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ongoing conflict.709 As stated by Judge Kaul, obtaining evidence before trial would assist the OTP from the danger of the Pre-Trial Chamber refusing to commit a suspect for trial due to inadequate evidence.710 The OTP states that where this is ‘not possible when the Prosecutor applies for a warrant of arrest or summons to appear . . . the Office will only proceed with the application if there are sufficient prospects to further collect evidence to be trial-ready within a reasonable time frame’.711 By being as trial ready as possible by the confirmation of hearing stage, the length of its trials would be reduced which would help reduce costs. In the Mathieu Ngudjolo trial for instance, which resulted in an acquittal, the Chamber heard 54 witnesses and sat for 265 days and 643 exhibits were presented in evidence.712
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SGBC to trial. Whilst it would be impossible to meet the expectations of all SGBV victims, the Prosecutor still needs to prosecute more cases relating to SGBV and obtain convictions. This is necessary so that perpetrators of SGBCs may come to realise that crimes are ‘themost serious crimes of concern to the international community as a whole’ which ‘must not go unpunished’.713 At the same time as the Prosecutor’s caseload increases, states would need to take up their responsibility and adapt their legislation to prosecute SGBCs themselves. The DRC, for instance, recently implemented the Rome Statute as part of its law, 14 years after the ICC was established. Many other states which are experiencing SGBV on a daily basis must first take active steps to bring cases relating to SGBCs before its courts. Such issues will be dealt with in chapter six.
A major area of concern, which this chapter evidences, is that despite the publication of the Policy Paper on Sexual and Gender-Based Crimes attempting to bridge the impunity gap for SGBCs, the ICC will still face the challenge of trying to prosecute heads of state and senior government officials who are guilty of committing SGBCs in armed conflict situations. This will create an impunity gap in the number and range of perpetrators the ICC can try. Although the 2016 Policy Paper on Case Selection and Prioritisation is in line with article 27 of the Rome Statute, it will be difficult for the Prosecutor to prosecute and obtain convictions against heads of state and senior government officials. Given that the ICC does not have its own independent police force, states are unlikely to cooperate with the ICC in the arrest and surrender of these senior state actors, as witnessed in the case against Al-Bashir. In addition, an African state could decide not to cooperate with the ICC in the investigation and prosecution of SGBCs which were committed on its territory where its official is the defendant in the ICC case. The ICC cannot avoid being caught up in the politics of that state if it decides to carry out an investigation in its territory. The ICC should prosecute perpetrators of SGBCs, other than heads of state or senior governmental officials, if it seeks the cooperation of that state in its investigation and prosecution of that case. As chapter 5 will show, the African Union (AU) granted heads of state and their senior government officials’ immunity at the regional level. The current dispute between the ICC and the AU on immunity for these sets of people means that it is unlikely that many African states will be willing to have this set of perpetrators prosecuted at the international level.
713 Rome Statute, Preamble.
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CHAPTER 4
THE ADMISSIBILITY OF SEXUAL AND GENDER-BASED VIOLENCE COMMITTED IN ARMED CONFLICT SITUATIONS BEFORE THE ICC 4.1 INTRODUCTION
Despite promising provisions in the Rome Statute relating to the investigation and prosecution of sexual and gender-based violence (SGBV) committed during armed conflict situations,714 the ICC has not since its coming into force in 2002 successfully obtained a conviction for sexual and gender-based crimes (SGBCs). The first few cases before the ICC relating to SGBV, which occurred during armed conflict situations, have highlighted the difficulties involved in obtaining a conviction for these crimes. Such challenges are not peculiar to ICC cases. The International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) faced similar problems, with prosecutors omitting charges for these crimes, drafting improper charges and judges requiring a high evidential standard for convictions.715 The Appeals Chamber decision acquitting Bemba of all charges, including rape, is a recent example of the high evidential standard required by the ICC.716 In addition, the conflict between the Office of the Prosecutor (OTP) and the ICC Chambers on the interpretation of certain provisions in the Rome Statute has affected whether or not certain SGBV charges proceed to trial.717 Although
714 See for example article 36(8) (b) of the Rome Statute which provides for judges to have ‘legal expertise on specific issues relating [sic] to violence against women and children.’ See also article 54(1)(b) of the Rome Statute which states that the Prosecutor should ‘take appropriate measures to ensure the effective investigation and prosecution of crimes within the ICCs jurisdiction [sic] and in doing so … take into account the nature of the crime, in particular where it involves sexual violence, gender violence and children.’
715 Susana Sacouto and Katherine Cleary ‘The importance of effective investigation of sexual violence and gender- based crimes at the International Criminal Court’ (2009) 17 American University Journal of Gender, Social Policy and the Law 337 at 348-358. Valerie Oosterveld ‘Gender-sensitive justice and the International Criminal Tribunal for Rwanda: Lessons learned for the International Criminal Court’ available at
www.peacewomen.org/assets/file/PWandUN/.../itrc_oosterveld_2005.pdf (accessed 13 March 2016) (stating that the negotiators of the Rome Statute realised the importance of including gender-sensitive articles relating to investigations and prosecutions of SGBC from the negative experiences of the ICTR.
