Special Issue E-letter August 2009

In this issue

Central African Republic
Amicus curiae filing by the Women's Initiatives for Gender Justice in the case against Jean-Pierre Bemba Gombo

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Dear Friends,

Welcome to a Special Issue of Legal Eye on the ICC, a regular e-letter from the Women's Initiatives for Gender Justice. In the Legal Eye you will find summaries and gender analysis of judicial decisions and other legal developments at the International Criminal Court (ICC), and discussion of legal issues arising from victims' participation before the Court, particularly as these issues relate to the prosecution of gender-based crimes in each of the Situations under investigation by the ICC. The Court currently has cases relating to the conflicts in Uganda, the Democratic Republic of the Congo (DRC), Darfur, Sudan and the Central African Republic (CAR).

In addition to the Legal Eye on the ICC we also produce Women's Voices, a monthly e-letter providing updates and analysis on political developments, strategies for the pursuit of justice, the status of peace talks, and reconciliation efforts from the perspective of women's rights activists from the four conflict situations.

With both online e-letters we will also update you about the programmes, legal and political advocacy, campaigns, events, and publications of the Women's Initiatives.

More information about the work of Women's Initiatives for Gender Justice and previous issues of Women's Voices and the Legal Eye can be found on our website at www.iccwomen.org.

Purpose of this Special Issue

In this Special Issue, we report on the Women's Initiatives' 31 July filing of amicus curiae observations to the Court in the case of Prosecutor v. Bemba, in which we argued that the Pre-Trial Chamber's decision to dismiss two charges resulted in excluding the ability to prosecute acts of sexual violence that are not encompassed by the narrower charge of rape. This is the Women's Initiatives' fourth filing before the ICC under Rule 103 and our first amicus brief. The Women's Initiatives is one of only five organisations or bodies to be granted amicus curiae status before the Court and the only international women's rights organisation to be granted such status.

The Women's Initiatives' amicus curiae filing can be found on our website (click here to download file) or the ICC website.

CAR :: Amicus Curiae filing by the Women's Initiatives for Gender Justice in the case against Jean-Pierre Bemba Gombo

Background

In the March 2009 issue of the Legal Eye on the ICC, we reported on the Confirmation Hearing of Jean-Pierre Bemba Gombo (Bemba), alleged President and Commander-in-chief of the Mouvement de Libération du Congo. In the May 2009 issue we reported on the adjournment by the Pre-Trial Chamber of those confirmation proceedings, in order to allow the Prosecutor time to submit an amended document containing the charges (Amended DCC), addressing what the Chamber found was a defect in the mode of liability alleged. In the July issue we analysed the 15 June 2009 decision by Pre-Trial Chamber II to confirm the charges against Bemba, including its decision not to confirm two charges based on acts of rape — torture as a crime against humanity and outrages upon personal dignity as a war crime — because, it reasoned, these counts were cumulative to the charges of rape and therefore prejudicial to the rights of the accused. A brief summary of the Confirmation Decision and subsequent procedural history are provided below, followed by a summary of the amicus curiae observations filed by the Women's Initiatives.

Pre-Trial Chamber II's Confirmation Decision

As reported in the July issue of the Legal Eye, the Pre-Trial Chamber II (the 'Chamber') delivered its 'Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo'¹ (the 'Confirmation Decision') on 15 June 2009. The Prosecutor had presented charges against Bemba for crimes against humanity of murder, rape and torture, pursuant to Article 7 of the Statute and the war crimes of murder, torture, rape, outrages upon personal dignity and pillaging, pursuant to Article 8 of the Statute.²

The Chamber confirmed Counts 1 and 2 of the Amended DCC, rape as a Crime Against Humanity and rape as a War Crime, but it declined to confirm some charges on the reasoning that the Prosecutor had improperly engaged in the practice of cumulative charging, which could be prejudicial to the rights of the Defence. The charges not confirmed were:

1. Torture as a Crime Against Humanity under Article 7(1)(f) [Count 3], reasoning that the acts of torture were fully subsumed by the count of rape as a crime against humanity, as the charge of torture was based on acts of rape.
2. Torture as a War Crime under Article 8(2)(c)(i) [Count 4], on the basis that there was insufficient evidence in the Amended DCC regarding the necessary specific intent of the perpetrators which would characterise the alleged acts as torture rather than rape.
3. Outrages upon personal dignity as a War Crime under Article 8 (2)(c)(ii) [Count 5], holding that this charge was fully subsumed by the count of rape as a war crime, as the charge arose out of acts surrounding rape.

