of biological sex andsocially constructed roles.15) Deriving this definition, gender-based crime is often

60

法律学研究60号（2018）recognized as a crime committed against persons due to their “socially constructed
gender roles.”16)
The OTP recognizes these as two different crimes, noting that gender-based
crimes refer to attacks committed on women and men that are not always in theform of sexual violence.17) The most significant difference between the two terms isthat gender-based crimes can also contain crimes with non-sexual element whereas
sexual crimes definitely contain sexual element. Though sexual crimes are in mostcases gender-based crimes, in order to avoid confusion, this thesis will mainly use
the term sexual crimes since it aims to look into crimes that involve harm on thesexual nature of a person.18)

3 Sexual Crimes that Fall within the Jurisdiction of the ICC
Sexual crimes that fall within the jurisdiction of the ICC will be explained inadvance of discussing procedural aspects. As stated earlier, sexual crimes are
specifically enumerated in the articles of the RS. The Statute is phenomenal in thesense that it is one of the first international conventions that recognized multiple
types of sexual crimes in its core crimes.19) Article 7.1(g) of the Statute explicitly
mentions that “rape, sexual slaver y, enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of sexual violence of comparable gravity”20)
constitutes crimes against humanity. 21) Ar ticle 8(b)(xxii) also recognizes“committing rape, sexual slavery, enforced prostitution, forced pregnancy…forced
sterilization, or any other form of sexual violence also constituting a grave breach of
the Geneva Conventions”22) as war crimes.23) It is also important to note that rape
was defined as genocide in the Prosecutor v. Jean -Paul Akayesu of the ICTR.24)
Although this was not reflected in the RS of the ICC, this case increased therecognition of interpreting rape as a form of genocide.25)
In light of criminalizing sexual and gender-based crimes, the progression of
the ICC is plausible. The incorporation of several types of sexual crimes within the
Statute enabled the ICC procedural framework to contain rules and supportive
methods related to such crimes, which will be further analyzed in the following
chapter.

61

II ‌Introduction of Criminal Procedure Models and how they are
Applied in the ICC
This chapter will analyze the procedure model of the Court, which constructs
the basis of its procedural framework. The procedure model of the ICC isconsidered to be complex since it is a mixture of two criminal procedure models
namely the adversarial model and the inquisitorial model.26) The former model ismainly adopted within common law countries. In this case, usually the prosecutor
initiates the proceedings and enjoys discretion while the court plays a passiverole.27) On the other hand, the latter is often seen in civil law countries. In this case,discretion of the prosecutor is relatively small and the court is more active inseeking the truth. 28) Although these two models are seen in certain civil law,common law countries, it is said that they have somehow merged through theadaptation of laws and there is no country that purely demonstrates either model.29)
As it can be assumed from the above, the two models share few in common.
Though there are several differences that could be analyzed, this chapter will only
cover what they differ in the role of the victims and rules related to evidence. Thisis because these two points especially relate to the difficulty the Court faces whenprosecuting sexual crimes and is specifically covered in the RPE, which will beanalyzed in the following chapter.
Difference in the role of victims can be seen in their involvement in the processof prosecution. In the adversarial model, the victims will only appear in court as
witnesses, and play a very small role during the procedure.30) On the other hand, in
the inquisitorial model the victims have the right to play an active role in theprocedure as ‘civil petitioners’ where they will be able to have access to the case fileand also call for certain investigations.31)
Rules related to evidence also differ within these two models. In the adversarialmodel, both the prosecution and defense gathers the evidence. They are required
to disclose the evidence to the other party before the hearings. In addition, therules on the admission of evidence tend to be strict and hearsay evidence is often
inadmissible.32) The inquisitorial model is known for its flexibility in the rules ofevidence. An investigating judge will collect the evidence of both parties through62

