Gender Report Card on the International Criminal ... - YWCA Canada

OTP Investigation and Prosecution Strategy
only publicly available applications for which
the majority of crimes charged related to acts of
sexual and gender-based violence. The highest
number of gender-based charges included in an
arrest warrant against any one individual was
against Mbarushimana 454 and Kushayb 455 (both 8
charges), followed by Harun. 456 Although, at the
time of writing this <strong>Report</strong>, no decision on the
confirmation of charges has been issued in the
Mbarushimana case, the Arrest Warrant against
Mbarushimana contains the broadest range of
gender-based crimes sought to date, reflecting
a new effort by the Office of the Prosecutor to
make greater use of the full range of sexual
and gender-based crimes included in the Rome
Statute. 457
Women’s Initiatives’ analysis of charges for
gender-based crimes at the ICC shows that these
charges are the most vulnerable category of
crimes, in that they tend to be either omitted
from filings or fail to reach the trial phase of
the proceedings. This vulnerability is based on
a number of factors involving both the Office
of the Prosecutor and the Pre-Trial Chambers,
including failures at the investigation phase,
insufficient evidence, incorrect characterisation
of facts or restrictive interpretations of the
definition of some gender-based crimes. In
some instances, gender-based crimes have not
always been fully investigated by the Office of
the Prosecutor, or have not been included by the
Prosecutor in his request for an arrest warrant
or summons to appear, even in situations where
454 Mbarushimana is currently in custody of the Court and
awaiting the confirmation of charges decision.
455 Kushayb is currently still at large.
456 Harun is currently still at large.
457 Mbarushimana is charged with the following genderbased
crimes: torture as a crime against humanity
(based on rape and mutilation); torture as a war crime;
rape as a crime against humanity (based on rape and
mutilation); rape as a war crime; other inhumane acts
(based on rape and mutilation of women) as a crime
against humanity; inhuman treatment (based on rape
and mutilation of women) as a war crime; mutilation
as a war crime; and persecution (based on gender) as a
crime against humanity.
such information was provided to the Prosecutor
by NGOs including the Women’s Initiatives. 458
Charges for gender-based crimes have also not
been included or have been minimally included
in Situations in which the Prosecutor’s request
to open an investigation contains significant
amounts of information showing that such
crimes were committed. For example, in the DRC
and Kenya Situations, the Prosecutor’s requests
to open an investigation contained many
references to reports of gender-based crimes
having been committed; however, for the first
two suspects sought in the DRC Situation 459 the
Prosecution failed to include such charges, and
in one of the two Kenya cases 460 the Prosecution
failed to have the full range of such charges
included in the Summonses to Appear, as
discussed below.
458 On 16 August 2006, the Women’s Initiatives submitted
a confidential report and a letter to the Office of the
Prosecutor describing our grave concerns that genderbased
crimes had not been adequately investigated
in the case against Thomas Lubanga and providing
information about the commission of these crimes by
the UPC. A redacted version of this letter is available at
.
459 See the Warrants of Arrest in The Prosecutor v. Thomas
Lubanga Dyilo (ICC-01/04-01/06-2-tEN, 10 Feb 2006) and
The Prosecutor v. Bosco Ntaganda (ICC-01/04-02/06-2-
Anx-tENG, 22 Aug 2006).
460 The Prosecutor v. William Samoei Ruto, Henry Kiprono
Kosgey and Joshua Arap Sang.
122