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

Judiciary – Key Decisions Protection and Protective Measures
The Prosecutor v. Callixte Mbarushimana
On 23 August 2011, Single Judge Monageng partially
rejected a Defence request for disclosure of certain
information regarding alleged victims of sexual
violence. 2064 The Defence had requested information
on the age of Witness 694, the details of those present
during the interview with that witness, and all
psycho-social assessments or similar pre-interview
materials relating to victims or witnesses of sexual
violence whose evidence was to be relied on during
the confirmation of charges hearing. Judge Monageng
held that disclosing the age of Witness 694 could, if
considered in the context of the events and details
described in her statement, lead to her identification,
which the Pre-Trial Chamber had previously held
would entail an unjustifiable risk to her safety. 2065
It also found that the Defence could raise concerns
about any connection between her reliability and her
age without exact reference to the latter. In its reply
to the Defence request for disclosure, the Prosecution
surprisingly did not object as a matter of principle to
the disclosure of the identities of Prosecution staff
for the interview of Witness 694. It did, however,
contest the relevance and the late submission of the
Defence request, and asserted that the Defence did not
proffer any justification. The Prosecution’s submission
was silent as to the disclosure of the identities of
other persons present in the interview. Single Judge
Monageng therefore authorised the disclosure of the
names and functions of Prosecution staff present at
the interview, and ordered the Prosecution to either
submit a request to redact information pertaining to
identities of the other persons present, or to disclose
it to the Defence. 2066 None of the subsequent, related
filings have been made public as of the writing of this
<strong>Report</strong>. The disclosure of the identities of OTP Staff
present during witness interviews to the Defence at
this stage of proceedings and as a result of a request
by the Defence for such information, is a first before
the ICC.
However, in relation to the question of access to
psycho-social assessments of victims and witnesses
of sexual violence, which the Defence had requested
in order to identify any inconsistencies between the
version of events related by the victim or witness
to a psychologist or counsellor and the version
provided to Prosecution investigators, the Judge
found that the Defence request was predicated on a
‘biased assumption’. 2067 Judge Monageng held that
this request, ‘aimed at exploiting the psycho-social
assessments of vulnerable witnesses and using
2064 ICC-01/04-01/10-386.
2065 ICC-01/04-01/10-386, p 4, and ICC-01/04-01/10-268.
2066 ICC-01/04-01/10-386, p 5.
2067 ICC-01/04-01/10-386, p 6.
these assessments to contest the credibility of these
witnesses [was] entirely inappropriate and, if granted,
would tend to subvert the necessary purpose served
by the carrying out of such assessments’. 2068 The Judge
therefore rejected the Defence request for disclosure of
this information. In a decision of 27 September 2011,
the Defence application for leave to appeal this issue
was rejected by the Pre-Trial Chamber. 2069
The Prosecutor v. William Samoei Ruto,
Henry Kiprono Kosgey and Joshua Arap Sang
In the proceedings against Ruto, Kosgey and Sang, on
5 August 2011, Pre-Trial Chamber II issued a decision,
appointing a common legal representative for all
victims accepted to participate 2070 and directing her to
consult with her clients about the possible disclosure
of their identity to the Defence. On 25 August 2011,
the Common Legal Representative of Victims, Sureta
Chana, filed her observations. 2071 LRV Chana submitted
that a total of 98 victims were consulted and that all
declared that they did not want their identities to be
disclosed to the Defence. 2072 All victims expressed grave
concerns about their security situation, citing especially
both the upcoming General Elections in 2012 and the
Chamber’s impending decision on the confirmation of
charges. Fifty-five of the consulted victims stressed that
they were still ‘living amongst the enemy’ and lived in
constant fear of being targeted for cooperating with
the ICC. 2073
2068 ICC-01/04-01/10-386, p 6.
2069 ICC-01/04-01/10-443.
2070 ICC-01/09-01/11-249.
2071 ICC-01/09-01/11-292.
2072 ICC-01/09-01/11-292, para 5.
2073 ICC-01/09-01/11-292, para 7.
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