法律学研究60号（2018）

the questioning of witnesses and documents, which provides more potential to
explore the specifics.33)
Comparing and analyzing these two models is significant when discussing theprocedure model of the ICC. This is because although the adversarial model was
the mainstream in the past international criminal tribunals, the inquisitorial model
has been integrated since the International Criminal Tribunal for the former
Yugoslavia (hencefor th, ICTY) due to the fact that the inconvenience of theadversarial model became apparent. The judges of the ICTY realized that if they
kept following the adversarial model, the court will have no knowledge of the casebefore the opening of the trial and the disclosure of evidence will be late. Thus the
RPE of the ICTY was made more flexible allowing the court to have more control
on evidence and witnesses.34)
Inheriting the progressive aspects of the ICTY, the ICC’s procedure model wasconstructed in a way that is adjustable to different kind of circumstances. The
merge of the adversarial model and the inquisitorial model enhanced the role ofvictims and encouraged the acceleration of ef fectiveness in prosecutions byspeeding up the process.35) The implementation of the active involvement of thevictims especially distinguishes the procedural framework of the ICC from its
predecessors. Victims, which were given small role in the ICTY, are given the
chance to attend the hearings and examine/cross-examine witnesses in the ICC.36)
The ICC is worthy of praise in which is evaluated as it “recognizes victims as
persons and legal subject of their own right”37) and they are given “an independent
voice and role in the proceedings.”38) Additionally, this hybrid model enhances
flexibility in deciding the admissibility of evidence, which can be seen in Rule63 of
the RPE. This rule applies the principle of free admissibility of evidence just likeother international criminal tribunals,39) and it is rare since in some inquisitorialmodel countries, evidence is controlled under strict rules.40)
As explored in the above, the procedure model of the ICC can be explained as
being sui generis.41) The ICC procedure model enables active participation of victims
and free admissibility of evidence. Since the role of victims and evidence isimportant when prosecuting sexual crimes, it is assumable that the uniqueness andflexibility of the ICC’s procedure model is an effective structure that increases the

63potential of prosecuting sexual crimes.

III Analysis of the Rules of Evidence and Procedure of the ICC
Although it is rarely discussed in spotlight, with no doubt it is obvious that the
RPE is the fundamental bedrock of the procedural framework of the Cour t.
Analyzing the RPE is significant when exploring this thesis’s theme since there areseveral rules set in order to carry out fair prosecution of sexual crimes. The rules
related to the prosecution of sexual crimes in the RPE can be categorized into two
divisions; rules related to victims and witnessed on the one hand and rules related
to evidence on the other. These two divisions will be delved into which will clarify
the measures taken in the ICC to conduct an effective, fair prosecution on sexual
crimes.

1 Rules Related to Victims and Witnesses
The role of victims has been brought into spotlight recently and continues tobe an important factor in the prosecution process. Progression of the victimapproach has been seen in the field of international human rights law and theendorsement of the ‘Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power’ contributed to the constr uction of victim’s rights. 42)
Additionally, the promotion of the victim’s access to justice and respect for theirdignity has been implemented in the RPE to elevate the role of victims.
In the past international tribunals, victims were often left in a vulnerable
position due to the fact that the law did not give full recognition to their security andprivacy.43) In order to give full recognition to the ‘right to justice’ of the victims, andalso overcome the criticism that the ad hoc tribunals in the past lacked provisions
to listen to the victim’s voices in its RPE, the RS and the RPE of the ICC
implemented specific rules related to victims and witnesses.44) Such rules apply tothe victims of sexual crimes as well without exception and create a core value for afair prosecution. On the other hand, it is also traumatizing when the victims andwitnesses are asked to recollect their memories in the case of sexual crimes. In
order to give full protection and at the same time seek justice, the ICC has taken

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into account certain measures to create a protective environment for the victims
and witnesses of sexual crimes while they take par t in the trial as active
participants.45)
Victims are defined as “natural persons who have suffered harm as a result of
the commission of any crime within the jurisdiction of the Court”.46) People that fallunder this definition fall under certain protection under Article 68 of the RS andpeople especially affected by sexual violence are taken into account due to theirvulnerability.47) Article 68.1 of the RS states that the “Court shall take appropriate
measures to protect the safety, physical and psychological well-being, dignity andprivacy of victims and witnesses…in particular, but not limited to, where the crime
involves sexual or gender violence….”48) Additionally, although the accused isentitled to public hearing,49) proceedings by in camera and evidence by electronic
device is allowed when protection is necessary for the victims of sexual crimes.50)
The RPE goes into further detail than the RS by specifically enumerating rulesthat the Court must take into account when victims and witnesses of sexual crimes
are involved. Due to the complex disposition of the Court, the RPE specifies the
Court’s responsibility to protect victims and witnesses into two sections. The firstsection is mentioned in Subsection 2 of Chapter 2 “Composition and administrationof the Court” and the second section is mentioned in Section III of Chapter 4“Provisions relating to various stages of the proceedings”. These two sections will
be assessed below by looking into specific rules in each section.
(1) Subsection 2“Victims and Witnesses Unit”
Rule 16 of the RPE mentions the responsibility of the Registrar51) on victims
and witnesses. It explicitly mentions that the Registrar must take “gender-sensitive
measures to facilitate the participation of victims of sexual violence at all stages ofthe proceedings.”52)
In addition, Rule 17 of the RPE requests The Victims and Witnesses Unit totake certain steps in order to arrange the participation of the victims in a protective
manner.53) Setting The Victims and Witnesses Unit within the Registry54) is specified
in Ar ticle43 of the RS, 55) which is aimed to provide protective measures andcounseling for witnesses and victims that will appear before the Court. The Unit

