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

OTP Situations and Cases
Although the Chamber, in reclassifying acts of forcible
circumcision as other inhumane acts, overlooked
this broader context of the crimes, the Office of the
Prosecutor had also failed to stress these points in its
application for summonses to appear, which merely
stated that these acts were of a sexual nature, without
elaborating on this point. The Women’s Initiatives has
called on the Prosecutor to properly argue the case
for charging forced circumcision as a form of sexual
violence.
Two of the three Judges of Pre-Trial Chamber II,
Judge Trendafilova and Judge Kaul, have previously
contributed to jurisprudence on the crime of other
forms of sexual violence, holding in the Bemba case
that forced nudity did not constitute this crime on the
grounds that it was not of comparable gravity to the
other crimes enumerated under Article 7(1)(g) of the
Rome Statute. 899
Confirmation of charges hearings
On 3 June 2011, the Chamber requested observations
from all parties and participants in both cases on
the possibility and feasibility of conducting the
confirmation of charges hearings in Kenya, rather than
at the seat of the Court in The Hague. 900 As described
in greater detail in the Protection section, in a decision
on 29 June 2011 in the Ruto et al case, and in a
decision on 19 July 2011 in the Muthaura et al case, in
preparation for the confirmation hearings, the Single
Judge indicated that the Chamber would not consider
further the option of holding confirmation hearings in
Kenya because of security concerns. 901
In preparation for the confirmation hearing, the
document containing the charges in the case of Ruto
et al was filed by the Prosecution on 1 August 2011, 902
and an amended version, providing small corrections,
on 15 August 2011. 903 The document containing the
charges in the case of Muthaura et al was filed on 19
August 2011, 904 and an amended version, providing
small corrections, on 2 September 2011. 905
The confirmation of charges hearing in the case of
Ruto et al was held before Pre-Trial Chamber II from
1 September – 8 September 2011. 906 The Chamber
authorised 327 victims – 146 female and 181 male
victims – to participate in the proceedings, represented
by Common Legal Representative Sureta Chana. The
Pre-Trial Chamber had not handed down a decision on
the confirmation of charges as of the writing of this
<strong>Report</strong>.
In its opening statement, the Prosecution argued that
the evidence presented by the Prosecution should
lead the Pre-Trial Chamber to confirm the charges
against Ruto, Kosgey and Sang and to commit them
to trial. The Victims’ Legal Representative explained
that the victims ‘have a longing to see justice done
in relation to what happened to them and to obtain
reparation for their losses’. 907 With the continuing
reign of impunity in Kenya, the victims expressed
the belief that the ICC process finally presented
them with some measure of hope. The three Defence
899 ICC-01/05-01/08-14-tENG, para 40.
900 ICC-01/09-01/11-106; ICC-01/09-02/11-103.
901 ICC-01/09-01/11-153, para 14; ICC-01/09-02/11-181,
para 14.
902 ICC-01/09-01/11-242-AnxA.
903 ICC-01/09-01/11-261.
904 ICC-01/09-02/11-257-AnxA.
905 ICC-01/09-02/11-280.
906 Transcripts of the hearings: ICC-01/09-01/11-T-5-ENG;
ICC-01/09-01/11-T-6-Red-ENG; ICC-01/09-01/11-T-7-Red-
ENG; ICC-01/09-01/11-T-8-Red-ENG; ICC-01/09-01/11-T-
9-Red-ENG; ICC-01/09-01/11-T-10-Red-ENG; ICC-01/09-
01/11-T-11-Red-ENG; and ICC-01/09-01/11-T-12-ENG.
907 ICC-01/09-01/11-T-5-ENG, p 79 lines 17-19.
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