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

Trial Proceedings
sought for rape as a crime against humanity
and a war crime; rape as torture as a crime
against humanity and a war crime; outrages
upon personal dignity as a war crime; and other
forms of sexual violence as a war crime and a
crime against humanity. 1401 These charges as
originally formulated would have addressed
not only the rapes themselves, but also the
pain and suffering experienced by victims/
survivors of rape and those forced to watch their
family members being raped, as well as the
humiliation experienced by victims/survivors
who were raped publicly or forced to undress
publicly. Unfortunately, as discussed in more
detail in the OTP section, in the Bemba case
there has been a narrowing of charges at both
the arrest warrant and confirmation of charges
stages of the proceedings, due to problems with
both the evidence presented and the Pre-Trial
Chamber’s reasoning. Because of the narrowing
of the charges, the Chamber is limited to
hearing testimony about rape, and will not hear
testimony from witnesses about these wider
aspects of the crimes. 1402
In addition, both the Defence and the Chamber
have intervened during the testimony of at
least five witnesses of sexual violence, limiting
their ability to testify about their experiences
in full. In at least one instance, 1403 the Defence
intervened at the start of the witness’ testimony,
arguing that for the wellbeing of the witness,
and because it agreed with the Prosecution
as to the existence of the rape, there was no
need to enter into the details of the attack.
The Prosecution conceded to the Defence, and
proceeded to question the witness about more
circumstantial matters, rather than about her
experience of the rape. However, in a filing on
1401 Articles 7(1)(g) and 8(2)(e)(vi); 7(1)(f) and 8(2)(c)(i); 8(2)(c)
(ii); 7(1)(g) and 8(2)(e)(vi).
1402 See further ‘Statement by the Women’s Initiatives for
<strong>Gender</strong> Justice on the Opening of the ICC Trial of Jean-
Pierre Bemba Gombo’, Women’s Initiatives for <strong>Gender</strong>
Justice, 22 November 2010, available at .
1403 Witness 22.
2 December 2010, the Defence retracted its
declaration, stating it withdrew its ‘procedural
concession’ and that it intended to question the
witness in relation to the same facts to cover all
details. 1404
Similarly, on at least four occasions, the Chamber
directed the Prosecution not to pursue a line
of questioning about the details of the rape,
which resulted in the Prosecution abandoning
this line of questioning, again focusing only on
more circumstantial questions. 1405 Furthermore,
analysis of the available information indicated
that the Prosecution pursued a very clinical
line of questioning in relation to rape and did
not allow for sufficient testimony regarding
the extent of the harm and suffering, material
relevant for future reparations orders as well as
for a possible reclassification of the charges to
once again include rape as torture. 1406
1404 ICC-01/05-01/08-1069. See also ICC-01/05-01/08-T-42-
Red-ENG, p 4 lines 22-25; p 5 lines 1-4.
1405 Specifically, in the case of Witness 23, Presiding Judge
Steiner intervened during the Prosecution examinationin-chief,
and told the Prosecution that the Chamber
was satisfied with the physical details of the attack.
In the case of Witness 82, Presiding Judge Steiner also
intervened in the Prosecution examination-in-chief
saying that the Chamber had heard ‘enough’. In the
case of Witness 80, Presiding Judge Steiner intervened
in the Prosecution examination-in-chief indicating that
the Prosecution was asking questions that might even
offend the witness in relation to the exact details of
the rape. She intervened again when the Prosecution
proceeded to ask the witness whether she resisted the
rape. Judge Steiner correctly reminded the Prosecution
that it was not required to prove lack of resistance in
the face of threats. In the case of Witness 29, Presiding
Judge Steiner intervened to inform the Prosecution that
the Chamber was satisfied with the physical details of
the attack. When the Prosecution decided to question
the witness about one additional detail, the Presiding
Judge strongly reminded the Prosecution not to ask
embarrassing or intrusive questions.
1406 See further ‘Presentation by Brigid Inder to the UNHCHR
Expert Meeting on <strong>Gender</strong> and Witness and Victim
Protection’, UN High Commissioner for Human Rights,
Geneva, 26-27 May 2011.
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