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

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OTP Investigation and Prosecution Strategy Status of all gender-based charges across each case as of 16 September 2011 continued Case Stage of proceedings Charges currently included Prosecutor v. Confirmation of charges Charges against Mbarushimana: Mbarushimana hearing held in • Torture as a crime against humanity September 2011; • Torture as a war crime no decision issued at • Rape as a crime against humanity time of writing • 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 • Persecution (based on gender) as a crime against humanity • Mutilation as a war crime Prosecutor v. Confirmation of charges Charges against Muthaura: Muthaura et al hearing held in • Rape as a crime against humanity September-October 2011; • Other inhumane acts as a crime against no decision issued at humanity time of writing • Persecution (by means of rape and other inhumane acts) as a crime against humanity Charges against Kenyatta: • Rape as a crime against humanity • Other inhumane acts as a crime against humanity • Persecution (by means of rape and other inhumane acts) as a crime against humanity Charges against Ali: • Rape as a crime against humanity • Other inhumane acts as a crime against humanity • Persecution (by means of rape and other inhumane acts) as a crime against humanity 124
OTP Investigation and Prosecution Strategy The role of the Pre-Trial Chamber Once a situation has been referred to the ICC or the Prosecutor decides proprio motu to proceed with a Situation, the Pre-Trial Chamber plays the role of ‘gatekeeper’ in respect of the Prosecutor’s ability to proceed to the next phase of the proceedings. In order to open an investigation in a situation, once the Prosecutor concludes that there is a reasonable basis to proceed, he or she submits a request for authorisation to the Pre-Trial Chamber, together with supporting material. 461 In order to be included in the charges at trial at the ICC, the evidence presented by the Prosecutor to support the charges must then withstand increasing levels of scrutiny by the Pre-Trial Chamber as prescribed by the Rome Statute. On receiving a request for an arrest warrant or summons to appear from the Prosecutor, the Pre-Trial Chamber must be satisfied that the evidence provided by the Prosecutor shows reasonable grounds to believe that the suspect committed those crimes as charged. 462 At the confirmation of charges stage of the proceedings, the Pre-Trial Chamber must be satisfied that the evidence provided by the Prosecutor shows substantial grounds to believe that the suspect committed those crimes as charged. 463 Charges for gender-based crimes appear to be particularly susceptible to attrition by judicial decisions at the arrest warrant or summons to appear stage, and at the confirmation of charges stage of the proceedings. (No case to date, and thus none containing gender-based crimes, has yet reached the stage of trial judgement or appeal judgement.) In conducting research on gender-based crimes charges at the ICC, the Women’s Initiatives notes that the public availability of information regarding which charges were sought and which charges were included at each of these procedural stages in 461 Article 15(3). 462 Article 58(1)(a). 463 Article 61(7). each case is inconsistent, thereby making direct comparisons impossible. However, the available information does allow analysis of five cases in which gender-based charges were initially sought and the Prosecution’s application for an arrest warrant or summons to appear is publicly available (the cases against Bemba, Harun & Kushayb, President Al’Bashir, Mbarushimana and Muthaura et al). In these five cases, only two charges out of a total of 138 requested by the Prosecution were not included in the arrest warrants or summonses to appear issued by the Pre-Trial Chamber, and both of these charges related to sexual or gender-based violence. 464 Women’s Initiatives’ analysis also shows that only two cases involving gender-based crimes, Bemba and Katanga & Ngudjolo, have reached the confirmation of charges phase to date, 465 and in those two cases, the Pre-Trial Chamber refused to confirm 33% of all charges of gender-based crimes sought by the Prosecution. In total, a third of charges for gender-based crimes have never made it to the trial stage of the proceedings. 466 464 Two counts of ‘other forms of sexual violence’ were not included in the Arrest Warrant in the Bemba case. See further <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2008, p 50-51. 465 Although gender-based crimes have been sought by the Prosecution in the Mbarushimana and Muthaura et al cases, which have been subject to a confirmation of charges hearing, no decision has yet been issued by the Pre-Trial Chamber. 466 Ten out of fifteen charges (66.6%) of gender-based crimes were confirmed in the Bemba and Katanga & Ngudjolo cases. Two charges of outrages on personal dignity were not confirmed in the Katanga & Ngudjolo case (eight charges of rape and sexual slavery went forward to trial), while two counts of torture and one count of outrages on personal dignity were not confirmed in the Bemba case (two charges of rape were confirmed against Bemba). 40% of gender-based crimes (6 out of 10) were not successfully confirmed in these two cases. The offences of rape as a crime against humanity and rape as a war crime were confirmed in the Bemba case, while torture as a war crime, torture as a crime against humanity and outrages on personal dignity as a war crime were not confirmed. In the Katanga & Ngudjolo case, the crimes of rape as a crime against humanity, rape as a war crime, sexual slavery as a crime against humanity and sexual slavery as a war crime were confirmed, but the crime of outrages on personal dignity as a war crime was not confirmed. 125
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Acknowledgements Authors Brigid Ind
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