TABLE Or CONTENTS I. INTRODUCTION II. MULTIPLE OFFENDERS AND CUMULATIVE CHARGING III. THE BEMBA GOMBO JURISPRUDENCE A. The Confirmation of Charges Decision of June 15, 2009 1. Torture as a Crime against Humanity 2. War Crimes of Torture and Outrages upon Personal Dignity B. The September 18, 2009 Decision on the Prosecutor's Application for Leave to Appeal 1. The Submissions of the Prosecutor, the Office of the Public Counsel for Victims, and the Women's Initiatives for Gender Justice 2. The Pre-Trial Chamber's Decision IV. THE PROBLEMATIC NATURE Or THE PRE-TRIAL CHAMBER'S REASONING A. The Role of the Prosecutor and the Pre-Trial Chamber B. The Celebici Test was Incorrectly Applied C. The Analysis of Regulation 55 was Flawed D. The Decision does not Appear to Conform with International Practice on Cumulative Charging V. EXPRESSIVISM, INTERNATIONAL CRIMINAL LAW AND GENDER-BASED VIOLENCE A. The Expressive Function of Law B. Expressivism and Delay C. The Value of Expressivism in the Bemba Gombo Case VI. CONCLUSION
Cumulative charging refers to the process by which an accused can be charged with a number of different crimes based on the same underlying acts, with the charges being expressed cumulatively rather than alternatively. (1) On June 15, 2009, in the Prosecutor vs. Jean-Pierre Bemba Combo case, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) declined to confirm three cumulative charges of gender-based violence: torture (through rape)--both as a war crime and as a crime against humanity--and the war crime of outrages upon personal dignity, on the grounds that such charges were subsumed by the rape charges that were also brought (and confirmed). (2)
The decision provoked considerable negative response, as it relied on a restrictive understanding of the cumulative charging principle as well as on a number of problematic interpretations of aspects of the ICC framework. (3) In addition, the approach to cumulative charging adopted by the PTC is less generous than that of other international criminal tribunals. (4) As well as having the potential effect of restricting the use of cumulative charging in future decisions, on a broader level, the dismissal of the gender-based violence charges in this case may have consequences for the progress of gender justice within the ICC.
The two main reasons on the basis of which the PTC declined to confirm the cumulative charges were the burden that would allegedly be placed on the defense by having to respond to multiple charges, as well as the risk that the proceedings would be delayed. (5) Avoiding delay in the proceedings and ensuring that the right of an accused to a timely trial is preserved are crucial objectives that the ICC has a duty to uphold. (6) Moreover, the right to be tried without undue delay is enshrined in Article 67 of the Rome Statute and is a general principle of law. (7) Delayed proceedings disadvantage defendants in a number of different ways, including by infringing on personal liberty through detention (both before and during a trial), by increasing the risk that evidence may be negatively affected (especially as a result of fading witness memories), and finally by augmenting the emotional strain on the accused as he awaits the proceedings. (8) In addition, delays in proceedings may be undesirable from the perspectives of victims, as, the longer that cases continue, the more difficult it may be for them to move on with their lives and achieve a sense of closure, especially in situations involving mass atrocities. (9)
However, there would have been significant value in accepting the cumulative charging approach of the Prosecutor in this particular case. Cumulative charging is useful in international criminal proceedings, as the three main categories of international crimes--genocide, crimes against humanity, and war crimes--have the potential to overlap in certain factual circumstances, with the consequence that a single act may give rise to multiple crimes. (10) The task of deciding which charges to bring can prove very challenging for the Prosecutor. Therefore, the ad hoc tribunals for the former Yugoslavia and Rwanda as well as other international criminal tribunals embraced the practice of cumulative charging, because it enabled the Prosecutor to bring a variety of charges that collectively described the crimes for which an accused person is responsible, rather than having to limit himself before all the evidence is presented and it becomes clear which charges might be best pursued. (11)
Cumulative charges also ensure that the full breadth of criminal charges may be recognized, and thus they form a part of the important expressive function of the law. (12) The expressive function of the law refers to law's ability to articulate and nourish societal values. (13) Expressive theorists hold that actions are expressive and carry meanings, and thus, such theorists are not concerned with the intended meaning of a law or a legal ruling, but rather its meaning as understood within society. (14)
