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

OTP Situations and Cases
Prosecution rejected the assertion of the Pre-Trial
Chamber in the Bemba case that cumulative charging
was unnecessary due to the possibility for the Trial
Chamber to recharacterise a charge under Regulation
55 to allow for the most effective legal characterisation
of facts, arguing that Regulation 55 may not always be
applicable at a later stage of the case and that it would
in fact be more burdensome to the parties, particularly
the effective preparation of the defence case, to have
to invoke Regulation 55 to resurrect charges not
confirmed by the Pre-Trial Chamber. 661
The Prosecution dealt with the specific complaints of
the Defence in relation to individual charges in the
case, including rape, torture, mutilation, persecution,
other inhumane acts and cruel treatment, and
argued that each of the charges in question contained
specific elements which did not form part of the other
offences. 662 In addition, the Prosecution emphasised
that characterising the acts in question as distinct
crimes protected separate but equally important
interests and allowed for the greatest degree of victim
participation and reparations, by acknowledging
the full extent and nature of the crimes committed
and the victimisation suffered. 663 The Prosecution
concluded that ‘where facts are capable of establishing
more than one type of criminal conduct and
responsibility, the Chamber is obliged – and it is
appropriate – to confirm all the established charges
in order to encompass the entire scope of criminality
committed, and injury suffered’. 664
At the time of writing this <strong>Report</strong>, no decision on the
confirmation of charges has been issued.
661 ICC-01/04-01/10-448-Red, paras 46-47.
662 ICC-01/04-01/10-448-Red, paras 48-49.
663 ICC-01/04-01/10-448-Red, paras 50-51.
664 ICC-01/04-01/10-448-Red, para 50.
Darfur
The Situation in Darfur was referred to the ICC
on 31 March 2005 by the UN Security Council,
pursuant to Rome Statute Article 13(b), which
permits the Security Council to refer a Situation
to the Prosecutor where genocide, crimes against
humanity and/or war crimes ‘appear to have
been committed’ in that State. 665 Sudan is not
a State Party to the Rome Statute, and has not
cooperated with the ICC’s investigations since
2007. 666 There are currently four cases in the
Situation in Darfur, Sudan: The Prosecutor v.
Ahmad Muhammad Harun and Ali Muhammad
Ali-Al-Rahman, The Prosecutor v. Omar Hassan
Ahmad Al’Bashir, The Prosecutor v. Bahar Idriss
Abu Garda, and, The Prosecutor v. Abdallah Banda
Abakaer Nourain and Saleh Mohammed Jerbo
Jamus.
On 6 June 2005, the Prosecutor formally opened
an investigation, and in February 2007 applied
to Pre-Trial Chamber I for Warrants of Arrest
for Ahmad Muhammad Harun (Harun) and
Ali Muhammad Ali Abd-Al-Rahman (Kushayb),
which were issued on 27 April 2007. These Arrest
Warrants were the first at the ICC to include
charges for crimes of sexual and gender-based
violence. In 2009, the ICC issued an Arrest
Warrant for Sudanese President Omar Hassan
Ahmad Al’Bashir (President Al’Bashir). On 12 July
2010, Pre-Trial Chamber I issued a second Arrest
Warrant for President Al’Bashir, pursuant to a
judgement of the Appeals Chamber, requiring
the Pre-Trial Chamber to revisit its original
decision not to include the crime of genocide.
665 Resolution 1593, UNSC, 5158th meeting, S/Res/1593
(2005), 31 March 2005. Amira Khair, Sudan Programme
Officer for the Women’s Initiatives for <strong>Gender</strong> Justice
provided information and feedback for the section on
Darfur.
666 Prosecutor of the International Criminal Court,
‘Statement to the United Nations Security Council on the
Situation in Darfur, the Sudan, pursuant to UNSCR 1593
(2005)’, New York, 11 June 2010, para 11, available at
, last visited on
26 October 2010.
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