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

OTP Investigation and Prosecution Strategy
However, in the 1998 trial judgement in the
Akayesu case at the ICTR, the first international
criminal judgement to address or define rape
and other forms of sexual violence as a crime
against humanity, the Trial Chamber explicitly
cited forced public nudity as an archetypal
example of acts which would constitute the
crime of other forms of sexual violence. 474
Further examples of legal findings from
Chambers which have restricted or narrowed the
gender-based charges sought by the Prosecutor
can be found in numerous other cases before
the Court. In the Muthaura et al case, the Pre-
Trial Chamber recharacterised a charge of other
forms of sexual violence relating to the forcible
circumcision of men of Luo ethnicity as other
inhumane acts on the grounds that, in the
Chamber’s view, ‘acts of forcible circumcision
cannot be considered “acts of a sexual nature”
as required by the Elements of Crimes’. 475 In
the Bemba case, the Pre-Trial Chamber found
that the practice of cumulative charging was
‘detrimental to the rights of the defence’, 476
and therefore subsumed the charges of torture
and outrages on personal dignity within the
charge of rape. 477 It is a matter of some concern
to note that the Defence in the Mbarushimana
confirmation of charges hearing has cited this
decision in the Bemba case to urge the Pre-Trial
Chamber to restrict the scope of the charges for
gender-based crimes sought by the Prosecution
in that case. 478
In scrutinising the submissions of the Prosecutor
at the early stages of the proceedings – the
request to open an investigation; the request
for an arrest warrant or summons to appear;
and the confirmation of charges – the Pre-Trial
Chamber also plays a role in calling attention
474 The Prosecutor v. Akayesu, Trial Judgement, ICTR-96-4-T, 2
September 1998, para 688.
475 ICC-01/09-02/11-01, para 27.
476 ICC-01/05-01/08-424, para 202.
477 See further <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2009, p 64-65.
478 See the section on Mbarushimana below and ICC-01/04-
01/10-T-6-Red2-ENG, p 16-20.
to problems with the Prosecution’s submission
of evidence to substantiate crimes, including
but not limited to gender-based crimes. In
some instances, for instance in the decision
authorising the investigation in Côte d’Ivoire,
this role has been corrective, where the Pre-
Trial Chamber has signalled to the Prosecutor
that, based on his own submissions, it sees
more crimes that should be included in an
investigation or case. In theory, the Prosecutor
then has the opportunity to carry out further
investigations or to revise his submissions to
explicitly include the crimes signalled by the Pre-
Trial Chamber.
For example, in the decision granting the
Prosecutor’s request to open an investigation
in the Situation in Côte d’Ivoire, the Pre-Trial
Chamber throughout its decision noted
multiple instances of ‘other underlying acts
not presented by the Prosecutor’. In examining
the evidence submitted by the Prosecutor, the
Pre-Trial Chamber found that the information
indicated reasonable grounds to believe that
various additional crimes, including genderbased
crimes, had been committed in addition
to those specified in the Prosecutor’s request.
In four instances in its decision, the Pre-Trial
Chamber expanded on the crimes cited by the
Prosecutor, adding torture as a crime against
humanity 479 as well as rape, 480 pillage, 481 cruel
treatment and torture 482 as war crimes to the
crimes initially requested by the Prosecutor. The
Chamber’s decision amounted to an expanded
and corrected version of the crimes set out by
the Prosecutor in his original request to open
an investigation. This decision and a dissenting
opinion by Presiding Judge Fernández de
Gurmendi are discussed in detail below. It is
worth noting that the two judges forming the
majority in this decision, Judges Fulford and
Odio-Benito, are both part of Trial Chamber I, and
479 ICC-02/11-14, paras 83-86.
480 ICC-02/11-14, paras 144-148.
481 ICC-02/11-14, paras 162-165.
482 ICC-02/11-14, paras 166-169.
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