Therefore, from an expressivist perspective, through explicitly confirming the charges relating to torture and outrages upon personal dignity, the PTC could have sent a powerful message relating to the heinousness of these particular forms of gender-based violence, which inflict harms distinct from the crime of rape. The significance of projecting such a message would have been to recognize the different nature of the harm that results from such acts, and thus offer recognition to the distinct suffering the victims in question experienced as a result of being subjected to such crimes. The expressive function of the law is particularly important in the international criminal context, as the goal of establishing norms is even more essential there than in domestic situations. (15) In fact, the ICC's message-sending function was recently acknowledged by Chief Prosecutor Fatou Bensouda as being a vital aspect of the ICC's role in the global legal order. (16)
The purpose of this Article is to explore the value that utilizing cumulative charging in the Bemba case could have provided from the perspective of the importance of expressiveness in international criminal charges and prosecutions. It begins by describing what is meant by "cumulative charging" before moving on to a discussion of the Confirmation of Charges Decision in Bemba, (17) and the subsequent decision refusing the Prosecutor leave to appeal. (18) The reasoning of the PTC is then explored, with an emphasis on how a more permissive approach to the cumulative charging matter could have been supported. The final section then examines the expressive function of the law and the tension that can sometimes arise between a desire to give effect to expressiveness and the need to ensure expeditiousness in international criminal proceedings. The conclusion reached is that the decision of the Chamber was unfortunate in its narrowness, and that an opportunity to convey the differing and equally damaging forms of gender-based violence that can stem from the same conduct was lost, with a corresponding loss of the chance to attempt to effect norms in this regard.
II. MULTIPLE OFFENDERS AND CUMULATIVE CHARGING
Multiple offenders--a term which refers to those offenders who commit a number of criminal offenses before detection and arrest--present many difficulties for criminal justice systems, particularly international criminal justice systems, where the majority of offenders fall into this category. (19) The most straightforward strategy is for the prosecutor to charge all relevant offenses, thus ensuring that the full extent of the offender's criminality is reflected in the indictment. (20) However, the major disadvantage with this approach is that the indictment may be too long, making it very difficult for the court to deal fairly and properly with all charges. (21) In addition, charging all relevant offenses may result in delays and longer proceedings, which may interfere with the right of the defendant to a timely trial. (22) Therefore, in the domestic context, a number of alternative approaches have emerged, including the charging of specimen counts and the use of general charges, in an effort to avoid these problems and safeguard the rights of the accused. (23)
In the international context, cumulation of offenses is a significant issue, as certain acts could potentially be charged under several different headings given the overlap between many international crimes. (24) However, two different forms of concurrence have been recognized, each of which gives rise to a separate approach. Firstly, there are those cases in which the offender's act, while technically meeting the definitions of several offenses, is properly subsumed under only one criminal offense, which may in turn allow for only one sentence to be imposed. (25) This scenario is often referred to as being one of "apparent concurrence," in that it may appear that a perpetrator is violating several provisions, but in reality, he is only in violation of one. (26) In contrast, "ideal concurrence" exists where the offender's conduct is not subsumed within the one offense, but rather ought to be categorized as several different offenses, which may then allow for multiple punishments. (27) In other words, the single act of the perpetrator violates more than one criminal provision.
However, ascertaining whether a particular case involves apparent or ideal concurrence has proved challenging in international criminal proceedings, and no definitive solution to this matter has emerged. (28) The ad hoc tribunals encountered the issue in a number of cases, most notably in the International Criminal Tribunal for the Former Yugoslavia (ICTY) case of Celebici, where a test was set down which has been referred to in subsequent decisions of the ICTY as well as other international criminal tribunals. (29) This test requires that the crimes be distinct in order for cumulation to be permitted. Distinct crimes are those involving a materially distinct element, that is, an element requiring proof of a fact not required by the other. (30) This approach was seen as a fair way of balancing the right of the accused to a fair trial, and the duty of the prosecutor to charge a defendant in a manner that reflects his/her entire criminality. (31) This test was also applied in the Bemba case, to which I now turn.