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must “include staff with an expertise in trauma, including trauma related to crimesof sexual violence.”56) Additionally, derived from Article 43, Rule 17 recognizes thevulnerability of the witnesses involved in testimony and encourages the training of
the workers at Court on issues of trauma and sexual violence.57) It also states thatgender-sensitive measures will be taken in the facilitating the testimony of victimsof sexual violence at “all stages of the proceedings.”58)(2) Section III. Victims and Witnesses
Rule 86 of the RPE outlines the general principle of victims and witnesses as
the following; “A Chamber in making any direction or order, and other organs of
the Court in performing their functions under the Statute or the Rules, shall take
into account the needs of all victims and witnesses in accordance with article 68, inparticular, children, elderly persons, persons with disabilities and victims of sexualor gender violence.”59) It is crucial that the rule explicitly recognizes the vulnerabilityof victims and witnesses of sexual crimes and mentions that special assistance will
be provided for them.60)
Rule 87 of the RPE outlines certain protective measures the Court must apply
in order to protect particular vulnerable victims and witnesses.61) It is required toorder protective measures pursuant to Article 68.1and 2 of the RS when certain
requests are made.62) Rule 87.3 explicitly states that when certain requests ofprotective measures are made, a hearing shall be conducted in camera “todetermine whether to order measures to prevent the release to the public or press
and information agencies, of the identity or the location of a victim, a witness orother person at risk on account of testimony given by a witness.”63) Under this rule,
the Court can order measures (a) through (e) of Rule 87.3.64)
In Rule 88.1 of the RPE, the Chamber is given the right to order special
measures in the facilitation of the testimony of victims of sexual violence.65) This isderived from Article 68 of the RS, which states the responsibility of the Court toprotect victims and witnesses in their par ticipation of the proceedings. The
presence of a permitted lawyer, psychologist or a family member during thetestimony of the trial is an example of the special measure that could be taken.66)
There is also deliberation on protecting the privacy of the victim and witness by the

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Chamber, for it must be “vigilant in controlling the manner of questioning a witness
or victim so as to avoid any harassment or intimidation, paying particular attention
to attacks on victims of crimes of sexual violence.”67) Recording of questioning is
also allowed in particular cases, which includes the use of recording to “reduce retraumatization of a victim of sexual or gender-violence.”68)

2 Rules Related to Evidence
Evidence, broadly recognized as “something that tends to prove or disprovethe existence of an alleged fact”69) plays an important role when dealing a case.
Evidence can be categorized into two types, incriminator y or exculpator ydepending on its nature. It would be the former type if the evidence itself will
establish guilt and would be the latter type if the evidence itself will show theinnocence of the accused.70) The ICC has a rather flexible rule on evidence andallows the admission of all relevant and necessary evidence of the case. Especially,rules on evidence of sexual crimes are distinguished from other cases and the RPE
distinguishes it by containing provisions on issues of corroboration, consent andpast behavior.71)
Rule 63.4 of the RPE explicitly mentions that the Court shall not legally require
corroboration especially for crimes of sexual violence.72) Corroborating evidence isa type of evidence which confirms other evidences, especially evidences that are
not yet affirmed to be reliable.73) Given the fact that in some countries, judges haveused the rule of requiring corroboration unfairly, Rule 63 was adopted in order toavoid stereotypical judgment and give voice to the vulnerable victims.74) This rule isthe expressive proof of the Court taking serious account on these crimes.
Moreover, Rule 70(a) through (d) of the RPE recognizes the issue of consent,
which is often a controversial point in sexual and gender-based crimes. Under thisrule, consent cannot be inferred in the following circumstances. Firstly, in situations
where the victim’s ability to give genuine consent is undermined due to threat offorce and other coercion. Secondly the conduct or remark of the victim when thevictim cannot give genuine consents cannot be presupposed as consent. Thirdly, it
should not be assumed that the victim had consent due to the lack of resistance andsilence to the alleged sexual violence. It is also important to note that under Rule

