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

OTP Situations and Cases
Women who were victims of rape were
humiliated and broken down as both women
and spouses. Men who … were castrated
before the people, their families, were
deprived of their masculinity, as it is defined
socially, or else as they identify with it. The
effect of this is to vilify them before their
families. A man whose penis had been cut off
by the soldiers of the FDLR later on asked his
wife about this, and I quote him: “Who am I
today,” he said, “and on this earth” 648
On the opening day of the confirmation hearing, the
Defence raised a number of challenges to the content
of the Document Containing the Charges, including
an alleged lack of specificity due to defective pleading
of the mode of liability with which Mbarushimana
was charged. 649 However, the most substantial
challenge raised by the Defence related to the issue
of cumulative charging. During the confirmation
of charges hearing in the Bemba case, the Pre-Trial
Chamber had held that the practice of cumulative
charging was unfair to the Defence, and had refused to
confirm charges of torture and outrages on personal
dignity relating to sexual violence on the basis that
the conduct underlying those charges was subsumed
within the charge of rape. 650 As described above,
following that decision, the Women’s Initiatives filed
an amicus curiae brief before the Pre-Trial Chamber
arguing that cumulative charging did not violate
fair trial practices, was a well-established practice in
numerous national and international courts, and that,
as a result of the Chamber’s decision not to confirm the
charges, the full extent of the harm suffered by victims
would not be properly addressed at trial. However,
the Pre-Trial Chamber denied the Prosecution leave to
appeal its decision on the confirmation of charges, and
the issue was therefore not addressed at the appellate
level. 651
At the Mbarushimana confirmation hearing, the
Defence cited the decision of the Pre-Trial Chamber
in the Bemba case to challenge what it portrayed as
‘superfluous characterisation’ of multiple charges
648 ICC-01/04-01/10-T-7-Red-ENG, p 17, lines 13-23.
649 ICC-01/04-01/10-T-6-Red-ENG, p 13-16.
650 ICC-01/05-01/08-424. See further <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong>
2009, p 63-65.
651 ICC-01/05-01/08-532. For more information on the
intervention of Women’s Initiatives for <strong>Gender</strong> Justice in
the Bemba case, see further <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2009, p
66-67, ICC-01/05-01/08-466 and Legal Filings submitted
by the Women’s Initiatives for <strong>Gender</strong> Justice to the
International Criminal Court, available at .
relating to the same mode of behaviour. 652 The Defence
argued that the charges of other inhumane acts
and cruel treatment should be subsumed into the
charges of torture, as torture was the most specific
characterisation of the underlying facts. 653 The Defence
went on to claim that ‘mutilation and rape are more
specific means of inflicting forms of torture’, 654 and
argued that the Chamber should therefore dismiss the
two charges of torture (as well as other inhumane acts
and cruel treatment) as ‘only a distinct crime could
justify a distinct characterisation’. 655 The Defence also
alleged that, since the charges of inhumane acts, cruel
treatment, torture and rape were based on the same
modes of behaviour in the alleged facts, charging
them as both a war crime and crime against humanity
was an ‘irrelevant multiplication’ that would place
an undue burden on the Defence. 656 Counsel for the
Defence offered no legal authority for this proposition
during the hearing.
In its final written submissions on the confirmation of
charges, the Prosecution responded to the challenges
to cumulative charging raised by the Defence. 657
The Prosecution noted that nothing in the Statute
authorises a Pre-Trial Chamber to decline to confirm
charges if it considers that they may be unnecessary
or unduly burdensome to the Defence, only to decline
to confirm a charge for which insufficient evidence
has been advanced. 658 The Prosecution argued that
the decision in the Bemba case cited by the Defence
had erroneously declined to confirm the charges
for torture and outrages on personal dignity due to
a misapplication of a decision from the Yugoslavia
Tribunal which related to impermissible cumulative
convictions, rather than cumulative charging. 659
The Prosecution also challenged the failure of the
Pre-Trial Chamber in the Bemba case to cite any
legal authority prohibiting or limiting the practice
of cumulative charging at the charging phase of a
case, rather than at the final judgement phase of
proceedings, while simultaneously acknowledging
that both national and international criminal
jurisdictions permit cumulative charging. 660 The
652 ICC-01/04-01/10-T-6-Red-ENG, p 18, lines 4-12.
653 ICC-01/04-01/10-T-6-Red-ENG, p 18, lines 13-22.
654 ICC-01/04-01/10-T-6-Red-ENG, p 18, lines 23-24.
655 ICC-01/04-01/10-T-6-Red-ENG, p 19, lines 8-9.
656 ICC-01/04-01/10-T-6-Red-ENG, p 19-20.
657 ICC-01/04-01/10-448-Red.
658 ICC-01/04-01/10-448-Red, paras 42-43.
659 ICC-01/04-01/10-448-Red, para 44, citing the Pre-Trial
Chamber’s reliance on the judgement from the Appeals
Chamber in the Celibici ˇ ´ case at the ICTY. See ICC-01/05-
01/08-424, fn 270, citing Prosecutor v. Delalic, ´ IT-96-21,
Appeals Judgement, 20 February 2001.
660 ICC-01/04-01/10-448-Red, para 45.
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