ACCEPTABILITY OF SEXUAL AND GENDER-BASED VIOLENCE COMMITTED IN SITUATIONS OF ARMED CONFLICT BEFORE. The application of the Rome Statute in its internal law 236 6.4 The Rome Statute applied in the internal laws of the Democratic Party.
STATEMENT OF PROBLEM
61 Of the 122 states party to the Rome Statute, 34 of these states are African states. 69 Thirteenth Ordinary Session of the African Union (1-3 July 2009) Conclusion of the Commission Report on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC) – Doc.
REASONS FOR CHOOSING THIS TOPIC AND AIMS OF THE STUDY
Implementation of the Rome Statute available at www.iccnow.org>..>Ratification and Implementation (accessed 4 February 2015). Analysis at the regional level was also based on the coherence of the Malabo Protocol in relation to SGBV in situations of armed conflict.
DEFINING TERMS RELEVANT TO THE STUDY
Definition of Sexual and Gender-Based Violence
Although gender-based violence is not exclusive to women and girls, it primarily affects them in all cultures. This thesis will thus adopt the typology of gender-based violence proposed by Jeanne Ward, as her definition includes not only violence against civilian women and girls, but also civilian men and boys who are targeted because of their gender.
Armed Conflicts
In addition, in the event that an internal armed conflict breaks out on the territory of a State, it may become international (or, depending on the circumstances, have an international character concurrently with an internal armed conflict) if (i) another State takes into conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict are acting on behalf of the other state.114. 111 UNSC 'Report of the Secretary-General on conflict-related sexual violence' at para 1 (13 March 2014). UNSC.
OBJECTIVES OF THE STUDY AND KEY QUESTIONS TO BE ASKED
Research questions
The final analysis will center on whether the ACJHPR will be better equipped than the ICC in understanding and prosecuting SGBV committed in armed conflict situations. Can the promulgation of the Rome Statute into the domestic laws of the DRC help bridge the impunity gap in the fight against SGBV during armed conflicts in Africa?
Research Methodology
Primary sources include materials such as the Rome Statute of the ICC, the Protocol on Amendments to the Protocol of the Statute of the African Court of Justice and Human Rights (Malabo Protocol), the DRC Constitution, Journal Officiel de la Republique Democratique du Congo, ICC Policy Paper on Sexual and Gender-Based Crimes and other ICC documents. Other primary sources include the ICTY and ICTR statutes, which paved the way for the creation of the ICC, and the subsequent decisions of these courts.
STRUCTURE OF THE THESIS This thesis contains seven chapters in all
Relevant cases and laws related to how judges have interpreted sexual and gender-based cases were also considered, along with articles relevant to this topic. Determining the accuracy of each secondary source was considered by cross-referencing it with other secondary and primary sources.
Secondary sources of information include in particular monograms relating to this area of law, which map how feminists sought to include crimes of the SGBV as crimes in themselves and classify them as war crimes, crimes against humanity and genocide, and the legal approach to prosecuting such crimes. Textbooks, magazine articles, internet material, reports from NGOs such as Human Rights Watch and Amnesty International, press releases from the Security Council and newspaper articles were also studied.
THE INTERNATIONAL MILITARY TRIBUNALS AT NUREMBERG AND IN THE FAR EAST
- The International Military Tribunal at Nuremberg
- The International Military Tribunal for the Far East (IMTFE)
175 Bassiouni is of the same opinion with regard to the International Military Tribunal for the Far East (IMTFE) that this could have been covered by Article 5(b) of its charter. Niarchos agrees that the tribunal did not receive evidence of the sexual atrocities involving the comfort women.
THE FOUR GENEVA CONVENTIONS OF 1949 AND 1977 ADDITIONAL PROTOCOLS
Thus criminal sexual assault, in both national and international law, is linked to the morality of the victim. Rape and the other sexual crimes mentioned in article 27(2) are not listed in article 147 of the Fourth Geneva Convention as crimes of 'serious offences'.