67

70, it is prohibited to assume the sexual availability of the victim from the sexual
nature of the conduct of the person before or after the crime. 75) Additionally,
evidence related to the sexual conduct of the victim or witness whether prior orsubsequent does not fall under/within the sphere of the jurisdiction of the ICC.
Consecutive to the above rules is the rule on the in camera proceeding, whichis encouraged in Article 68 of the RS. As part of the protection of the victims andwitnesses of sexual crimes, the Cour t allows in camera proceedings and thesubmission of evidence by the use of electronic devices.76) Rule72.1 of the RPE
guides the method of the in camera proceeding especially when the Court intends
to introduce evidence on the consent of the victim.77) The rule states that “Where
there is intention to introduce or elicit, including by means of the questioning of a
victim or witness, evidence that the victim consented to an alleged crime of sexual
violence, or evidence of the words, conduct, silence or lack of resistance of a victim
or witness referred to in principles (a) through (d) of rule 70, notification shall be
provided to the Court which shall describe the substance of the evidence intended
to be introduced or elicited and the relevance of the evidence to the issues in thecase.”78) The Chamber is required to hear in camera the views of the Prosecutor, thedefence, the witnesses and the victims before deciding whether the evidence
referred to in Rule 72.1 is “relevant or admissible.” 79) This kind of par ticular
procedure will avoid criticizing and re-traumatizing the victim when inquiring about
the consent.80)

IV Implementation of the Rules in the Prosecution Procedure of the
ICC
As it has been discussed in the previous chapter, the Court has several rules inorder to protect victims of sexual crimes in the procedure. To clarify whether therules concerning cases on sexual crimes are implemented, this chapter will present
examples by delving into a certain case that involved sexual crimes. Specifying how
the rules are implemented in the actual case will not just reveal how the rules
function but also help assess the effectiveness of the rules.
The case of Prosecutor vs Bemba was symbolic since Jean-Pierre Bemba was
accused of murder, rape and pillaging and was convicted for such crimes for the

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first time in the history of the ICC.81) In this case, several measures were requested
in order to protect the victims and witnesses at trial. The measures requested weresuch as use of witness numbers and pseudonyms, “limited closed sessions…
wherein information that would identify victims of rape, sexual violence, or related
crimes”82) and allowing some victims to accompany “a psychologist, a trustworthy
person, or family member at trial”83) which falls under the scope of Rule88.84) It wasalso explicitly mentioned, “the fact that a witness is a victim of sexual violence is a
specific factor to be taken into account when considering protective or special
measures pursuant to Rules 87 and 88 of the Rules.”85) In this case, special measures
were sought for 10 victims of sexual crimes, due to some of them fearing the stigma
after being revealed of their identity.86) It is important to note that it was consideredthat the measures “will enable the witnesses to provide full accounts of the eventsat issue with minimal re-traumatization, to protect their privacy and the privacy offamily members, and to avoid the stigma that is associated with rape and/or HIV
infection.”87)

V ‌Exploration of the OTP Policy Paper on Sexual-Gender Based
CrimesAs one of the main organs of the ICC, the OTP88) is especially responsible for
examining the information on the crimes and conducting the investigations, which
influence the procedural framework of the Court.89) Although the Court has taken
steps to a fair trial on sexual and gender-based crimes since its establishment, theOTP reaffirmed the necessity of a more effective investigation and strategy to deal
with the issue on a higher level. After the elevation of this issue as one of its key
strategic goals in the Office’s Strategic Plan 2012-2015, the OTP has increased
concentration on formulating strategies that stand on a gender perspective, which
resulted in the adaptation of the ‘Policy Paper on Sexual and Gender-Based Crimes’
in 2014.90) Without legal binding, this strategy paper provides a futuristic image of
the OTP’s perspective towards dealing sexual crimes.91) The adoption of the policy
itself is phenomenal in the sense that it has evidently confirmed the direction of the
Office to implement a gender perspective92) in all stages of its work. This section
will analyze the certain strategies set by the Office and assess its influence on the

