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

OTP Investigation and Prosecution Strategy
As is clear from the discussion above, although
the primary responsibility for investigative
strategy and the selection of charges in relation
to gender-based violence falls on the Prosecutor,
a number of other actors, including the Pre-Trial
Chamber, the legal representatives of victim
participants and NGOs, have also sought to
contribute to the ultimate characterisation of
facts and charges regarding gender-based crimes
at the pre-trial stage of proceedings. Likewise,
although the investigative and evidentiary
failings of the Prosecutor have given rise to the
loss of several charges of gender-based crimes
prior to trial, the legal findings of the Pre-Trial
Chamber have also had a significant negative
impact on the number of charges for genderbased
violence which make it to trial. However,
while errors made by the Office of the Prosecutor
can be and have been highlighted or amended by
interventions from participating victims or amici
curiae, decisions taken by a Pre-Trial Chamber
which then refuses the parties leave to appeal
cannot be remedied.
Litigation regarding public
statements by the Prosecutor
and Office of the Prosecutor
In a number of situations, Defence counsel
have challenged the Prosecutor and Office
of the Prosecutor on the grounds that public
statements made by representatives of the Office
have in some way infringed on the rights of
the accused. In some instances, the Chambers
have found that the contentions have merit,
and in almost all cases have issued strongly
worded opinions reminding the Prosecution
of its obligations under the Rome Statute to
refrain from making public statements that
could impact upon the merits of the case sub
judice. Chambers have stressed repeatedly
that all parties and participants have a duty to
safeguard the proper administration of justice
and the integrity of judicial proceedings.
Kenya Situation
On 30 March 2011, the Defence for Muthaura
sought an intervention by the Pre-Trial Chamber
concerning its claims that the Prosecutor
made extra-judicial statements to the press
that negatively impacted upon the rights
of the Defence, infringed upon his fair trial
rights and the integrity of the judicial process
and presented irremediable prejudice to
the Defence. 502 The Muthaura Defence cited
in particular to statements made during a
14 March press conference, following the
issuance of Summonses to Appear, in which the
Prosecutor presented his theory as uncontested
facts. 503 The Muthaura Defence asserted that
in so doing, the Prosecutor risked polluting the
witness pool, arguing that ‘the more putative
witnesses hear the Prosecutor’s narrative,
presented as uncontroverted truth, the greater
the risk that witnesses who have a different
recollection may doubt themselves and be
502 ICC-01/09-02/11-20.
503 ICC-01/09-02/11-20, para 8.
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