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

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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
OTP Investigation and Prosecution Strategy Status of all gender-based charges across each case as of 16 September 2011 The chart lists only the 12 individual indictees for whom charges for gender-based crimes have been sought by the Prosecutor. Case Stage of proceedings Charges currently included Prosecutor v. Bemba At trial Charges against Bemba: • Rape as a crime against humanity • Rape as a war crime Prosecutor v. Kony et al Arrest Warrant issued; Charges against Kony: no accused in custody • Sexual slavery as a crime against humanity • Rape as a crime against humanity • Rape as a war crime Charges against Otti (believed to be deceased): • Sexual slavery as a crime against humanity • Rape as a war crime Prosecutor v. Al’Bashir Arrest Warrant issued; Charges against President Al’Bashir: no accused in custody • Sexual violence causing serious bodily or mental harm as an act of genocide • Rape as a crime against humanity Prosecutor v. Harun Arrest Warrant issued; Charges against Harun: & Kushayb no accused in custody • Rape as a crime against humanity (2 counts) • Rape as a war crime (2 counts) • Outrages on personal dignity as a war crime • Persecution by means of sexual violence as a crime against humanity (2 counts) Charges against Kushayb: • Rape as a crime against humanity (2 counts) • Rape as a war crime (2 counts) • Outrages on personal dignity as a war crime • Persecution by means of sexual violence as a crime against humanity (2 counts) Prosecutor v. Katanga At trial Charges against Katanga: & Ngudjolo • Sexual slavery as a crime against humanity • Sexual slavery as a war crime • Rape as a crime against humanity • Rape as a war crime Charges against Ngudjolo: • Sexual slavery as a crime against humanity • Sexual slavery as a war crime • Rape as a crime against humanity • Rape as a war crime continued overleaf 123
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Acknowledgements Authors Brigid Ind
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