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prosecution of sexual crimes.
As mentioned in Chapter III, the Court has several rules in order to deal withevidence and victims and witnesses on a protective measure. In spite of the Court
having several rules, it has struggled to fully cover sexual crimes in its proceedings.
An example of this dif ficulty was seen in the case of Prosecutor vs Lubanga.
Originally the suspect Thomas Lubanga was indicted as committing the crime of
conscripting and enlisting children under the age of 15.93) In addition, it was also
argued that he should be indicted also for rape and other sexual crimes, since many
witnesses made it evident of the existence of rape and the state that some girls wereforced to work as the wives of the commanders during the testimonies.94) However,Confirmation of Charges against Lubanga included no such sexual crimes in theend. Considering this point, the TCI of Lubanga Case set out as follows:“Although the former Prosecutor was entitled to introduce evidence on thisissue during the sentencing hearing, he failed to take this step or to refer to any
relevant evidence that had been given during the trial. As a result, in the view of the
Majority, the link between Mr Lubanga and sexual violence, in the context of thecharges, has not been established beyond reasonable doubt. Therefore, this factor
cannot properly form part of the assessment of his culpability for the purposes ofsentence.”95)
Prosecutor Ocampo, who was the Prosecutor of the ICC96) at that time, wascriticized for the fact that he failed to mention the evidence of sexual crimes during
the sentence hearing though a good amount of evidence was collected to provesexual violence.
Prosecutor Bensouda, who took office after Prosecutor Ocampo under thesecircumstances, was determined to take leadership in the prosecution of sexual
crimes that eventually led to the adoption of the policy paper.97) The context of thepolicy paper is quite simple since it explains certain strategies the Office will focus
on by clarifying their consideration on the gender inequalities and the sexual
crimes that occur. Starting with an outline of the Court’s general policy, the paper
covers certain measures the Office will take into consideration during preliminary
examinations, investigations, and prosecution. It presents an in depth overview ofthe specific rules and articles of the RPE and the RS the Office will implement in

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each procedure when cases involve sexual crime. Additionally, the OTP goes into
further detail and proposes that the Office will consult with experts and propose
their testimony. From socio-political to medical, the Office will endeavor to propose
experts’ testimony on various aspects since it is expected to be helpful in order to
identify sexual crimes.98) The policy paper also explicitly mentions the role of civilsociety and how it could contribute to the function of the Court from several
perspectives. They can support the Court on legal and medical issues related tosexual crimes and enhance advocating the recognition of the issue itself.99)
The policy paper is innovative since it officially emphasizes what the ICC lacks
within the prosecution of sexual crimes and the submission of the paper itself isphenomenal. Not only will the paper guide the course of direction the Court must
follow in implementing its procedural rules into actual cases, but also give a clear
message that the Court will lean into the issue of sexual crimes even more.

VI Conclusion
Overcoming mass atrocities and creating justice to maintain peace has been
one of the most difficult issues assigned to mankind. Though it is still in the stageof advancement, the world has continued seeking justice since the Nuremberg
Tribunal in order to create a more effective procedural framework in prosecuting
the gravest crimes. Established with high hopes in creating a fairer procedural
framework, the ICC has dealt with several crimes within its jurisdiction so far andhas shown its advancement step by step.
Under the question of “What kind of procedural framework does the ICC havein order to prosecute sexual crimes?” this thesis aimed to present an overview of
the r ules within the ICC to prosecute sexual crimes. Star ting of f with theclarification of the definition of sexual crimes and gender-based crimes, sexual
crimes that fall within the jurisdiction of the Court were explained. This wasfollowed by an analysis of criminal procedure models and how the procedure modelof the ICC affects the prosecution of sexual crimes. The discussion then moved on
to the analysis of specific rules on sexual crimes in the RPE, which demonstrated
that the ICC is aimed at an effective prosecution of sexual crimes and at the same