716 See Statement of ICC Prosecutor, Fatou Bensouda, on the recent judgment of the ICC Appeals Chamber acquitting Mr Jean-Pierre Bemba Gombo available at https://www.icc-cpi.int/Pages/item.aspx?name=180613-OTP- stat (accessed 20 July 2018) (stating that ‘the level of detail that the Prosecution may now be required to include in the charges may render it difficult to prosecute future cases entailing extensive campaigns of victimisation.’ See Chapter 3, section 3.1 already referring to this statement.
717 Virginia C Lindsay ‘A review of International Criminal Court proceedings under Part V of the Rome Statute (investigation and prosecution) and proposals for amendments’ (2010) Revue Quebecoise de Droit International 165 at 189 referring to Matthew Happold, ‘Prosecutor v Thomas Lubanga, Decision of Pre-Trial Chamber I of the International Criminal Court, 29 January 2007’ (2007) 56 International and Comparatively Law Quarterly at 713 (stating that ‘it is also evident that there is a struggle between the Office of the Prosecutor and Chambers over the extent to which each controls proceedings before the Court.’). Also see Dov Jacobs ‘The ICC Katanga Judgment: A
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scholars welcomed the fact that the Rome Statute makes provision for fair representation of female and male judges,718 the representation of female judges in the ICC has not necessarily helped overcome the problems faced in obtaining a successful prosecution of these crimes.
Whilst chapter 3 considered the prosecutor’s discretionary powers relating to SGBV, this chapter examines cases relating to SGBV in armed conflict situations which have come before the ICC. The purpose of such consideration is to highlight the recognition that SGBV-related crimes in international treaties are still among the most difficult crimes to prosecute.719 After the Lubanga case the prosecution dragged its heels in prosecuting such crimes, and when it did, it faltered in obtaining substantial evidence to prove its case. At the same time, the judges were not comfortable ‘to hold individuals accountable for sex crimes unless they [were] the physical perpetrators, they were present when crimes were committed, or they [could] be linked to evidence encouraging the crimes.’720
This chapter commences in the first section, by considering those cases before the ICC relating to SGBV which occurred in the Democratic Republic of Congo (DRC). The next section considers a Ugandan case and the section thereafter on the Central African Republic (CAR) case.
commentary (part 2) Regulation 55 and the modes of liability’ available at https://dovjacobs.com/.../the-icc-katanga- judgment-a-commentary-part-2-regulation-5... (accessed 13 March 2016). With regard to Regulation 55 of the Regulations of the Court Jacobs argues that the judges’ adoption of Regulation 55 of the Regulations of the Court adds a ‘new element to the Rome Statute’s framework on the amendment of charges,’ thus giving judges’ proprio motu powers to amend charges at various stages of proceedings.
718 Rome Statute, art 36(8)(a)(iii) provides that ‘[t]he State Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for … [a] fair representation of female and male judges.’ There are currently six female judges and 12 male judges at the ICC. This number excludes Judge Sylvia Steiner, who has served her term as a judge but will be staying to complete a trial. Current Judges – Biographical Notes available at https://www.icc/.../the%20judges/Pages/judges.aspx (accessed 13 March 2016). Cherie Booth and Max Du Plessis
‘The International Criminal Court and victims of sexual violence,’ (2005) 18 South African Journal of Criminal Justice 241at 248 (where the authors state that ‘states are finally taking seriously the idea of a ‘legitimate’
international judiciary. International justice must be seen to be fair and representative of international society as a whole, and the Rome Statute has thankfully set a new standard among international courts, which have tolerated for too long a time an under-representation, or all too often a complete absence, of female judges.’). Kelly Askin
‘Katanga judgment underlines need for stronger ICC focus on sexual violence’ available at www.ijmonitor.org/.../katanga-judgment-underlines-need-for-stronger-icc-focus-on-sexual violence... (accessed 25 July 2016) (stating that ‘many of the gains we have seen, in the recognition of various forms of sexual violence as serious violations of international laws, are due in no small part to having more women in positions of power as investigators, prosecutors and judges in the international tribunals, as well the impact of an effectively organised caucus of women’s groups who have pushed for changes’).
719 Margot Wallstrom for example, a former Special Representative on sexual violence in conflict has pointed out that it is not because the laws are inadequate that women are not being protected from sexual violence, but because the laws are inadequately enforced. UN News Centre ‘Tackling Sexual Violence must include prevention, ending impunity – UN Official’ available at www.un.org/apps/news/story.asp?NewsID=34502 (accessed 15 March 2016).
720 Askin ‘Katanga judgment underlines need for stronger ICC focus on sexual violence.’
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The section also considers how the Appeals Chamber decision in the Bemba case affects the prosecution of SGBC’s committed in armed conflicts.