Women’s Initiatives for Gender Justice gender 2013 report card on the International Criminal Court The Women’s Initiatives for Gender Justice is an international women’s human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and domestic mechanisms and works with women most affected by the conflict situations under investigation by the ICC. The Women’s Initiatives for Gender Justice has n Victims’ participation before the ICC country-based programmes with local and/or n Training of activists, lawyers and judges regional partners in Uganda, the Democratic on the Rome Statute and international Republic of the Congo, Sudan and Libya and a jurisprudence regarding sexual and gender- legal monitoring programme for all ICC Situation based crimes countries: Uganda, the Democratic Republic of n Advocacy for assistance and reparations for the Congo, Sudan, the Central African Republic, women victims/survivors of armed conflicts Kenya, Libya, the Côte d’Ivoire and Mali. The Women’s Initiatives for Gender Justice The strategic programme areas for the Women’s was the first NGO to file before the ICC and is Initiatives include: the only international women’s human rights n Political, institutional and legal monitoring organisation to have been recognised with and advocacy for accountability and amicus curiae status by the Court. To date, prosecution of sexual and gender-based crimes the organisation has filed before the ICC on before the ICC and domestic mechanisms seven occasions, most recently on gender and n Capacity and movement building initiatives reparations issues in The Prosecutor v. Thomas with women in armed conflicts Lubanga Dyilo case. n Conflict-resolution and integration of gender issues within the negotiations The Women’s Initiatives for Gender Justice and implementation of Peace Agreements works with more than 6,000 grassroots partners (Uganda, DRC, Darfur) and members across multiple armed conflicts n Documentation and data collection in relation and has offices in The Hague, Cairo, Kitgum to the commission of sexual and gender-based and Kampala to support our country-based crimes in armed conflicts programmes. Women’s Initiatives for Gender Justice Cairo Office Kampala Office Kitgum Office The Hague Office PO Box 12847 PO Box 210 Noordwal 10 Cairo Kampala Kitgum 2513 EA The Hague Egypt Uganda Uganda The Netherlands, Europe telephone +31 (070) 302 9911 [email protected] @4GenderJustice iccwomen.org The Women’s Initiatives for Gender Justice would like to thank the following donors for their support: n Anonymous n Her Majesty’s Government’s Foreign and Commonwealth Office, Ministry of Defence, and the Department for International Development n Open Society Foundations n Oxfam Novib n The Sigrid Rausing Trust n The United Nations Trust Fund to End Violence against Women The views expressed in this publication are those of the Women’s Initiatives for Gender Justice and do not necessarily represent the views of our donors, nor any of their affiliated organisations. Gender Report Card on the International Criminal Court 2013 © Women’s Initiatives for Gender Justice, March 2014 ISBN 978-94-90766-12-2 gender 2013 report card on the International Criminal Court 1 22 Contents 6 Introduction 10 Substantive Jurisdiction and Procedures 10 Substantive Jurisdiction War crimes | Crimes against humanity | Genocide | Non-discrimination 12 Procedures Measures during investigation and prosecution | Witness protection | Evidence | Participation | Reparations 14 States Parties/ASP 15 States Parties to the Rome Statute 17 Independent Oversight Mechanism Structure of the IOM | Inspection and evaluation functions | Investigative functions | Reporting | Anti-retaliation/whistleblower policy 25 Governance Study Group on Governance 28 Amendments Amendments to the Rules of Procedure and Evidence 35 Elections 35 Election of Deputy Prosecutor 36 Election of the Board of the Trust Fund for Victims 36 Election of one judge to fill a judicial vacancy 37 Judges of the ICC as of 31 October 2013 39 Composition of Chambers as of 31 October 2013 41 Budget for the ICC The proposed programme budget for 2014 | Zero-growth budget | Investigations and prosecutions | Registry | Legal aid | The Contingency Fund 3 Contents continued Substantive Work of the ICC 47 Overview of cases and Situations 48 Situations under preliminary examination 51 Democratic Republic of the Congo 52 Uganda 52 Central Aftrican Republic 54 Darfur 55 Kenya 56 Libya 56 Côte d'Ivoire 57 Mali 59 Charges for gender-based crimes 61 Gender-based crimes charges across each case as of 31 October 2013 64 Developments in cases including gender-based crimes 69 DRC: Developments in the Ntaganda case 71 Kenya: Charges for gender-based crimes in the Muthaura and Kenyatta case 73 Côte d'Ivoire: The adjournment of the confirmation proceedings in the Laurent Gbagbo case 88 Trial proceedings 88 Introduction 89 DRC: The Prosecutor v. Mathieu Ngudjolo Chui 92 DRC: The Prosecutor v. Germain Katanga 105 CAR: The Prosecutor v. Jean-Pierre Bemba Gombo 116 Kenya: Introduction 