71

time providing suf ficient protection to the victims of such crimes. A brief
examination of the cases that involved sexual crimes was given in order to see how
the rules are implemented within the actual trials. In the final discussion, the ‘Policy
Paper on Sexual Violence and Gender-Based Crimes’ by the OTP was introduced inorder to assess the future strategy that will be taken so that sexual crimes will belooked into more effectively.
In the course of this study, it was possible to reveal the existence of certain
measures taken in the prosecution of sexual crimes and also heighten hopes in how
the ICC may further develop. At the same time, several scholarly works referenced
in this thesis revealed the difficulty to define what kind of rules and procedural
framework will enhance the prosecution of such crimes. The complexity of the
ICC’s procedural framework and changing strategies by each Prosecutor seems tohinder the quest to create a clear guideline focused on sexual crimes. Although the
OTP Policy Paper envisions the ICC to develop into a court that will overcome thedifficulties within the prosecution of such crimes, the strategy lacks legal binding,which makes it difficult to be fulfilled.
In spite of these obstacles, some methods will be proposed in order to pave theway to construct a more effective procedural framework for the prosecution ofsexual crimes in the ICC. Firstly more research should be carried out on how muchthe rules related to sexual crimes in the RPE are implemented in the actual cases.
Exploring the past cases that involved sexual crimes and looking into the process ofeach step taken could complement this. Secondly, consideration on otherpossibilities on rules of the RPE should be made. This could be conducted byanalyzing what methods countries take when they prosecute sexual crimes at anational level. Effective measures for the prosecution of sexual crimes can beextracted through the analysis, which could be applied to the ICC in the future.
Advancing the procedural framework for sexual crimes at the ICC may be
accompanied by many difficulties. However, by approaching this issue from various
perspectives and proposing diverse solutions will enable the continuation of thisprogression.

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1)

法律学研究60号（2018）

A Cassesse, International Criminal Law 2nd edn(Oxford: Oxford University Press
2008) 4.

2)

R Cr yer, H Friman, Darr yl Robinson and E Wilmshurst, An Introduction tondInternational Criminal Law and Procedure 2 edn (Cambridge: Cambridge University

Press 2010) 150, 151.
3)

Ibid.

4)

W Schabas, An Introduction to the International Criminal Court 4th edn(Cambridge:
Cambridge University Press 2011) 399.

5)C MacKinnon, ‘Creating International Law: Gender As Leading Edge’ Harvard
Journal of Law & Gender Volume36 111.

6)
7)

Ibid.
Stephanie Coop has conducted significant research so far in Japan on sexual andgender-based violence within International Criminal Law. See ステファニー・クー
プ「国際刑事法におけるジェンダー暴力」日本評論社 (2012) for further reference.

8)

Art 7.1(g), 8.2(b)(xxii) and 8.2 (e)(vi) Rome Statute are outlined below;･Art7.1(g) “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity.”･Art8.2(b)(xxii) “Committing rape, sexual slaver y, enforced prostitution, forced
pregnancy, as defined in article7, paragraph 2(f), enforced sterilization, or any otherfor m of sexual violence also constituting a grave breach of the Geneva
Conventions.”･Art8.2(e)(vi) “Committing rape, sexual slaver y, enforced prostitution, forced
pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and anyother form of sexual violence also constituting a serious violation of article 3
common to the four Geneva Conventions. ”

9)

See ICC OTP, Policy Paper on Sexual and Gender-Based Crimes (June 2014) 3.

10)

Ibid.

11)

Ibid.

12)

Ibid.

13)

See Art 7.3 Rome Statute.

14)

O Trif fter and K Ambos, Rome Statute of the International Criminal Court A
rdCommentary 3 edn (Munchen: Verlag C.H Beck 2016) 293.

15)

Ibid.

16)

See ICC OTP, Policy Paper on Sexual and Gender-Based Crimes (June 2014) 3.

17)

Ibid.

18)

Ibid.

19)

For an example, the recognition of rape as a form of crimes against humanity wasleft out in the Nuremberg Charter. For further remarks, see Schabas W Schabas,th
An Introduction to the International Criminal Court 4 edn (Cambridge: Cambridge

73

University Press 2011) 115.
20)

See Art 7(g) Rome Statute.

21)

See Art 7 Crimes against Humanity Rome Statute.

22)

See Art 8(b)(xxii) Rome Statute.

23) See Art 8 War Crimes Rome Statute. Art 8(e)(vi) is not mentioned in the above
since it applies to armed conflicts not of an international character.
24)

C MacKinnon, ‘The ICTR’s legacy on sexual violence’ (2008) New England Journalof International and Comparative Law Volume14 212-213.

25)

O Trif fter and K Ambos, Rome Statute of the International Criminal Court A
rdCommentary 3 edn (Munchen: Verlag C.H. Beck 2016) 208.

26)

A Cassesse, International Criminal Law 2nd edn(Oxford: Oxford University Press
2008) 353.

27)

Ibid., 355-362

28)

Ibid.

29) A Cassesse, International Criminal Law 2nd edn(Oxford: Oxford University Press
2008) 353.
30)

Ibid., 361. Further reference can be seen in R Cryer, H Friman, D Robinson and E
Wilmshurst, An Introduction to International Criminal Law and Procedure 2nd edn(Cambridge: Cambridge University Press 2010) 478.