III. THE BEMBA GOMBO JURISPRUDENCE
A. The Confirmation of Charges Decision of June 15, 2009
Jean-Pierre Bemba Gombo appeared before Pre-Trial Chamber II (PTC) on June 15, 2009 in connection with the following charges: murder, rape, and torture as crimes against humanity; (32) and murder, rape, torture, outrages upon personal dignity, and pillaging as war crimes. (33) However, the PTC rejected the cumulative charging approach of the Prosecutor in relation to the torture and outrages upon personal dignity charges, and declined to confirm them, holding that--as they were based on the same underlying facts--they were subsumed within the rape charges. (34)
On the matter of cumulative charging, the PTC began by acknowledging the acceptance of the practice in both national and international courts and tribunals. (35) The PTC also emphasized that it is for the Prosecutor to select the most appropriate legal characterization of the facts. (36) However, the PTC then proceeded to state that cumulative charging risks subjecting the defense to an undue burden by requiring it to respond to multiple charges based on the same facts and that the practice may also delay proceedings. (37) Therefore, the PTC held that it is for the PTC to characterize the facts brought by the Prosecutor. The PTC went on to hold that the practice of cumulative charging is "detrimental" to the rights of the defense and, although it is permissible in the ICC, could only be allowed in limited circumstances. (38) The PTC then applied the Celebici test, holding that only "distinct crimes"--that is, crimes that contain "at least one additional material element not contained in the other" (39)--could be cumulatively charged.
The PTC also supported its refusal to confirm the three sets of charges by referring to Regulation 55 in the ICC legal framework. (40) This Regulation permits the Trial Chamber to alter the legal characterization of the facts of charges in order to "accord with the crimes listed in [A]rticles 6, 7 and 8, or to accord with the participation of the accused" without changing the charges. (41) Regulation 55 is a novel feature of the ICC's legal regime and does not appear in the legal frameworks of the ad hoc tribunals, hence the PTC held that "there is no need for the Prosecutor to adopt a cumulative charging approach ..." in the ICC, as the Trial Chamber could simply select the appropriate legal characterization itself if necessary. (42) The PTC then went on to dismiss the three types of charges presented.
1. Torture as a Crime against Humanity
The charge of torture as a crime against humanity was framed by the Prosecutor as torture "through acts of rape or other forms of sexual violence." (43) The Prosecutor then presented evidence of not only rape as a form of torture, but also of material facts other than rape that he felt constituted torture. (44) The PTC declared that the torture charges were subsumed by the rape charges because, by application of the Celebici test, there was no additional materially distinct element present in the torture charges that was not present in the broader rape charges. (45) The specific material elements of torture were held to be "severe pain and suffering and control by the perpetrator over the person," and these were also said to be found in the crime of rape. (46) As rape contains an additional material element--namely "penetration"--it was held to fully subsume the torture charges. (47) Since the Prosecutor had not provided sufficient material evidence in the charging document of acts other than rape amounting to torture, the PTC also declined to confirm charges of torture as a crime against humanity based on acts other than rape. (48)
2. War Crimes of Torture and Outrages upon Personal Dignity
The charge of torture as a war crime was not confirmed because the Prosecutor was found not to have elaborated on the specific intent required to prove the crime. (49) Thus the Prosecutor was held not to have discharged his duty under Article 61(3) of the Rome Statute (50) and Regulation 52 (b) of the Regulations of the Court. (51) However, the PTC also declined to confirm the outrages upon personal dignity charges (52) for far less persuasive reasons than the torture as war crimes charges. The Prosecutor stressed that, although all acts of rape involve humiliating and degrading treatment and a violation of a person's dignity, rape and outrages upon personal dignity are distinct violations. (53) The Chamber referred to its holding on torture as a crime against humanity, stating that the Prosecutor was again relying on the same conduct to support different charges, and that as "most of the facts" presented constituted the essential elements of the crime of rape, the outrages upon personal dignity charges were found to be "fully encompassed" in the count of rape. (54) In relation to outrages upon personal dignity other than acts of rape, the PTC again stated that the Prosecutor had failed to clearly set out the facts to support these charges in the Document Containing the Charges. (55)
B. The September 18, 2009 Decision on the Prosecutor's Application for Leave to Appeal
The Prosecutor applied for leave to appeal the PTC's June 15, 2009 decision (56) based on two issues; on September 18, 2009, the PTC pronounced its decision on this application. (57) The first issue on which the Prosecutor based his appeal concerned the authority of the PTC to deny charges based on the cumulative charging principle because, according to the Prosecutor, only the insufficiency of evidence can be used as grounds for denying charges. (58) In addition, the Prosecutor opined that the charges of outrages upon personal dignity and torture were not fully subsumed by the rape charges. (59) The second issue related to the alleged failure of the Prosecutor to properly notify the defense of the material facts underlying the charges of torture and of outrages upon personal dignity. (60) As the second issue is not directly relevant to the topic of this Article, only the outcome of the first issue will be discussed here.
