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the poles of brutal power politics on the one hand and law and human rights on the other’.678 If there is to be accountability for crimes of SGBV, the ICC has to make a choice of whom it will investigate and prosecute.
In its recent Policy Paper on Case Selection and Prioritisation, the OTP states that it ‘shall apply its methods and criteria equally to all persons without any distinction based on official capacity pursuant to article 27(1) or other grounds referred to in article 21(3)’.679 Yet, aside from the OTP’s statement that it had not received any complaints against the UPDF, the OTP has not investigated alleged crimes against the government forces in the DRC and CAR, based on the purported knowledge that these states prosecute their own government forces. The OTP goes on to state in its policy paper that it would ‘not seek to create the appearance of parity within a situation between rival parties by selecting cases that would not otherwise meet the criteria set out’ in its paper.680 This statement indicates that the OTP realises the difficulty in investigating high-placed officials where a state government is unlikely to allow them to investigate crimes allegedly committed on their territory by their officials. As scholars have noted, in the self- referral cases the expectation is that the Prosecutor would not investigate government officials, but those who were against the government.681 The pertinent question for the Prosecutor is whether he should solely pursue the rebel leaders as the cooperation of states makes a difference as to what evidence he obtains. It also means at least the prosecution of some perpetrators, and victims of the alleged crimes, which include SGBCs, would feel that justice has been done.
3.4 RECTIFYING PAST MISTAKES IN THE INVESTIGATION AND
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Paper on Sexual and Gender-based Crimes, setting out the OTP’s policy relating to SGBCs with the purpose of guiding the OTP on matters relating to SGBCs.683 The policy paper ‘is based on the Statute, the Rules, the Regulations of the Court, the Regulations of the Office, the Office’s Prosecutorial Strategies and other related policy documents’.684 It also seeks to address the past mistakes made by the OTP in its first few years of investigating and prosecuting SGBCs685 caused by the ICCs lack of defined goals and priorities in its selective decisions.686 This section will consider how the OTP has sought to rectify these mistakes and its improvement in its investigation and prosecution of SGBCs.
3.4.1 Incorporating a Gender Perspective in the Work of the International Criminal Court.
Throughout the Policy Paper, the OTP states its commitment to applying a gender perspective and analysis in all areas of its work. It aims to do this from the preliminary examination stage through to the prosecution of SGBCs and reparations proceedings.687 The OTP has made the integration of gender analysis one of its core strategic goals, as well as focus on SGBCs and those crimes committed against children.688
The Policy Paper for example provides that:
All staff from the various Divisions involved in the investigation shall be responsible for integrating a gender perspective within the investigations, and for ensuring that sexual and gender-based crimes are thoroughly addressed at each stage of the investigative process.689
and gender-based crimes: reflections from the Office of the Prosecutor’ 24 August 2015 available at https://www.hagueacademy.nl/.../Opening-keynote-speech-The-Hague-Academy-of-International-Law-Advanced- Course-on-International-... (accessed 10 November 2016).
683 Idem at para 7.
684 Idem at para 10.
685 Ibid.
686 deGuzman ‘Choosing to prosecute’ at 267 at 269 and 274 (stating that the ‘ICC’s inability to justify its selection decisions by reference to a coherent theory of its goals and priorities undermines its efforts to build legitimacy).
687 ICC, Policy Paper on Sexual and Gender-Based Crimes at Executive summary para 4 and para 14.
688 Idem at paras 5 and 37. ICC-OTP, Strategic Plan June 2012 – 2015, 11 October 2013, Strategic goal 3 which provides to ‘enhance the integration of a gender perspective in all areas of our work and continue to pay particular attention to sexual and gender-based crimes and crimes against children’ at 17 and 27 available at https://www.icc- cpi.int/iccdocs/otp/OTP-Strategic-Plan-2013.pdfChached (accessed 11 November 2016). ICC-OTP, Strategic Plan|
2016-2018, 6 July 2015, Strategic goal 2 at 6, 11 and 17 available at https://www.icc-cpi.int/.../070715- OTP_Strategic_Plan_2016-2018.pdf (accessed 11 November 2016).