THE INTERNATIONAL CRIMINAL TRIBUNALS FOR FORMER YUGOSLAVIA AND RWANDA
- The Jurisdiction of the Statute for the International Criminal Tribunals for former Yugoslavia and Rwanda
- The application of Sexual and Gender-based Crimes before the International Criminal Tribunals for former Yugoslavia and Rwanda
The definition of genocide is taken verbatim from the Convention on the Prevention and Punishment of Genocide. See Askin 'Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Courts' at 113. Two of the three accused (Kunarac and Kovac) were convicted of slavery as crimes against humanity.
THE INTERNATIONAL CRIMINAL COURT
- The inclusion of gender in the Rome Statute
- Defining gender crimes in the Rome Statute
493 The Women's Caucus for Gender Justice at the ICC is a group of feminist and human rights women's organizations from all parts of the world. The full title of PrepCom is Preparatory Committee for the Establishment of an International Criminal Court. Mouthaan is of the opinion that crimes such as beating or electric shock to the genitals, forced nudity and sexual mutilation should also have been included in the Rome Statute.
INTRODUCTION
The Office of the Prosecutor (OTP)'s current strategic plan for the number of cases it will handle also gives an insight into how many cases the ICC will actually handle. With this in mind, this chapter examines the Prosecutor's discretionary powers and their application to admit situations and cases of SGBV committed in an armed conflict situation to the ICC. The Rome Statute, the policies and strategies adopted by the ICC and those cases where the prosecutor's decisions have influenced the admissibility of situations and cases concerning SGBCs are considered.
THE PROSECUTOR’S DISCRETIONARY POWERS IN BRINGING A CASE BEFORE THE INTERNATIONAL CRIMINAL COURT
- Triggering the International Criminal Court’s Jurisdiction: The Preliminary Examination of a Situation
- Factors taken into Account to Initiate an Investigation
- From Investigation to Case Stage
Thus, although the Prosecutor is independent of the ICC, the Pre-Trial Chamber serves as a check on the decision taken by the Prosecutor.576. Giuliano Turone 'Powers and Duties of the Prosecutor' in Antonio Cassese, Paola Gaeta, John RWD. Moreover, section 15(4) states that the matter must fall within the jurisdiction of the court.
THE APPLICATION OF THE PROSECUTOR’S DISCRETION RELATING TO SEXUAL AND GENDER-BASED CRIMES
- Avoiding Prosecuting Sexual and Gender-based Crimes
- Lack of Proper Investigation of Crimes Relating to SGBV
- Risk of Sexual and Gender-based Violence Charges being withdrawn where Evidence Supporting the Charges is Limited
- Impartiality
ICC – The Office of the Prosecutor of the International Criminal Court opens its first investigation, 23 Jun 2004 available at. FIDH 'The Office of the Prosecutor of the International Criminal Court nine years later: Analysis of the prosecution strategy and policies of the Office of the Prosecutor recommendations to the following. FIDH 'The Office of the Prosecutor of the International Criminal Court nine years later' at 12.
RECTIFYING PAST MISTAKES IN THE INVESTIGATION AND PROSECUTION OF SEXUAL AND GENDER-BASED CRIMES
- Incorporating a Gender Perspective in the Work of the International Criminal Court
- Effective Investigations of Sexual and Gender-based Crimes
- Bringing charges for Sexual and Gender-based Crimes
Throughout the policy paper, OTP declares its commitment to applying a gender perspective and analysis to all areas of its work. The OTP admits that SGBCs are some of the most difficult crimes to investigate and prosecute given the challenges specific to these crimes. 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.
CONCLUSION
This will create an impunity gap in the number and range of perpetrators the ICC can try. USE OF SEXUAL AND GENDER-BASED VIOLENCE COMMITTED IN ARMED CONFLICT SITUATIONS BEFORE THE ICC 4.1 INTRODUCTION. This chapter begins in the first section by addressing the cases brought before the ICC concerning SGBV that took place in the Democratic Republic of Congo (DRC).