1. The Submissions of the Prosecutor, the Office of the Public Counsel for Victims, and the Women's Initiatives for Gender Justice
In order for leave to appeal to be granted, the Prosecutor is required to illustrate that the issue affected both the fair and expeditious conduct of the proceedings as well as the outcome of the case. (61) In addition, the relevant chamber must be satisfied that the resolution of the issue would materially advance the proceedings. (62)
In order to ensure fairness, the Prosecutor declared that it is the role of his office--not the PTC's--to decide the charges as he is in the best position to do so. (63) The Prosecutor also asserted that the resolution of this issue concerned the fairness of proceedings from the perspective of victims, as they would be denied the opportunity to have the full range of their suffering reflected in the charges, as well as possibly being denied the chance to seek reparations. (64) The expeditiousness of the proceedings could also be affected, because if the charges are put to the Trial Chamber (TC) as they currently stand, then the Prosecutor would have to request the use of the Regulation 55 re-characterization-of-facts procedure, thus slowing down proceedings. (65) In addition, the Prosecutor alleged that the issue would impinge on the outcome of the case, as the disputed charges would not go to trial, hence depriving the TC of the opportunity to reflect and pronounce upon the full range of facts pleaded and charges brought by the Prosecutor. (66) Finally, the Prosecutor contended that the issue would also "materially advance" the proceedings as the TC would be able to consider from the beginning all proper charges. (67)
As well as considering the arguments of the Prosecutor, the PTC took into account the observations of the Office of Public Counsel for Victims, who drew attention, in particular, to the effect of the decision to exclude certain charges on the ability of victims to participate. (68) In addition, an amicus curiae brief submitted by the Women's Initiatives for Gender Justice (WIGJ) was considered, with which the Prosecutor concurred on many points. (69) Among the key issues raised by the amici were that cumulative charging "does not violate fair trial practices" and that although the Chamber had applied the correct test for cumulative charging, it had been applied incorrectly in the case of "at least three categories of witnesses." (70)
2. The Pre-Trial Chamber's Decision
The PTC declined to hold that the fair and expeditious progress of the proceedings were affected by the first issue, that is, the authority of the PTC to deny charges based on the cumulative charging principle. (71) The central aspect of this finding was that the PTC declared that it was under no obligation to accept the charges brought before it unquestioningly, and in fact had a duty to decline charges if necessary to safeguard the rights of the defense. (72) The PTC held that the Prosecutor's role in bringing charges would not be interfered with through the adoption by the PTC of such a role, as it is the PTC's proper role to delineate the scope of the trial proceedings. (73) The PTC also disagreed with the Prosecutor's assessment that the excluded charges would not go to trial, stating that "[a]ll facts of rape pertaining to acts of rape ... have been retained," and the factual scope of the case would not be limited by the decision to retiree to confirm certain charges. (74)
Additionally, the PTC referred to the availability of Regulation 55 as a method of re-characterizing charges if deemed necessary to do so. (75) The PTC rejected the interpretation put forward by the WIGJ--that the Regulations of the Court were not applicable law under Article 21 of the Rome Statute--opining instead that Regulation 55 was a "further important development in international criminal law" which helps the TC perform its functions effectively. (76) Arguments relating to the fairness of the proceedings from the perspective of victims were also dismissed, as it was held that victims who suffered rape would not be denied the opportunity to participate, and in any case victims did not have the right to retain certain charges if the Chamber felt that the expeditiousness of the proceedings and the rights of the Defense were threatened by such retention. (77)
