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

OTP Situations and Cases
those allegedly committed by Mr Mbarushimana’. 627
In a decision on 26 October 2011, Pre-Trial Chamber I
dismissed all three grounds for the Defence challenge
to jurisdiction, finding that ‘[b]y its very nature, the
link required for an event to be encompassed in the
scope of a situation can stretch over a number of years;
accordingly, it cannot be required that the person
targeted by the Prosecutor’s investigation be active
throughout the duration of the relevant time-frame’. 628
Confirmation of charges hearing
The confirmation of charges hearing in the
Mbarushimana case took place from 16 to
21 September 2011. The Prosecution sought
the confirmation of thirteen charges against
Mbarushimana: intentionally directing attacks against
a civilian population as a war crime; 629 murder as a
crime against humanity; 630 murder as a war crime; 631
mutilation as a war crime; 632 other inhumane acts
as a crime against humanity; 633 cruel treatment as
a war crime; 634 rape as a crime against humanity; 635
rape as a war crime; 636 torture as a crime against
humanity; 637 torture as a war crime; 638 destruction of
property as a war crime; 639 pillage as a war crime; 640
and persecution as a crime against humanity. 641
The Prosecution was almost denied permission to
file its Document Containing the Charges and List of
Evidence for the confirmation hearing due to its failure
to comply with various time limits and formatting
requirements, but Single Judge Tarfusser held that to
exclude the Document Containing the Charges and List
of Evidence entirely would be disproportionate. 642
In its oral and written submissions for the
confirmation hearing, the Prosecution set out its
theory of Mbarushimana’s criminal responsibility
627 As cited in ICC-01/04-01/10-451, para 15.
628 ICC-01/04-01/10-451, para 50.
629 Article 8(2)(e)(i).
630 Article 7(1)(a).
631 Article 8(2)(c)(i).
632 Article 8(2)(c)(i) or 8 (2)(e)(xi).
633 Article 7(1)(k).
634 Article 8(2)(c)(i).
635 Article 7(1)(g).
636 Article 8(2)(e)(vi).
637 Article 7(1)(f).
638 Article 8(2)(c)(i).
639 Article 8(2)(e)(xii).
640 Article 8(2)(e)(v).
641 Article 7(1)(h). The charges of mutilation and pillage
as a war crime were not included in the Prosecution’s
original application for a Warrant of Arrest against
Mbarushimana, but were added at a later stage of the
proceedings and included in the Document Containing
the Charges.
642 ICC-01/04-01/10-306.
for the crimes against humanity committed by the
FDLR in the Kivus. 643 The Prosecution claimed that
the FDLR committed widespread attacks against
the civilian population as part of a common plan to
create a ‘humanitarian catastrophe’ in the eastern
DRC, with the aim of forcing the international
community to intervene and to put pressure on the
governments of the DRC and Rwanda to negotiate a
political settlement with FDLR leaders allowing for
their return to Rwanda. The Prosecution alleged that
Mbarushimana was one of the leaders of the political
wing of the FDLR, based in Europe, as distinct from
the military wing of the FDLR operating in the DRC.
They claimed that Mbarushimana’s contribution to
the group’s common plan involved his role on the
FDLR’s Steering Committee and his direction of the
FDLR’s media campaign from his base in Paris, issuing
‘extortive negotiation demands’ on behalf of the FDLR
and ‘publicly, immediately, repeatedly, vehemently and
falsely deny[ing] the FDLR’s direct involvement in the
crimes’. 644
In the course of the confirmation hearing, Deputy
Prosecutor Fatou Bensouda spoke on behalf of the
Office of the Prosecutor, arguing that Mbarushimana
‘represented the respectable public face of the FDLR’, 645
but in fact ‘played [a] leading role in the FDLR’s
extortive international campaign’. 646 The Deputy
Prosecutor emphasised the gender dimension of the
conflict in her oral submissions, stating:
Raped women or castrated men were
assaulted and injured, not only physically
and psychologically, but also in their
identities as men and women in society.
In this way, these types of crimes seek to
destroy the identities of individuals, the
cohesion of families and the social structure
of communities. 647
The Prosecution later expanded on these submissions,
arguing that the sexual violence committed by
the FDLR was a crucial component of their plan to
terrorise the civilian population and to destroy the
physical integrity and social identities of civilians. The
Prosecution stated:
Women whose fetuses were extracted from
their wombs were attacked in a way that
can affect only women. They were deprived
of being able to give birth and be mothers.
643 ICC-01/04-01/10-T-6-Red2-ENG, ICC-01/04-01/10-T-7-
Red-ENG and ICC-01/04-01/10-448-Red.
644 ICC-01/04-01/10-448-Red, paras 1-8.
645 ICC-01/04-01/10-T-6-Red2-ENG, p 33, line 23.
646 ICC-01/04-01/10-T-6-Red2-ENG, p 34, lines 20-21.
647 ICC-01/04-01/10-T-6-Red2-ENG, p 33, lines 9-14.
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