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

OTP Investigation and Prosecution Strategy
<strong>Gender</strong>-based violence charged as torture or
outrages on personal dignity has never been
successfully confirmed at the ICC.
The reasons for the vulnerability of charges for
gender-based crimes have varied from case to
case. In some cases, for example in the Lubanga
case, the absence of any charges for genderbased
crimes appears to result from the failure
on the part of the Prosecution to prioritise sexual
and gender-based violence in its investigations
and prosecutorial strategy. 467 In some instances,
the Pre-Trial Chamber found that the Prosecution
had not provided sufficient evidence of genderbased
crimes to uphold the charges sought. In
the Katanga & Ngudjolo case, for example, the
Prosecution did not provide sufficient evidence
to link the defendants with the charges of
outrages on personal dignity. 468 In the Muthaura
et al case, the geographic scope of the charges of
gender-based crimes were narrowed due to the
failure of the Prosecution to provide evidence
of their commission in certain locations, as
well as the individual criminal responsibility
of Muthaura, Kenyatta or Ali for gender-based
crimes committed in other locations. 469 Women’s
Initiatives’ research shows in some instances
the Office of the Prosecutor may rely too heavily
on information from UN reports, NGO reports
or information provided by governments, press
clippings or newspaper articles, to construct
charges at the application for arrest warrant
or summons to appear and confirmation of
charges stages of proceedings, rather than a
solid reliance on witness testimonies and other
primary evidence. An initial review conducted by
the Women’s Initiatives of the publicly available
467 See further <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2010, p 89.
468 Judge Ušacka submitted a dissenting opinion to the
confirmation of charges decision in the Katanga &
Ngudjolo case, where she held that the Prosecution had
not provided sufficient evidence to link the accused to
the crimes of rape and sexual slavery and that further
evidence on these charges should have been requested.
See further <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2008, p 48-49.
469 See discussion of this in the Muthaura et al section
below.
arrest warrant applications shows a liberal
use of open source material in cases for which
charges have been dismissed. 470
In other instances, charges of gender-based
crimes were not included due to legal findings
by the Pre-Trial Chamber, including legal
findings which adopted interpretations of the
Rome Statute and Elements of Crimes which
were in some cases excessively narrow and
in others directly contradictory to existing
international criminal jurisprudence on genderbased
crimes. 471 For example, in the decision
on the Prosecutor’s application for a warrant
of arrest in the Bemba case, 472 the Pre-Trial
Chamber did not include a charge of other forms
of sexual violence as a crime against humanity
in the arrest warrant, which had been based on
allegations that MLC troops had forced women
to undress in public in order to humiliate them.
The Pre-Trial Chamber held that ‘the facts
submitted by the Prosecutor do not constitute
other forms of sexual violence of comparable
gravity to the other forms of sexual violence
set forth in Article 7(1)(g)’. 473 The Chamber did
not cite any legal authority for this proposition
beyond a footnote to the relevant provision in
the Elements of Crimes and did not provide
further legal reasoning for their decision.
470 Not all applications for arrest warrants or summonses
to appear are publicly available, and the available public
versions of applications are often heavily redacted,
including the references to witness statements or
internal Prosecution investigator’s reports. However, an
analysis of the available information shows that public
source information was relied upon in the Bemba and
Abu Garda cases. In the Bemba case, as noted in this
section, not all charges were confirmed, and in the Abu
Garda case, no charges were confirmed. See further
<strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2010, p 63-67 and 109-111.
471 See for example the discussion of the Pre-Trial
Chamber’s legal findings on the contextual elements
of crimes against humanity in the Muthaura et al case,
discussed further below.
472 ICC-01/05-01/08-14-tEN.
473 ICC-01/05-01/08-14-tEN, para 40. The charge of other
forms of sexual violence as a war crime, based on the
same facts, was recharacterised as outrages on personal
dignity.
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