According to the Chamber, because the charges of torture and outrages upon personal dignity arose from the same facts and circumstances as the charges of rape, these two crimes must possess a distinct legal element to the crime of rape in order to pass the cumulative charging test. After examining the elements of rape and torture, the Chamber averred that

the specific material elements of the act of torture, namely severe pain and suffering and control by the perpetrator over the person, are also the inherent specific material elements of the act of rape. However, the act of rape requires the additional specific material element of penetration, which makes it the most appropriate legal characterisation in this case.³

Similarly, it found that the charge of rape as a war crime was more appropriate than the charge of outrages upon personal dignity because the facts underlying this charge 'reflect in essence the constitutive elements of force or coercion in the crime of rape, characterising this conduct, in the first place, as an act of rape'.⁴

As a further rationale to support the confirmation of the charge of rape under Counts 1 and 2, the Chamber recalled that Regulation 55 permitted a Trial Chamber to 're-characterise a crime to give it the most appropriate legal characterisation', and thus disallowed the Prosecutor's approach to cumulative charging, stating that pleaded otherwise, the Defence might have to confront 'all possible legal characterisations'.⁵ Finally, the Chamber cited to an insufficiency of evidence or imprecise pleading in the Prosecution's Amended DCC to support charges of torture and outrages upon personal dignity that resided upon conduct other than direct rape.

Read more about the Confirmation Decision in the July 2009 issue of Legal Eye.

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Prosecutor's request for leave to appeal the Confirmation Decision

On 22 June 2009, the Prosecutor filed its 'Application for leave to Appeal the Decision Pursuant to Article 61(7)(a) and (b) on the Charges against Jean-Pierre Bemba Gombo'.⁶ The Prosecution moved to appeal the Chamber's denial of confirmation of the charges of torture and outrages upon personal dignity due to the Chamber's holding on cumulative charging and the Chamber's finding that there was insufficient pre-trial notice to the Defence of the charges and of the supporting facts that resulted in the dismissal of Counts 3, 4, and 5.

On 26 June 2009, the Office of the Public Counsel for Victims (OPCV) filed their Response to the Confirmation Decision⁷ and underscored its support for the Prosecutor's Application. The Principal Counsel argued that the manner in which crimes are charged statutorily lies within the discretion of the Prosecutor. The Response stated that the Chamber acted beyond its competence and effectively usurped the Prosecutor's discretion when it failed to confirm the charges in the Amended DCC that it deemed cumulative. The Response also challenged the Chamber's restricted recognition of victims of sexual violence as solely victims when they are directly raped, and not when they are otherwise tortured, or subjected to outrages upon their personal dignity.

On 9 July 2009, the Defence respectfully informed the Chamber that it would file a response to the Prosecutor's Application after the French translation of the Confirmation Decision and the Prosecutor's Application had been completed.⁸

Read the Prosecutor's Application for Leave to Appeal the Confirmation Decision: http://www.icc-cpi.int/NR/exeres/6B7AC1C9-2B3E-4F7D-8EA9-406FDC887C6F.htm

Read the OPCV's Response to the Confirmation Decision: http://www.icc-cpi.int/NR/exeres/1D221DDE-7525-468A-A758-88BAB6040E86.htm

Read the Defence's Response to the Prosecution's Application for Leave to Appeal: http://www.icc-cpi.int/NR/exeres/A17E4FAE-44FE-4507-8629-D180D9CCE25D.htm

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Women's Initiatives' request for leave to file amicus curiae observations

On 13 July 2009, the Women's Initiatives for Gender Justice filed a 'Request for leave to submit Amicus Curiae observations pursuant to Rule 103 of the Rules of Procedure and Evidence'.⁹ The Women's Initiatives proposed to brief the Court on cumulative charging in light of the due process rights of the accused and cumulative charging in light of Article 21 of the Rome Statute, both issues of first impression before the ICC and the Chamber.

The Women’s Initiatives request for leave can be found here: http://www.icc-cpi.int/NR/exeres/2EBBC510-BEC4-478B-BB8C-4872EBB43CB8.htm

Pre-Trial Chamber II grants Women's Initiatives' request for leave to file

On 17 July 2009, Judge Ekaterina Trendafilova, Single Judge of Pre-Trial Chamber II, granted leave to the Women's Initiatives for Gender Justice to file observations as amicus curiae under Rule 103.¹⁰ The Single Judge noted that 'the proposed amicus curiae brief tends to provide legal information that the Chamber may find useful in the context of the present case' and that granting the request is 'both desirable and appropriate for the proper determination of the case', therefore meeting the requirements for Rule 103.¹¹ The Single Judge invited the Prosecution and Defence to file responses within 10 days of the submission of the amicus observations.