THE DEMOCRATIC REPUBLIC OF CONGO CASES
- Thomas Lubanga Dyilo’s Case
- Sentencing of Lubanga
- A lost cause in obtaining reparation for victims of SGBV
- Germain Katanga and Mathieu Ngudjolo Chui’s Case
- The confirmation hearing and severance of trial
- Mathieu Ngudjolo Chui Trial
- Germain Katanga trial
- Germain Katanga’s sentencing
- The need to investigate and formulate cases properly
- Bosco Ntaganda Case
752 Prosecutor v Thomas Lubanga Dyila 'Decision on sentence under Article 76 of the Statute' at para 67. Once the charges have been confirmed and before the trial begins, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notifying the accused, amend the charge. After the start of the main hearing, the prosecutor can withdraw the charge with the permission of the judicial panel.
THE UGANDAN CASES
- Dominic Ongwen Case
Pre-Trial Chamber II had recommended to the Presidency that the hearing be held in Uganda, in order to bring the proceedings closer to the communities affected by Ongwen's acts, and also as it would contribute to a better perception of the ICC on the African continent. .889. 894 See Office of the President, Republic of Uganda, "Government Statement on the Dominic Ongwen Case". The rejection of the charges should not be done on the grounds that it is the 'possible legal characterization of the relevant facts.
THE CENTRAL AFRICAN REPUBLIC CASE
- Jean-Pierre Bemba Case
- The Prosecution’s charges against Bemba
- The Confirmation of Charges Hearing
- The Prosecutor’s appeal against the Pre-Trial Chamber’s decision
- The Trial Chamber’s Judgment
- Short lived victory, the reversal of Bemba’s conviction
This is not a question of the Appeals Chamber substituting its own factual findings for those found in the Trial Chamber. The Trial Chamber's decision must be based on its assessment of the evidence and the entire procedure. Judgment on the prosecutor's appeal of the decision of the preliminary investigation department I, point 39.
CONCLUSION
Prosecutors have been particularly unsuccessful in linking the accused to the alleged culpability, especially when the accused is not the direct perpetrator of the crime. There is a need for equitable representation of judges and justices at the ICC to ensure sensitivity to gender issues and the application of law in this regard. The recent decision of the Appeals Chamber in Bemba regarding their interpretation of the Rome Statute has made it difficult to predict how other chambers may determine the law.
THE AFRICAN UNION’S RESPONSE IN THE PROSECUTION OF SEXUAL AND GENDER-BASED VIOLENCE IN ARMED CONFLICT SITUATIONS AT
INTRODUCTION
Assessing the AU's response to the prosecution of SGBCs in situations of armed conflict at the regional level is to determine whether the proposed African Court of Justice and Human and Peoples' Rights (ACJHPR) will be a useful tool to bridging the gap of impunity for SGBV committed on the continent in situations of armed conflict. At the state level, this includes consideration of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (also known as the Maputo Protocol or African Women's Protocol). This would allow the drafters of the Malabo Protocol to consider amendments to the protocol to facilitate the prosecution of these crimes at the regional level.
REGIONAL INSTRUMENTS OF THE AFRICAN UNION RELATING TO SEXUAL AND GENDER-BASED CRIMES COMMITTED IN ARMED
- The Constitutive Act of the African Union
- The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
The African Charter on Human and Peoples' Rights (Banjul Charter, ACHPR) informed the implementation of the protocol.1101. 1111 Statute of the African Court of Justice and Human and People's Rights, Article 7 replaces Article 17, Statute of the African Court of Justice and Human Rights. Interpretation and implementation of the African Charter, the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, or any other legal instrument relating to human rights, ratified by the States Parties concerned;'.
THE AFRICAN COURT OF JUSTICE AND HUMAN AND PEOPLES’ RIGHTS The Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and
- The genesis leading to the prosecution of international crimes by the African Court of Justice and Human and Peoples’ Rights
- Crimes within the jurisdiction of the International Criminal Law Section of The African Court of Justice and Human and Peoples’ Rights
July 2005, Sirte, Libya, Decision on the merger of the African Court of Human and Peoples' Rights and the Court of Justice of the African Union – Assembly/AU/6(v) (The Assembly decides that a draft legal instrument relating to the establishment of the merger court, consisting of the Court of Human Rights and the Court of Justice, should be finalized for consideration at the next regular sessions of the Executive Council). 1130 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, art. 1. See also Deidre Willmott 'Removing the distinction between international and non-international armed conflict in the Rome Statute of the International Criminal Court' ( 2004) 5 Melbourne Journal of International Law 1 at 3.
