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

OTP Situations and Cases
acts against any civilian population ‘pursuant to or
in furtherance of a State or organisational policy to
commit such attack’ (emphasis added).
The Chamber found that there were reasonable
grounds to believe that Kenyatta and Muthaura were
criminally responsible as indirect co-perpetrators
under Article 25(3)(a) and that Ali contributed ‘in any
other way’ under Article 25(3)(d). 891
Accordingly, the Chamber issued Summonses to
Appear for Muthaura, Kenyatta and Ali for the
following charges:
n
n
n
n
n
Murder as a crime against humanity, but only with
respect to the murder committed in Nakuru and
Naivasha;
Forcible transfer of population as a crime against
humanity, but only with respect to the forcible
transfer committed in Nakuru and Naivasha;
Rape as a crime against humanity, but only with
respect to rape committed in Nakuru;
Other inhumane acts as crimes against humanity,
but only with respect to the acts committed in
Nakuru and Naivasha; and,
Persecution as a crime against humanity, but only
with respect to those acts committed in Nakuru
and Naivasha. 892
The Chamber declined to issue Summonses to Appear
for the alleged crimes committed in Kisumu and
Kibera.
Satisfied that the issuance of Arrest Warrants was
unnecessary, and that issuing summonses instead was
sufficient to ensure their appearance before the Court,
the Chamber issued the Summonses with conditions
identical to the Ruto, Kosgey and Sang conditions, and
reserved its right to replace them with arrest warrants
should Muthaura, Kenyatta and Ali fail to comply
with these conditions. For further information on
the conditions for the Summonses, see the section on
Protection, below.
On 14 March 2011, the Prosecutor sought leave to
appeal two issues in the Pre-Trial Chamber’s decision
issuing Summonses to Appear for Muthaura, Kenyatta
and Ali. The first issue related to the Chamber’s
interpretation of the organisational requirement
of crimes against humanity. The other issue related
to the Chamber’s finding that forcible circumcision
of adult males does not constitute ‘other forms of
sexual violence’. 893 On 1 April 2011, 894 Single Judge
891 ICC-01/09-02/11-1, paras 45-51.
892 ICC-01/09-02/11-1, para 56.
893 ICC-01/09-02/11-2-Red, para 5.
894 ICC-01/09-02/11-27.
Trendafilova rejected the Prosecutor’s request for
leave to appeal on the grounds that neither issue
constituted an ‘appealable issue’. With regards to
the crime of forcible circumcision, the Single Judge
noted, however, that this does not preclude the
Prosecutor from bringing charges of other forms of
sexual violence at a later point in the proceedings. 895
Pursuant to Article 61(4), the Prosecutor may amend or
withdraw charges prior to the confirmation of charges
hearing. In the Document Containing the Charges
(DCC) filed on 19 August 2011, 896 the Prosecutor indeed
again charged Muthaura, Kenyatta and Ali with rape
and other forms of sexual violence as crimes against
humanity.
Reclassification of charges of other forms
of sexual violence
The Pre-Trial Chamber’s statement that it considered
forced circumcision not to be an act of a sexual
nature, without further elaborating on its finding, 897
and its denial of appeal on this point, represents a
problematic precedent for the ICC’s interpretation
of the law regarding gender-based crimes. In an
interview with IRIN on 25 April 2011, Brigid Inder,
Executive Director of the Women’s Initiatives for
<strong>Gender</strong> Justice expressed concern about the Chamber’s
reclassification of charges of forcible circumcision:
What makes these acts a form of sexual
violence is the force and the coercive
environment, as well as the intention
and purpose of the acts. [...] The forced
circumcision of Luo men has both political
and ethnic significance in Kenya and
therefore has a specific meaning. In this
instance, it was intended as an expression of
political and ethnic domination by one group
over the other and was intended to diminish
the cultural identity of Luo men. 898
895 ICC-01/09-02/11-27, para 29.
896 ICC-01/09-02/11-257-AnxA.
897 ICC-01/09-02/11-1, para 27. In a single paragraph, the
Chamber stated: ‘In the Chamber’s view, however, the
acts of forcible circumcision cannot be considered acts
of a “sexual nature” as required by the Elements of
Crimes but are to be more properly qualified as “other
inhumane acts” within the meaning of Article 7(1)(k)
of the Statute. The Chamber reaches this conclusion
in light of the serious injury to body that the forcible
circumcision causes and in view of its character, similar
to other underlying acts constituting crimes against
humanity.’
898 ‘Kenya: Plea to ICC over forced male circumcision’, IRIN
News, 25 April 2011, available at , last visited on 27
October 2011.
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