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

Substantive Work of the ICC and ASP Recommendations
n
n
n
n
In managing witness testimony, ensure that victims of sexual violence are given the
opportunity to testify about their experiences in full. Such testimony ‘is a vital component of
the justice process and a crucial part of the experience of justice for victims/witnesses of these
crimes’. 2249 Minimise interventions in such testimony, while taking necessary measures to
preventing re-traumatisation of witnesses in consultation with the VWU.
In 2012, the Presidency of the ICC should oversee a sexual harassment audit of the Court. This
should include each organ and be implemented at all levels of the institution. The results of the
audit should be shared with the Bureau of the Assembly of States Parties. See the Structures and
Institutional Development Recommendations.
The Presidency should consider organising a legal seminar for all judges on the existing
jurisprudence from the ad hoc tribunals in relation to gender-based crimes. Judicial decisions
at the ICC have at times departed from existing jurisprudence, and misapplied established tests,
with the result that charges have not been included in summonses to appear, arrest warrants, or
confirmed in confirmation of charges proceedings. 2250 In issuing decisions, judges should include
legal reasoning, including explicit and detailed reference to legal authority relied upon.
The Presidency should consider organising a judicial seminar on the application of the
standards of proof required at the different stages of proceedings. This would ensure a more
consistent and universal approach by all ICC judges in each Division of Chambers.
2249 ‘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.
2250 See eg the decision on confirmation of charges in The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, in which
Pre-Trial Chamber II used the appropriate test for cumulative charging as set forth by the International Criminal Tribunal for
the former Yugoslavia Appeals Chamber in Prosecutor v. Delalic, but did not properly apply the test to the facts in this case; see
also Amicus Curiae Observations of the Women’s Initiatives for <strong>Gender</strong> Justice pursuant to Rule 103 of the Rules of Procedure
and Evidence, ICC-01/05-01/08-466. See also the decision on the issuance of Summonses to Appear in The Prosecutor v. Francis
Kirimi Muthaura, Muigai Uhuru Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-1, para 27, in which Pre-Trial Chamber
I considered forced circumcision not to be an act of a sexual nature, without further elaborating on its finding. 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.’ The Chamber’s limited reasoning and its denial of appeal on this point represents a problematic precedent for the
ICC’s interpretation of the law regarding gender-based crimes.
346