13 February 2018 In search of a Remedy: Documentation and Investigation of Sexual Violence in Conflict A Case Study of Myanmar’s Rohingya

Context Image source: Amnesty International

Modes of Legal Accountability Domestic Legal System International Criminal Court Ad Hoc or Hybrid Tribunals International Human Rights Instruments Universal Jurisdiction

Non-Legal International Responses Economic sanctions Military Intervention // R2P Diplomatic Measures Humanitarian Response // Aid Budgeting

Transitional Justice Truth and Reconciliation Commission Memorialization Projects Documentation Centres Others? http://www.d.dccam.org/Documentation_Center_of_Cambodia.htm

Who Documents? Investigators from the ICC OTP UN Special Units Domestic police and investigators First responders - domestic and international human rights and humanitarian organizations

Guidelines on Documentation International Protocol on the Documentation and Investigation of Sexual Violence in Conflict (2014) Office of the Prosecutor of the ICTR, Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-Conflict Regions (2014) Human Rights Centre, First Responders: An International Workshop on Collecting and Analyzing Evidence of International Crimes (2014) Maria Nystedt et al., A Handbook on Assisting Criminal Investigations (2011) WHO Ethical and Safety Recommendations for Researching, Documenting, and Monitoring Sexual Violence in Emergencies (2007)

Basic Principles from the Guidelines Do no harm Risk and safety assessment Investigative plan Carefully selected and well-briefed interpreters Informed consent Caution with physical evidence Take good notes * This is a non-exhaustive list. Please refer to the guidelines directly for further information.

Sexual Violence under International Law Rome Statute Art 8.2(b)*/ 8.2(c)-(e)** War crimes Art 7 Crimes against humanity - when committed as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack. Each of these may include committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or other forms of sexual violence. Other crimes, such of torture, may also include sexual violence. *Relating to international armed conflicts/ **relating to internal armed conflicts

Sexual Violence under International Law Art 6 Genocide Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group: Killing members of the group. Causing serious bodily or mental harm to members of the group. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. Imposing measures intended to prevent births within the group. Forcibly transferring children of the group to another group.

Evidence required under ICL Specific elements: satisfied by information that shows what particular act was committed;* Contextual elements: satisfied by information that describes the circumstances in which the particular act was committed and elevates the act to the level of a war crime, crime against humanity, or act of genocide; Linkage elements: satisfied by information that describes the manner in which one or more alleged perpetrator(s) committed this act as an individual crime. *See: International Criminal Court’s Elements of Crimes