31) A Cassesse, International Criminal Law 2nd edn (Oxford: Oxford University Press
2008) 361.
32)

Ibid., 356-357, 363.

33)

Ibid.

34)

Ibid., 369, 367, 369, 373.

35)

Ibid., 369, 371, 376. For example, Cassesse hints that the demand to speed up theprocedure was one reason why the inquisitorial model was incorporated.

36) A Cassesse, International Criminal Law 2nd edn (Oxford: Oxford University Press
2008) 374.
R Cr yer, H Friman, Darr yl Robinson and E Wilmshurst, An Introduction to
International Criminal Law and Procedure 2ndedn (Cambridge: Cambridge

University Press 2010) 439.
37)

K Ambos, Treatise on International Criminal Law Volume III: International Criminalst

Procedure 1 edn (Oxford: Oxford University Press 2016) 169.
38)

Ibid.

39)

See Rule63 General provisions relating to evidence.

40)

K Ambos, Treatise on International Criminal Law Volume III: International Criminalst

Procedure 1 edn (Oxford: Oxford University Press 2016) 447, 448.
41) K Ambos, ‘International criminal procedure: “adversarial”, “inquisitorial” ormixed?’ International Criminal Law Review Volume3 35.

74

42)

法律学研究60号（2018）

R Cr yer, H Friman, Darr yl Robinson and E Wilmshurst, An Introduction tondInternational Criminal Law and Procedure 2 edn (Cambridge: Cambridge University

Press 2010) 479.
43)

K Ambos, Treatise on International Criminal Law Volume III: International Criminalst

Procedure 1 edn (Oxford: Oxford University Press 2016) 167,168.
44)

Ibid., 169.

45)

Ibid., 169.

46)

R Cr yer, H Friman, Darr yl Robinson and E Wilmshurst, An Introduction tondInternational Criminal Law and Procedure 2 edn (Cambridge: Cambridge University

Press 2010) 481.
47)

See Rule 86 Rules of Procedure and Evidence.

48)

See Art 68.1 Rome Statute.

49)

See Art 67.1 Rome Statute.

50)

See Art 68.2 Rome Statute.

51)

Art 43.2 states, “The Registry shall be headed by the Registrar, who shall be theprincipal administrative officer of the Court.”

52)

See Rule 16.1(d) Rules of Evidence and Procedure.

53)

See Rule 17.2 (a)(i) Rules of Evidence and Procedure.

54)

Art 43.1 Clarifies the role of the Registry as the following; “The Registry shall be
responsible for the non-judicial aspects of the administration and servicing of the
Court.”

55)

See Art 43.6 Rome Statute.

56)

See Art 43.6 Rome Statute.

57)

See Art17.2 Rules of Evidence and Procedure.

58)

See Rule 17.2(b)(iii) Rules of Evidence and Procedure.

59)

See Rule 86 Rules of Evidence and Procedure.

60)

For further reference, see Online Commentary www.casematrixnetwork.org/cmnknowledge-hub/icc-commentary-clicc/rules-of-procedure-and-evidence/#c1386.

61)

See Rule 87 of Rules of Procedure and Evidence.

62)

See Rule 87.1 Rules of Procedure and Evidence

63)

See Rule 87.3 Rules of Procedure and Evidence.

64)

The measures (a) through (e) will be listed in the following; (a) That the name ofthe victim, witness or other person at risk on account of testimony given by awitness or any information which could lead to his or her identification, be
expunged from the public records of the Chamber (b) That the Prosecutor, thedefence or any other participant in the proceedings be prohibited from disclosing
such information to a third party (c) That testimony be presented by electronic orother special means, including the use of technical means enabling the alteration of
pictures or voice, the use of audio-visual technology, in particular videoconferencing

75

and closed-circuit television, and the exclusive use of the sound media (d) That
pseudonym be used for a victim, a witness or other person at risk on account of
testimony given by a witness (e) That a Chamber conducts part of its proceedings
in camera.
65)

See Rule 88.1 Rules of Procedure and Evidence.

66) D Lupig, ‘Investigation and Prosecution of Sexual and Gender-Based Crimes before
the International Criminal Court’ Journal of Gender, Social Policy and Law 483.
67)

See Rule 88.5 of Rules of Procedure and Evidence.

