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

OTP Situations and Cases
destruction of property and looting, as well as to the
infliction of injuries. 870 She stressed that even Defence
witnesses spoke about such widespread acts taking
place. Fundamentally, she emphasised that allegations
of acts of burning and destruction of property as well
as looting featured prominently and centrally in the
presentation of the Prosecution’s case. 871
Legal Representative Chana argued that in Article 61(7)
(c)(ii) 872 ‘different’ included the sense of ‘additional’,
and that this allowed the Pre-Trial Chamber to request
the Prosecutor to amend the charge ‘to include
additional charges or to include additional criminal
conduct within an existing charge’. 873 She stressed that
the victims are concerned that acts of destruction/
burning of property, looting or infliction of property
were not necessarily excluded in the charges, but
rather that such acts were not clearly and expressly
included therein. 874 The Legal Representative thus
submitted that the Pre-Trial Chamber should exercise
its powers under Article 61(7)(c)(ii) to expressly include
acts of destruction of property and looting in Count 5
and 6 (persecution), as well as to add counts of other
inhumane acts of a similar character intentionally
causing great suffering, or serious injury to body or
mental or physical health (Article 7(1)(k)), regarding
acts of destruction of property, looting and the
infliction of personal injuries to the charges against
Ruto, Kosgey and Sang. 875
On 22 September 2011, the Pre-Trial Chamber granted
the request and directed the Legal Representative
to include her observations in her final written
submissions. 876 These were filed on 30 September
2011. 877 In her final written submissions, Common
Legal Representative Chana reiterated her previous
arguments, regarding the inclusion of acts of
destruction of property, looting and the infliction of
personal injury within the charges and the Chamber’s
powers under Article 61(7)(c)(ii). Referring to the
Appeals Chamber decision in the Lubanga case
concerning the applicability of Regulation 55, she
stressed ‘there is no reason in principle why the Pre-
Trial Chamber should have no corresponding power at
the pre-trial stage’. 878
870 ICC-01/09-01/11-333, para 12.
871 ICC-01/09-01/11-333, paras 13-15.
872 Article 61(7)(c)(ii) provides that the Pre-Trial Chamber
may ‘adjourn the [confirmation of charges] hearing and
request the Prosecutor to consider amending a charge
because the evidence submitted appears to establish a
different crime within the jurisdiction of the Court’.
873 ICC-01/09-01/11-333, paras 18, 22.
874 ICC-01/09-01/11-333, para 19.
875 ICC-01/09-01/11-333, para 27.
876 ICC-01/09-01/11-338.
877 ICC-01/09-01/11-344.
878 ICC-01/09-01/11-344, para 20.
Similarly, in his opening statement at the start of the
confirmation of charges hearing on 21 September
2011, Victims’ Common Legal Representative Morris
Anyah, representing participating victims in the
second case in the Kenya Situation, spoke about the
legal characterisation of the facts. He stated that
‘at the end of these hearings as you listen to the
evidence an issue may arise if the Prosecution is
able to sustain its burden and to establish the facts
alleged, which include allegations about destruction
of property, whether or not acts of burning and
destruction of property may be charged as a crime
against humanity of either persecution or forcible
transfer of population’. 879 He stressed, however, that
this issue would become applicable only at the end of
the confirmation hearings. As of the time of writing
this <strong>Report</strong>, submissions on the legal characterisation
of the facts have not yet been filed by the Legal
Representative in the public record of the Muthaura
et al case.
879 ICC-01/09-02/11-T-4-ENG, p 68 lines 13-18.
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