Guest opinion piece writer Dr. Rosemary Grey, Amnesty’s Legal Adviser Jonathan O’Donohue and International Criminal Justice Clinic student Leonard Krasny reflect on the Trial Chamber’s recent decision to reject requests by victims’ lawyers for three victims to present evidence of sexual violence against boys and men.
In its case against former Lord’s Resistance Army (LRA) commander Dominic Ongwen, the ICC Office of the Prosecutor has taken a significant step towards implementing its policy commitment to pay particular attention to sexual and gender-based crimes. Following Ongwen’s appearance at the Court in 2015, the Prosecutor charged him with multiple sexual and gender-based crimes against women and girls abducted by the LRA, including forced pregnancy and forced marriage, neither of which had been prosecuted at the ICC before.
However, new allegations of sexual violence crimes by the LRA against men and boys, which the Trial Chamber has confirmed will not be admitted into evidence, suggests that, as in previous prosecutions before international criminal tribunals, an opportunity to address other gender-based crimes may have been missed.
That is certainly the view of the victims’ lawyers, who in February sought leave to introduce testimony from three men who were allegedly sexually abused by the LRA during and after the attacks relevant to the case. They argued that the proposed evidence related to several of the charges in the case, including torture.
As their filing noted, sexual violence against males is widely under-reported and stigmatized. They argued that the chance for the victims to lead evidence of sexual violence against men and boys in the Ongwen case was an opportunity to break that silence, and to recognize the full extent of sexual violence and the harms caused as a result.
However, the Trial Chamber was not persuaded by this argument. On 6 March, it declined to admit the proposed evidence of sexual violence against men and boys, stating:
Since the acts described by the anticipated testimony would fall under the category of sexual crimes and such acts are not mentioned in the facts confirmed by the decision on the confirmation of the charges, the Chamber considers them to be beyond the scope of the charges.
The victims’ lawyers then filed another request urging the Chamber to reconsider its decision, warning that excluding the evidence could ‘entren[ch] the misconception that sexual violence against men and boys did not happen’. The Chamber again decided that:
Presenting such evidence was not sufficiently warranted because it would exceed the facts and circumstances of the sexual and gender based crimes in this case.
While this decision will be a disappointment to the victims, the Chamber’s reasoning appears sound at least at first glance. There is no evidence of sexual violence against males in the confirmation of charges decision. Introducing such evidence mid-way through the trial may have undermined Ongwen’s rights to be informed of the charges (including their factual basis), to have adequate time to prepare a defence and to be tried without undue delay.
Yet on closer analysis, the Chamber’s decision and the filings that preceded it raise three important questions.
First, why has there been no evidence of sexual violence against men and boys in the Ongwen case until now?
Did the Office of the Prosecutor take the necessary steps to investigate sexual violence against men and boys in this case, but simply come up short? Or was the issue overlooked at the investigation stage? As the Office has yet to publicly respond or comment on the victims’ lawyers request, the answer is unknown.
What is clear is that social stigma is often a major obstacle to collecting testimony of sexual violence. This is acknowledged in the Office of the Prosecutor’s Policy Paper on Sexual and Gender-Based-Crimes. For male victims in Uganda, perceptions that being raped makes a man feminine and/or gay, in a context of deep-seated homophobia and sexism, means that male rape victims rarely speak out for fear of being ostracized or even prosecuted for homosexual acts.
In Ongwen, the victims’ lawyers highlighted these very issues, noting that it look a long time to build trust with their clients before any men were prepared to speak about sexual violence. Given the widespread stigmatisation of victims of such crimes, it can be expected that this challenge will arise in many other situations.
Therefore, in order to address all gender-based crimes within its mandate and to avoid reinforcing existing patterns of exclusion, the Office of the Prosecutor must allocate significant time and resources to investigating sexual violence against all gender groups. Given that certain crimes will take longer to investigate than others, the Office may also consider adding charges after the confirmation decision if necessary, pursuant to Article 61(9).
Second, did all of the proposed evidence ‘exceed the facts and circumstances of the sexual and gender based crimes in this case’?
As noted above, the Trial Chamber found that all of the proposed evidence of sexual violence against men and boys fell outside the scope of the charges pertaining to sexual and gender-based crimes committed against women and girls in this case. However, although it was not clearly argued, the filings of the victims’ lawyers suggest that part of the proposed testimony related to victims being forced to rape women and girls – acts that may fall squarely within the facts and circumstances of sexual and gender-based crimes in this case.
The Chamber should have sought clarification on this point in order to determine whether this part of the victims’ evidence could have been admitted without undermining the rights of the accused, rather than dismissing the proposed evidence in its entirety.
Third, could such evidence have been relevant to other parts of the case?
Under the Rome Statute, victims do not have a right to lead evidence. However, the Appeals Chamber has confirmed that that the Court can, subject to a number of criteria including ensuring the rights of the accused, admit such evidence pursuant to Article 69(3). This gives the Court power to ‘request the submission of all evidence that it considers necessary for the determination of the truth’.
But this begs the question: the truth of what? Of the facts alleged in support of the charges? Of the impact of the crimes on the victims? Of the context in which the crimes were committed? The answer to this question has serious implications for both the rights of the accused and victims seeking to admit evidence. However, so far, the ICC’s application of Article 69(3) is unclear and inconsistent.
In some cases, trial chambers have used this power to admit victim evidence that is only relevant to the specific charges or which is ‘representative’ of victims as a group (see for example decisions in Lubanga and Bemba). A detailed analysis of each decision is beyond the scope of this piece, but in principle it may be possible to admit victim evidence while respecting the rights of the accused. That is, provided that the criteria established by the Appeals Chamber are applied thoroughly in each instance and the defence is given adequate notice of the evidence at an appropriate stage of the proceedings and adequate time and facilities to challenge it.
However, the application of Article 69(3) has in at least one instance been employed by chambers to call its own witnesses to provide testimony on the background and context to events being prosecuted that went beyond the charges. Vague indications have also been given that the restriction of victim led evidence to the facts and the charges confirmed is not absolute. Indeed, in its latest decision refusing to reconsider the victim lawyers’ request, the Trial Chamber in the Ongwen case, states that:
Evidence that is not squarely part of the facts and circumstances described in the charges could still have been relevant to other parts of the case, such as other confirmed charges or the contextual elements charged.
Unfortunately, this statement only further muddies the waters by implying that evidence of sexual violence against men could assist with determining the truth in this case, but rejecting it nevertheless. The uncertainty of the Trial Chamber’s reasoning is regrettable, especially as victims have no avenue to appeal the decision.
The Ongwen case is not the first case where victims have sought recognition of unseen forms of victimisation in international criminal proceedings, and it will not be the last. Yet once a trial is underway, it becomes increasingly difficult to introduce evidence of such crimes, without prejudicing the fair trial rights of the accused.
To minimise this risk, it is imperative that the Office of the Prosecutor pays close attention to hidden crimes at the investigation stage, and that the Office is given the resources that this task demands. This, first and foremost, is the key to avoiding the risk of rape and other stigmatised crimes being alleged after the charges have been confirmed.
Moreover, to safeguard the rights of the accused and provide victims with greater certainty about their role in ICC proceedings, the Court must clarify the scope of its power to admit evidence under Article 69(3) and apply the provision consistently.