689 Idem at para 53. Paragraph 14 provides that the OTP will ‘positively advocate for the inclusion of sexual and gender-based crimes and a gender perspective in litigation before the chambers’ pursuant to article 21(3) of the Rome Statute. Paragraph 20 provides that the OTP ‘will apply a gender analysis to all of the crimes within its
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In applying a gender perspective throughout its work, right from when it triggered its jurisdiction, the OTP attempts to ensure that the mistakes, which occurred in the Lubanga case, do not reoccur, in which case it would have had sufficient evidence to bring charges against perpetrators of SGBCs. The OTP would therefore be in a position to ‘react promptly to [an]
upsurge of violence’,690 including SGBV.
3.4.2 Effective Investigations of Sexual and Gender-based Crimes
The OTP admits that SGBCs are some of the most difficult crimes to investigate and prosecute, given the challenges specific to these crimes. These challenges include:
The under – or non-reporting of sexual violence owing to societal, cultural, or religious factors, stigma for victims of sexual and gender-based crimes, limited domestic investigations, and the associated lack of readily available evidence; lack of forensic or other documentary evidence owing inter alia, to the passage of time; and inadequate or limited support services at national level.’691
The OTP has adopted specific measures to address these problems, for instance not relying solely on witness statements, but also obtaining other evidence such as documentary and forensic evidence.692 Such evidence would be collected to strengthen its case, and by doing so would overcome the problem faced in the Katanga and Ngudjulo cases in which the Pre-Trial Chamber refused to allow the Prosecutor to introduce two witnesses’ statements until it was satisfied about the witnesses’ security.693 This would entail improving the Prosecutor’s resources to enable resort to high technical means required to obtain such evidence.694
By the time the OTP starts investigating SGBCs, the evidence relating to these crimes may appear unreliable at trial due to the time lag between when the SGBV occurred and the collection of evidence. The policy paper seeks to address this point by taking into account the circumstances in which the evidence emerged when a SGBC first occurred, and how reliable it jurisdiction.’ Paragraph 29 provides that the OTP ‘will apply a gender analysis to the contextual elements of the crimes’ which fall under the subject-matter jurisdiction of the ICC, as well as ‘the elements of the underlying acts.’
690 Idem at para 47.
691 Idem at para 53.
692 Idem at para 51.
693 Prosecutor v Germain Katanga & Mathieu Ngudjolo Chui ‘Decision on evidentiary scope of the confirmation hearing’ at para 39. Sacouto and Cleary ‘The importance of effective investigation’ at 342. Sacouto ‘International law weekend’ at 270-271.
694 In its Strategic Plan, the OTP has pointed to the importance of having an increase in its resources for it to perform high quality preliminary examinations, investigations and prosecutions. ICC-OTP, Strategic Plan June 2012 – 2015 at 6 and 14-15. ICC-OTP, Strategic Plan| 2016-2018, Strategic goal 2 at 9.
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might be by the time the OTP investigated the incident. The policy paper provides for this by stating that the OTP will:
. . . react promptly to upsurges of violence, including sexual and gender-based crimes, by reinforcing early interaction with States and international and non-governmental organisations, in order to verify information on alleged crimes, to encourage genuine national proceedings and to prevent the recurrence of crimes.695
The OTP will therefore, engage the community networks and contacts and enlist their cooperation, especially that of first responders to SGBCs.696 In doing so, the OTP stands a better chance of obtaining reliable evidence relating to these crimes, as it is these first responders who gather the information when the evidence is still fresh. In its 2016 to 2018 Strategic Plan, the OTP stated that it had entered discussions with various first responders, such as NGOs, as to how each could support the other in their work.697 The OTP would need to educate these first responders on to how to obtain admissible evidence. The publication of its policy papers, such as its SGBC Policy Paper, has helped promote transparency and clarity in the hope that the OTP and the other actors will cooperate with the policy.698
Although the OTP maintains its focused approach of investigating crimes within its jurisdiction, it has adopted an ‘in-depth, open ended’ method of investigating these crimes,699 so that the OTP will be able to obtain more evidence from various sources, thereby meeting a higher evidentiary threshold. This method of investigation will assist the OTP in applying various case hypotheses, thus strengthening its decision-making in cases it prosecutes.700 It also means that SGBCs will be considered, especially as the OTP now applies a gendered analysis to crimes within its jurisdiction.701 Thus, the OTP will investigate allegations of SGBCs thoroughly, since a wide range of alleged crimes and incidents would be investigated.