68) D Lupig, ‘Investigation and Prosecution of Sexual and Gender-Based Crimes before
the International Criminal Court’ Journal of Gender, Social Policy and Law 482.
69)

K Ambos, Treatise on International Criminal Law Volume III: International Criminalst
Procedure 1 edn (Oxford: Oxford University Press 2016) 446.

70)

Ibid., 447.

71)

See ICC OTP, Policy Paper on Sexual and Gender-Based Crimes (June 2014) 36.

72)

See Rule 63.4 Rules of Evidence and Procedure.

73)

K Ambos, Treatise on International Criminal Law Volume III: International Criminalst

Procedure 1 edn (Oxford: Oxford University Press 2016) 474.
74) See Online Commentar y Rule 70. https://www.casematrixnetwork.org/cmnknowledge-hub/icc-commentary-clicc/rules-of-procedure-and-evidence/#c1386
75)

See Rule 70 Rules of Procedure and Evidence. For further reference, see Online
Commentary Rule 70. https://www.casematrixnetwork.org/cmn-knowledge-hub/
icc-commentary-clicc/rules-of-procedure-and-evidence/#c1386

76)

See Article 68.2 Rome Statute.

77)

See Rule 72.1 Rules of Evidence and Procedure.

78)

Ibid.

79)

See Rule 72.2 Rules of Evidence and Procedure.

80) See Online Commentar y Rule 72. https://www.casematrixnetwork.org/cmnknowledge-hub/icc-commentary-clicc/rules-of-procedure-and-evidence/#c1386
81)

See Bemba conviction a step forward for ICC and Africa – BBC News http://www.
bbc.com/news/world-africa-36585195 for reference.

82) Corrigendum to “Prosecution’s request for Protective and Special Measures for
Prosecution Witnesses at Trial”, Bemba, Situation in the Central African Republic,
ICC-01/05-01/08, TCIII, ICC, 6 July 2010, 3.
83)

Ibid.

84)

See Rule 88 Rules of Evidence and Procedure.

85) Corrigendum to “Prosecution’s request for Protective and Special Measures for
Prosecution Witnesses at Trial”, Bemba, Situation in the Central African Republic,
ICC-01/05-01/08, TCIII, ICC, 6 July 2010, 5.
86)

Ibid., 6, 9.

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87)
88)

法律学研究60号（2018）

Ibid., 6.
Art 42.1 of the Rome Statute clarifies the role of the OTP as the following; “The
Office of the Prosecutor shall act independently as a separate organ of the Court. It
shall be responsible for receiving referrals and any substantiated information on
crimes within the jurisdiction of the Court, for examining them and for conducting
investigations and prosecutions before the Court.”

89)

W Schabas, An Introduction to the International Criminal Court 4th edn (Cambridge:
Cambridge University Press 2011) 377.

90)

N Hayes, ‘Investigating and Prosecuting Sexual Violence at the ICC’ in C Stahn(ed.), The Law and Practice of the International Criminal Court (Oxford: Oxford
University Press 2015) 827-829.

91)

See ICC OTP, Policy Paper on Sexual and Gender-Based Crimes (June 2014) 10,
11.

92)

For further explanation on the term ‘gender perspective’, see ICC OTP, Policy
Paper on Sexual and Gender-Based Crimes (June 2014) 3.

93)

Decision on Sentence pursuant to Article 76 of the Statute Lubanga, Situation in the
Democratic Republic of the Congo, ICC-01/04-01/06, TCI, ICC, 10 July 2012, 4.

94)

Ibid., 47 and other pages. For further reference, other pages that include reference
on rape should be looked into.

95)

Decision on Sentence pursuant to Article 76 of the Statute, Lubanga, Situation in
the Democratic Republic of the Congo, ICC-01/04-01/06, TCI, ICC, 10 July 2012, 28.

96)

Art 42.2 states, “The Office shall be headed by the Prosecutor.”97) N Hayes, ‘Investigating and Prosecuting Sexual Violence at the ICC’ in C Stahn(ed.), The Law and Practice of the International Criminal Court (Oxford: Oxford
University Press 2015) 826, 827.
98)

See ICC OTP, Policy Paper on Sexual and Gender-Based Crimes (June 2014) 37. It
is interesting to note that in the Bemba Case, Professor Andrea Tabo and Dr.
Elisabeth Schauer were called as expert witnesses on the relevant pattern of sexual
violence dealt in the case.

99)

See ICC OTP, Policy Paper on Sexual and Gender-Based Crimes (June 2014) 40.