Using pattern evidence to build cases of conflict-related sexualized and gender based violence crimes

Using pattern evidence to build cases of conflict-related sexualized and gender based violence crimes

Potential and limitations of new methodological approaches in collecting and using social science evidence before International Criminal Tribunals

For a long time, conflict-related sexualized and gender based violence (hereinafter ‘SGBV’)
was condoned as a collateral damage and necessary byproduct of armed conflicts. It was only
by the end of the second half of the 20th century that conflict-related SGBV was recognized as
an international crime. But even though international criminal tribunals by now recognize
unanimously the central role SGBV has (had) in many armed conflicts, relatively few cases
have been tried and adjudicated. When analyzing these cases, it becomes clear that mostly direct
perpetrators or those close to the crime scene (low- or mid-level perpetrators) have been held
accountable – but scarcely the military and political leaders that stand at the very top of the
chain of command. If we look at the existing substantive law established by the statutes of
international criminal tribunals regarding SGBV and the increasing jurisprudence on the topic,
it becomes clear that the reasons for the limited number of charges and even less convictions
are not primarily to be found in missing or insufficient substantive laws. Considering the special
attention prosecutors paid to the issue by now, it is also not due to institutional neglect
(anymore). The reasons are rather rooted in problems related to questions of evidence at the
investigation and procedural level – particularly regarding the establishment of a link between
superior and subordinate (linkage evidence) as well as between single acts of SGBV and a
broader campaign of crimes (crime base evidence).

The unsatisfactory results of prosecutions involving cases of SGBV crimes have raised
demands for new evidentiary approaches. Luis Moreno Ocampo, former chief prosecutor of the
International Criminal Court, was one of the first prominent voices calling for a shift away from
traditional evidentiary approaches towards the so called new evidence. This generic term
describes the effort to establish reliable evidence using pattern evidence, statistical analysis and
other social science methodologies. So far, these methods have been used to a very limited
extent in international criminal procedures – and even less in cases concerning conflict-related
SGBV. Some scholars as well as practitioners even demand that prosecutors should be able to
build a case exclusively on the basis of this new type of evidence and thus supersede the
participation of witnesses and victims in criminal procedures. This claim has been highly
contested.

Taking the aforementioned into account, the starting point of this dissertation is the struggle of
international criminal tribunals in establishing evidence as one of the key challenges in
prosecuting SGBV. Accordingly, the overarching question is how the prevailing evidentiary
gaps can be bridged. The work is guided by three principal questions: First, what exactly are
the key obstacles that international criminal tribunals face when establishing evidence in highly
complex cases involving SGBV and which common patterns and structural shortcomings can
be identified in this regard? Second, which new approaches such as Hierarchical Linear
Modeling or cluster surveys can be pinpointed as possible instruments for a sound and gapless
establishment of evidence? And third, which potential but also limitations do these new
methods of evidence entail – especially regarding the reliability of evidence and the rights of
the accused? Following this idea, this work contributes to the international debate that circles
around the difficulties of prosecuting conflict-related SGBV by identifying and analyzing new
evidentiary approaches.