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140108 SV Manual Title Page Prosecution of Sexual BestViolence Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-Conict Regions: Lessons Learned from the Oce of the Prosecutor for the International Criminal Tribunal for Rwanda Tribunal Pénal International pour le Rwanda International Criminal Tribunal for Rwanda Any part of this publication may be reproduced without permission for limited distribution provided it is distributed without charge, and the Office of the Prosecutor of the International Criminal Tribunal for Rwanda is acknowledged as its source. The Office of the Prosecutor would appreciate receiving a copy of any materials in which the text is used. Official Release Date: 30 January 2014 TABLE OF CONTENTS FOREWORD ..................................................................................................................................... III I. INTRODUCTION ..................................................................................................................... 1 II. GLOBAL STRATEGY ............................................................................................................. 8 A. INTEGRATION ......................................................................................................................... 11 B. PRACTICE-BASED MANUALS AND ONGOING PROFESSIONAL DEVELOPMENT THROUGH TRAINING PROGRAMS ..................................................................................................................... 12 C. DIVERSITY AND GENDER PARITY ......................................................................................... 17 D. COMPREHENSIVE SYSTEM FOR MANAGING VICTIM AND WITNESS SAFETY AND ENSURING ACCESS TO COUNSELING AND MEDICAL TREATMENT ............................................ 18 (I.) VICTIM AND WITNESS SAFETY ............................................................................................. 18 (II.) COUNSELING AND MEDICAL CARE ................................................................................. 20 E. COUNSELING AND RELATED SERVICES FOR STAFF MEMBERS ........................................ 24 F. COORDINATING UNIT OR WORKING GROUP ....................................................................... 24 III. INVESTIGATION PHASE ............................................................................................. 27 A. IMPLEMENTING AN INTEGRATED APPROACH ..................................................................... 27 B. LINKING HIGHER LEVEL ACCUSED TO THE CRIME ........................................................... 31 C. INITIAL IDENTIFICATION OF WITNESSES ............................................................................ 34 D. INITIAL APPROACH TO WITNESSES ..................................................................................... 35 E. PREPARATION FOR INTERVIEWS .......................................................................................... 38 F. SELECTING THE INTERVIEW LOCATION .............................................................................. 40 G. CONDUCTING THE INTERVIEW ............................................................................................. 41 IV. PRE-TRIAL AND TRIAL PHASE ............................................................................... 47 A. HANDOVER FROM INVESTIGATION TO PROSECUTION TEAM ............................................ 48 B. INITIAL WITNESS MEETING WITH PROSECUTION TEAM .................................................. 49 C. PREPARING SEXUAL VIOLENCE WITNESSES FOR COURT ................................................. 50 D. ALTERNATIVE MEANS TO ORAL TESTIMONY ..................................................................... 58 E. PRESENTING TESTIMONY IN COURT ................................................................................... 60 (I.) ARRANGING FOR THE WITNESS’S TESTIMONY ................................................................... 60 (II.) PRESENTING THE WITNESS’S TESTIMONY ..................................................................... 63 (III.) ALLOWING VICTIMS A ROLE IN SENTENCING................................................................ 69 V. APPEAL AND POST-TRIAL PHASE ............................................................................. 73 A. KEEPING WITNESSES APPRISED OF CASE PROGRESS ....................................................... 74 B. PROVIDING ONGOING SUPPORT TO VICTIMS AND WITNESSES ........................................ 76 VI. CONCLUSION.................................................................................................................... 81 ANNEX A: DEFINED TERMS AND SOURCES ..................................................................... 1 ANNEX B: STATISTICS FROM THE ICTR’S RAPE AND SEXUAL VIOLENCE CASES ................................................................................................................................................... 1 ANNEX C: RAPE AND OTHER FORMS OF SEXUAL VIOLENCE AT THE ICTR – ELEMENTS, MODES OF LIABILITY, AND EVIDENTIARY ISSUES .......................... 1 I. RAPE AND OTHER FORMS OF SEXUAL VIOLENCE............................................. 1 II. RAPE AND OTHER FORMS OF SEXUAL VIOLENCE AS PREDICATE OFFENCES FOR INTERNATIONAL CRIMES ...................................................................... 1 (i) Genocide .............................................................................................................................. 1 (ii) Crimes against Humanity............................................................................................. 2 (iii) War Crimes ...................................................................................................................... 4 III. MODES OF LIABILITY UNDER INTERNATIONAL LAW ................................. 5 (i) Committing ......................................................................................................................... 5 (ii) Ordering ........................................................................................................................... 6 (iii) Instigating ........................................................................................................................ 7 i (iv) Planning ........................................................................................................................... 8 (v) Aiding and Abetting .......................................................................................................... 8 (vi) Superior Responsibility ................................................................................................. 9 (vii) Joint Criminal Enterprise .......................................................................................... 10 IV. RELEVANT EVIDENTIARY ISSUES AND INQUIRIES .................................... 11 ANNEX D: INVESTIGATIVE WORK PLAN ............................................................................ 1 ANNEX E: INTERVIEW CHECKLIST ....................................................................................... 6 ANNEX F: SOURCES AND FURTHER READING ............................................................... 1 ii FOREWORD Over the past 20 years, the Office of the Prosecutor (OTP) for the International Criminal Tribunal for Rwanda (ICTR or Tribunal) has indicted 93 persons who were among those most responsible for the 1994 Genocide in Rwanda. Reflecting the prevalence of rape and other forms of sexual violence as weapons of war in the genocide, more than half of our indictments charged rape and other forms of sexual violence as a means of perpetrating genocide and as crimes against humanity or war crimes. Each case presented unique challenges. Ordinary criminal investigative techniques had to be modified to avoid the loss of crucial evidence. In attempting to present evidence from survivors, all of those involved in the Tribunal’s justice system–prosecutors, judges, defence counsel, and victim- witness advocates–needed to be sensitized to the particular security, emotional, and physical needs of this highly-traumatized population. Protective orders were needed to safeguard survivors from threats and intimidation. Counseling, medical services, and even basic necessities such as food, clothing, and accommodation had to be provided when the survivors came to present their evidence in court. Sentences needed to reflect the true gravity of the crimes and, in so doing, restore a sense of justice for the victims. The Tribunal confronted all of these challenges. It overcame some and fell short on others. In the process, it learnt valuable lessons that will assist future prosecutors and others involved in the criminal justice system to successfully investigate, prosecute, and raise awareness about rape and other crimes of sexual violence at both the international and national levels. This best practices manual captures those lessons and provides practical recommendations to assist and guide future prosecutions. It is the product of tireless effort by my team of dedicated prosecutors, investigators, and victim-witness advocates. It also reflects the valuable contributions made through peer review by 100 experts in the field, who gathered at my invitation in Kigali, Rwanda in 2012 to review preliminary drafts of this manual. No manual can answer all of the complicated questions likely to arise in the prosecution of these cases. It is my hope, however, that this manual will answer some of those questions and initiate an ongoing dialogue about how best to close
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