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

OTP Situations and Cases
the right to replace the Summonses with arrest
warrants. For further discussion of the conditions for
the Summonses, please see the section on Protection,
below.
On 15 August 2011, the Victims’ Common Legal
Representative Chana filed a request 858 with the
Pre-Trial Chamber for authorisation to submit
observations on specific issues of law and/or fact,
relating to the exclusion of acts of destruction and/
or burning of property in the charges against Ruto,
Kosgey and Sang. She noted that the Prosecution’s
Document Containing the Charges and the Annex
thereto, filed on 1 August, 859 both referred explicitly
to evidence of destruction and burning of property
but failed to expressly include such acts in the charge
of persecution. 860 She stressed that almost all of the
327 victims accepted to participate in the case have
suffered loss as a direct result of destruction and/
or burning of property and that they all would seek
reparations for this loss. In view of the fact that the
evidence relied upon by the Prosecutor in support of
the charges clearly included evidence of destruction
and/or burning of property, the Legal Representative
emphasised that ‘it must be a matter of most serious
concern that destruction and/or burning of property
has not been clearly included in the charges proposed
to be brought by the Prosecutor’. 861 She noted that
these concerns about the Prosecution’s failure to
adequately base its charges on the evidence collected,
related also to its failure to include charges based on
evidence of infliction of injuries and looting. 862 She
thus requested authorisation to submit observations
on the following questions:
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whether acts of destruction and/or burning of
property, infliction of injuries and looting can
amount to persecution under Article 7(1)(h) of the
Statute;
whether acts of destruction and/or burning of
property, infliction of injuries and looting can
amount to other inhumane acts of a similar
character to intentionally causing great suffering,
or serious injury to body or mental or physical
health under to Article 7(1)(k) of the Statute;
858 ICC-01/09-01/11-263.
859 ICC-01/09-01/11-242 and ICC-01/09-01/11-242-AnxA.
860 ICC-01/09-01/11-263, para 11.
861 ICC-01/09-01/11-263, para 13.
862 ICC-01/09-01/11-263, para 14.
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whether under Article 61 863 the Pre-Trial Chamber
has the power, on its own motion, on a motion of a
party, or at the request of a victim’s representative:
(i) to confirm a charge additional to the charges
specified by the Prosecutor where there is
sufficient evidence to support an additional
charge; (ii) when confirming a charge that has
been specified by the Prosecutor, to confirm or
clarify that the charge includes acts in addition to
those specified by the Prosecutor; or (iii) to order,
direct, request or invite the Prosecutor to add
additional charges, or to include additional acts
within the scope of an existing charge; and
whether, if the PTC has these powers, such powers
should be exercised. 864
In a decision on 19 August 2011, Judge Trendafilova,
acting as Single Judge of Pre-Trial Chamber II, rejected
the request. 865 The Single Judge noted that the Pre-
Trial Chamber did not have the authority to modify
the charges brought by the Prosecutor or to confirm
charges that were not brought against the suspects. 866
However, she noted that Article 61(7)(c)(ii) did permit
the Chamber, on the basis of the confirmation hearing,
to adjourn the hearing and request the Prosecutor
to consider amending a charge. Judge Trendafilova
found that, because the confirmation hearing had yet
to take place, the request by the Legal Representative
was premature and was therefore rejected. 867 The
Single Judge stressed that this rejection was without
prejudice to the Chamber entertaining the arguments
put forth by the Legal Representative at a later stage in
the proceedings. 868
Following the end of the confirmation hearing on 8
September, on 16 September the Legal Representative
filed a new request to submit observations on the
above-listed questions. 869 She observed that, in
addition to the references to evidence of destruction
and/or burning of property in the DCC and Annex, in
the course of the confirmation hearing, statements
were made repeatedly referring to widespread acts of
863 Article 61 addresses the procedures in preparation,
for and during, the confirmation of charges hearing,
and sets out the requirements for the confirmation
of charges. It also provides that the Pre-Trial Chamber
can adjourn the confirmation hearing and request the
Prosecutor to submit additional evidence or amend
a charge because the evidence submitted appears to
establish a different crime.
864 ICC-01/09-01/11-263, para 15.
865 ICC-01/09-01/11-274.
866 ICC-01/09-01/11-274, para 7.
867 ICC-01/09-01/11-274, para 9.
868 ICC-01/09-01/11-274, para 10.
869 ICC-01/09-01/11-333.
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