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

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.
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