3.4.3 Bringing charges for Sexual and Gender-based Crimes.
In bringing charges, the OTP will give attention to crimes, which are under-prosecuted, including SGBCs such as rape.702 The OTP will bring charges for SGBCs where there is sufficient
695 ICC, Policy Paper on Sexual and Gender-Based Crimes at para 55.
696 Idem at paras 39 and 47.
697 ICC-OTP, Strategic Plan| 2016-2018 at 12-13.
698 ICC, Policy Paper on Sexual and Gender-Based Crimes at para 12.
699 Idem at para 52. ICC-OTP, Strategic Plan June 2012 – 2015 at 6.
700 Ibid. Ibid.
701 Idem at paras 20 and 59.
702 ICC-OTP, Policy Paper on Case Selection and Prioritisation at para 46.
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evidence that these crimes have been committed.703 The OTP will also bring charges for SGBV where the crimes form acts of other violence such as rape, which is charged as torture or genocide.704 By doing so, the OTP is ensuring that crimes of SGBV are charged and prosecuted wherever possible, thereby ensuring that perpetrators of SGBV are brought to book. As will be seen in chapter 4, although the OTP brought cumulative charges in the Bemba case, the Pre-trial Chamber rejected the cumulative-charging approach. This suggests that the Prosecutor will still encounter problems at trial relating to SGBCs where the judges are not convinced of the propriety of the reasons for which why such charges are brought before the court.
The OTP is also prepared to change its strategy as to whom it would investigate and prosecute in order to carry out the Rome Statute’s object and purpose. It acknowledges that there will be instances when it will be difficult for it to investigate those most responsible for the most serious crimes, which include SGBCs. In order to bridge this impunity gap, the OTP would investigate and prosecute ‘middle or even low ranking officers or individuals’.705 Victims would also welcome the prosecution of these classes of perpetrators, since they would be the actual perpetrators of the SGBV against them. Seeing middle or even low ranking officers or individuals convicted and imprisoned would mean that the victims would see them removed from the community where they would have been constant reminders of the harm committed on them.706
In addition to this change of strategy the OTP would bring to court cases which were ready for trial, taking its cue from judges such as Judge Hans-Peter Kaul to ensure that cases be
‘as trial ready as possible’ by confirmation of hearing stage. 707 In a dissenting opinion, Judge Kaul advised the Prosecutor to complete investigations ‘at the time of the hearing . . . unless the Prosecutor justifies investigations after confirmation with compelling reasons’.708 An example of this is evidence that becomes available after the confirmation hearing for the first time during an
703 ICC, Policy Paper on Sexual and Gender-Based Crimes at para 71.
704 Idem at para72.
705 Idem at para 23. ICC-OTP, Strategic Plan June 2012 – 2015 at 6.
706 Cecile Aptel ‘Prosecutorial discretion at the International Criminal Court and victim’s rights: Narrowing the impunity gap’ (2012) 10 Journal of International Criminal Justice 1357 at 1370.
707 ICC-OTP, Strategic Plan| 2016-2018, Strategic goal 2 at 15.
708 Dissenting Opinion of Judge Hans-Peter Kaul, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali ‘Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute’ (23 January 2012) ICC-01/09-02/11 para 57.
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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