120 Kenya: The Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta 130 Kenya: The Prosecutor v. William Samoei Ruto and Joshua Arap Sang 136 Kenya: Common issues for both cases 156 Sudan: The Prosecutor v. Abdullah Banda Abaeker Nourain and Saleh Mohammed Jerbo Jamus 164 Appeals proceedings 164 DRC: The Prosecutor v. Thomas Lubanga Dyilo 170 DRC: The Prosecutor v. Mathieu Ngudjolo Chui 172 Victim and witness issues 172 Victim participation and legal representation 221 Protection and witness issues 235 Allegations of sexual violence against ICC witnesses by an ICC staff member 4 242 Recommendations 243 States Parties/ASP 248 Judiciary 251 Office of the Prosecutor 252 Registry Acronyms | Publications 255 Acronyms used in the Gender Report Card on the ICC 2013 256 Publications by the Women's Initiatives for Gender Justice List of tables in the Gender Report Card 2013 States Parties/ ASP 15 States Parties to the Rome Statute as of 30 November 2013 37 Judges of the International Criminal Court as of 31 October 2013 39 Composition of Chambers as of 31 October 2013 Substantive Work of the ICC 61 Status of all gender-based charges across each case as of 31 October 2013 177 Breakdown by Situation of applications for victim participation 179 Gender breakdown by Situation of applications for victim participation up to 30 June 2013 180 Gender breakdown by Situation of applications for victim participation between 1 September 2012 and 30 June 2013 181 Breakdown by Situation/case of victims who were formally accepted to participate in proceedings 183 Breakdown by Situation of victims who were formally accepted to participate in proceedings 185 Gender breakdown by Situation/case of victims who were formally accepted to participate in proceedings as of 30 June 188 Overview of female victim participants 191 Gender breakdown of applications for reparations 5 Introduction This is the ninth Gender Report Card on the International Criminal Court produced by the Women’s Initiatives for Gender Justice. Its purpose is to assess the implementation by the International Criminal Court (ICC) of the Rome Statute, Rules of Procedure and Evidence (RPE) and Elements of Crimes, and in particular the gender mandates they embody, in the eleven years since the Rome Statute came into force.1 1 The importance of these three instruments is evidenced by Article 21(1) of the Rome Statute, which states that ‘the Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence’. 6 The Rome Statute is far-reaching and forward-looking in many respects, including in its gender integration in the following key areas: n Structures — requirement for fair representation of female and male judges and staff of the ICC, as well as fair regional representation; requirement for legal expertise in sexual and gender violence; requirement for expertise in trauma related to gender-based crimes; the unique establishment of the Trust Fund for Victims n Substantive Jurisdiction — crimes of sexual violence, as well as definitions of crimes to include gender and sexual violence as constituting genocide, crimes against humanity and/or war crimes; the principle of non- discrimination in the application and interpretation of the law, including on the basis of gender n Procedures — witness protection and support; rights of victims to participate; rights of victims to apply for reparations; special measures, especially for victims/witnesses of crimes of sexual violence While implementing the Rome Statute is a task we all share, it is the particular responsibility of the Assembly of States Parties (ASP) and the ICC. This Gender Report Card is an assessment of the progress to date in implementing the Statute and its related instruments in concrete and pragmatic ways to establish a Court that truly embodies the Statute upon which it is founded and is a mechanism capable of providing gender-inclusive justice. 7 7 Introduction The Gender Report Card highlights the most significant developments taking place over the course of a year in relation to the work of the ICC and the ASP. Thus, as the work of the Court has evolved, so too has the focus of the Gender Report Card. The Gender Report Card 2013 focuses on the following areas: n States Parties/ASP n Substantive Work of the ICC Within these sections, we review and assess the work of each organ of the Court between 18 August 2012 and 31 October 2013. Additionally, in light of important developments pending at the time of this cut-off date, unlike previous years in which we have launched the Gender Report Card at the ASP and accordingly ended our monitoring three months prior to the Assembly, we exceptionally extended our period of review through 31 December 2013 in relation to key decisions and events.2 This edition of the Gender Report Card contains a comprehensive analysis of important developments during the ASP, including the proposal and ultimate adoption of three amendments to the RPE, as well as the adoption of a resolution that fully operationalised the Court’s Independent Oversight Mechanism (IOM).