On 14 July 2009, the Defence filed a request to submit a response to the amicus curiae brief of the Women's Initiatives after it had received a French translation of the Confirmation Decision and the Prosecution's Appeal of the Decision.¹²

On July 21, the Office for the Public Council of Victims (OPCV) sought leave of the Pre-Trial Chamber to respond to the amicus curiae submission of the Women's Initiatives.¹³ On 24 July, Single Judge Hans-Peter Kaul denied the OPCV's request.¹⁴ According to the Single Judge, victims have the right to provide written submissions only where the Court is satisfied that they have proven in their application that their interests are affected by the issue under examination and the Chamber finds the submissions appropriate. In the present case, the OPCV did not provide sufficient facts to prove to the Single Judge that the personal interests of the victims are affected. Moreover, the OPCV has had an opportunity to provide its observations on the Prosecutor's request for leave to appeal the Confirmation Decision. The Single Judge found that this prior submission provided 'sufficient information' for the Pre-Trial Chamber to make its decision on whether to grant the Prosecution's request.¹⁵

Read the decision granting leave to the Women's Initiatives to file: http://www.icc-cpi.int/NR/exeres/E39CD218-77C7-4017-A62C-0C2194ECE879.htm

Read the Response of the Defence: http://www.icc-cpi.int/NR/exeres/9747B0D8-CA11-4947-9ED2-8133BAB6C7C9.htm

Read the OPCV request for leave to respond: http://www.icc-cpi.int/NR/exeres/82175A8F-E337-4686-B7D5-0397DDAC789B.htm

Read Judge Kaul's decision on the OPCV request: http://www.icc-cpi.int/NR/exeres/579C8B80-BD63-44A8-BD15-7091A8A540BD.htm

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Women's Initiatives files amicus curiae observations

The Women's Initiatives for Gender Justice filed its amicus brief on 31 July.¹⁶ The brief addresses the issue of cumulative charging as an issue of general interest to the Court and in reference to this specific case. As many of the issues raised are de novo and will impact future cases before the Court, including but not limited to issues surrounding gender-based crimes, the brief argues that they are of significant importance to the Appeals Chamber to warrant review pursuant to Article 82(1)(d) of the Rome Statute. According to this provision, a request for leave to appeal may be granted if the decision in question 'involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings'.

First, the brief argues that the Pre-Trial Chamber improperly dismissed crimes of torture and outrages upon personal dignity on the grounds that cumulative charging was detrimental to the rights of the accused. While the Chamber 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, it did not properly apply the test to the facts in this case. In national courts and international tribunals, cumulative charging has never been posited as violating the rights of the accused. Cumulative charging is distinct from charges lacking in evidence and as such 'is not inimical to the due process rights of the accused; they remain safeguarded throughout the trial. Upon a finding of guilt, cumulative convictions are impermissible, but at the charging stage, whether charges are cumulative or not, their inclusion in the indictment does not violate fair trial practices.'¹⁷

Second, the brief argues that the Chamber's application of the cumulative charging test was too narrow, at least with respect to three categories of victims. For example, the Chamber held that the victims who were raped and who witnessed their family members being raped were not also tortured. This holding is at odds with precedent established by the International Criminal Tribunal for Yugoslavia in the case of Prosecutor v. Furundzija, which recognised the torture, and therefore the broader victimisation, of those who watched their relatives being raped.

Third, the Pre-Trial Chamber's reliance on the possibility under Regulation 55 to later re-characterise the evidence of torture and outrages upon personal dignity as rape contravenes the hierarchy of law set forth in Article 21 of the Rome Statute, which establishes the Statute and Rules — not Regulations — as applicable sources of law. When the Chamber stated after this re-characterisation of the evidence that the Prosecution had not presented sufficient evidence to support the charges of outrages upon personal dignity and torture, the Chamber did not make clear which evidence is part of the rape counts and which evidence has been dismissed. The brief argues that the Chamber's lack of clarity raises the important question, 'What facts and circumstances can the sexual assault witnesses base their testimony upon, now, other than rape?'¹⁸

Fourth, the brief argued that under Article 21, the Chamber is required to take into consideration evidence of gender-based violence, as incorporated into the Rome Statute, and as derived from international and regional treaties and their interpretation. Article 21(3) requires that:

The application and interpretation of law pursuant to this article must be consistent with internationally recognised human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status. [emphasis added]

International human rights treaties, particularly the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child, 'intend that crimes that occur against women and children during armed conflict are assiduously and fairly pursued'.¹⁹ Under Article 21, the Court is obligated to pursue justice in a non-discriminatory manner. The Chamber's narrow application of the cumulative charging test and re-characterisation of the evidence could 'diminish the effective access of victims to justice even in the absence of infringement on the due process rights of the accused',²⁰ and thereby contravene Article 21.

The brief was prepared by Patricia Viseur Sellers acting as Legal Counsel for the Women's Initiatives on this case. Annex II of the filing includes the names of the International Advisory Counci for the Women's Initiatives.

The Women's Initiatives' amicus curiae filing can be downloaded from our website (click here to download) or the ICC website.

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Prosecution's response to Women's Initiatives' amicus curiae observations

On 6 August 2009, the Prosecution issued a response to the Women's Initiatives' amicus curiae observations.²¹ The Prosecution welcomed the arguments regarding the Court's obligation to pursue a justice that does not discriminate on the basis of gender. It further concurred that ‘“the Chamber's too narrow restriction of rape and torture" charges, through its interpretation of doctrines of cumulative charging and re-characterisation in the Confirmation Decision in this case, "diminish the effective access of victims to justice”’.²²

In summary, it agreed with the amicus that the Chamber's rejection of the Prosecution's cumulative charging approach, and the potential impact on victims’ access to justice, are significant issues warranting review by the Appeals Chamber. The Prosecution reserved the right to discuss the amicus views on the merits of the Confirmation Decision once the Chamber grants the Prosecutor's Application for Leave to Appeal.

Read the Prosecution's response to the Women's Initiatives' filing: http://www.icc-cpi.int/NR/exeres/4F820E81-DF2F-47C1-9362-F51E49ACDB98.htm

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Footnotes

1. ICC-01/05-01/08, 15 June 2009 ('Confirmation Decision').
2. Pre-Trial Chamber III, Warrant of Arrest for Jean Pierre Bemba Gombo, ICC-01/05-01/08-1-tENG-Corr, 23 May 2008. The Prosecutor amended the Documents Containing the Charges against the Accused on two subsequent occasions. See Prosecution’s Submission of the Document Containing the Charges and List of Evidence, ICC-01/05-01/08, 1 October 2008; Prosecution's Communication of Amended Document Containing the Charges and Amended List of Evidence pursuant to the Third Decision on the Prosecutor's Requests for Redactions and Related Request for the Regulation of Contacts of Jean-Pierre Bemba Gombo, ICC-01/05-01/08-264, 20 November 2008.
3. Confirmation Decision, para 204.
4. Id., para 310.
5. Id., para 203.
6. Prosecution's Application for Leave to Appeal the Decision Pursuant to Article 61(7)(a) and (b) on the Charges against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-427, 22 June 2009.
7. Réponse du Représentant légal des victimes a/0278/08, a/0279/08, a/0291/08, a/0292/08,a/0293/08, a/0296/08, a/0297/08, a/0298/08, a/0455/08, a/0457/08, a/0458/08, a/0459/08, a/0460/08, a/0461/08, a/0462/08, a/0463/08, a/0464/08, a/0465/08, a/0466/08 et a/0467/08 à la demande d'autorisation d'interjeter appel déposée par le Bureau du Procureur à l'égard de la Décision sur la confirmation des charges, ICC-01/05-01/08-428, 26 June 2009.
8. Counsel for the Defence, Observations de la Défense à la demande du Procureur concernant l'autorisation de former appel contre la décision de confirmation des charges, ICC-01/05-01/08-443, 9 July 2009.
9. Request for leave to submit Amicus Curiae observations pursuant to Rule 103 of the Rules of Procedure and Evidence, ICC-01/05-01/08-447, 13 July 2009.
10. Decision on Request for Leave to Submit Amicus Curiae Observations Pursuant to Rule 103 of the Rules of Procedure and Evidence, ICC-01/05-01/08-451, 17 July 2009.
11. Id., para 12.
12. Observations de la Défense à la demande du l'ONG « Women's initiatives for Gender Justice » concernant l'autorisation de particper comme Amicus Curiae, ICC-01/05-01/08, 14 July 2009.
13. Requête du Représentant légal des victimes a/0278/08, a/0279/08, a/0291/08, a/0292/08, a/0293/08, a/0296/08, a/0297/08, a/0298/08, a/0455/08, a/0457/08, a/0458/08, a/0459/08, a/0460/08, a/0461/08, a/0462/08, a/0463/08, a/0464/08, a/0465/08, a/0466/08 et a/0467/08 eu égard au dépôt d'un Amicus Curiae par Women's Initiatives for Gender Justice, ICC-01/05-01/08-455, 21 July 2009.
14. Decision on the OPCV Request for Leave to Submit a Response to Amicus Curiae Observations, ICC-01/05-01/08-462, 27 July 2009.
15. Id., para 10.
16. Amicus Curiae Observations of the Women's Initiatives for Gender Justice pursuant to Rule 103 of the Rules of Procedure and Evidence, ICC-01/05-01/08-466, 31 July 2009; see also Corrigendum of 3 August 2009.
17. Id., para 22.
18. Id., para 32.
19. Id., para 36.
20. Id., para 39.
21. Prosecution's Response to Amicus Curiae Observations of the Women's Initiatives for Gender Justice pursuant to Rule 103 of the Rules of Procedure and Evidence, ICC-01/05-01/08, 6 August 2009.
22. Id., para 6.

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