Turning then to the issue of expeditiousness, the PTC declared that one of the main reasons for excluding the charges in question was to further the expeditiousness of the proceedings, and thus it was "questionable" that a finding aimed at ensuring that proceedings are efficient "can in itself reasonably be viewed as significantly affecting the expeditious conduct of proceedings." (78) For the reasons expressed above, the PTC also held that the outcome of the trial would not be affected, and therefore there was no need for the Chamber to consider whether the issue at hand materially advanced the proceedings. (79) The second issue--relating to the alleged failure of the Prosecutor to properly notify the defense of the material facts underlying the torture and outrages upon personal dignity charges--was also dismissed, and thus the Prosecutor's application for leave to appeal was denied. (80)
IV. THE PROBLEMATIC NATURE OF THE PRE-TRIAL CHAMBER'S REASONING
On closer inspection, the reasoning of the PTC is not as persuasive as it initially may appear, for four distinct reasons. First, the Chamber's interpretation of the ICC's legal framework in terms of the role of the PTC and the Prosecutor's ability to bring cumulative charges appears flawed. Secondly, the cumulative charging test that the PTC adopted, while correct, was not applied correctly to the charges in question. Third, the PTC relied on an erroneous understanding of the purpose behind Regulation 55. Finally, the statements made about cumulative charging appear not to be in line with the practice of other international criminal tribunals, which have adopted a far less restrictive approach to the practice. This Part will explore each of these reasons in turn, in an effort to illustrate the questionable foundation upon which the decision to dismiss the charges was built, before the next Part investigates the value that confirming the charges could have held from the point of view of the significance of expressiveness in international criminal law.
A. The Role of the Prosecutor and the Pre-Trial Chamber
In declining to confirm the cumulative charges, the PTC was exercising what it described as one of its "core functions," that is, to "filter the cases to be sent to trial and detect deficiencies which would otherwise flaw the entire proceedings." (81) The central purpose behind the function is to ensure that the rights of the defense are safeguarded, which the PTC declared itself to be "duty-bound" to uphold at any stage in the proceedings. (82) The Chamber then claimed that to reduce its role to that of merely confirming or declining the charges brought by the Prosecutor would not conform with its "inherent powers" and would run counter to its understanding of its role and mandate under the Rome Statute. (83) The PTC was specifically developed as an oversight mechanism, designed to monitor the Office of the Prosecutor and ensure it did not go beyond its powers. (84)
Therefore, safeguarding the rights of the defense is a central duty of the PTC and one it needs to carefully protect. (85) Maintaining expeditious proceedings is a vital aspect of this duty, therefore excessive use of practices such as cumulative charging could compromise the PTC's obligations in this respect. However, as crucial as this duty is, the PTC's attempt to uphold it gave the Chamber a role which is neither explicitly nor implicitly provided for under the Rome Statute. In addition, such a role was rejected during the Rome Statute's formation and, therefore, it is difficult to justify the claim that such a function automatically follows from the nature of the PTC.
The Rome Statute and the Rules of Procedure and Evidence do not specifically limit the Prosecutor from bringing cumulative charges. (86) When the Prosecutor is bringing charges against a person, he is simply required to submit an application to the PTC containing, among other things, "[a] specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed." (87) Thus, the drafters of the Rome Statute decided not to expressly bar the Prosecutor from bringing cumulative charges, and instead allowed him the freedom to frame the charges in the manner that he sees fit in order to fulfill his duty to "take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court." (88) This interpretation fits with the powers given to the Prosecutor under Articles 42 and 54 of the Rome Statute, where the power to conduct investigations and prosecutions is vested exclusively in his office. (89)
In contrast, the powers of the PTC in confirming charges are specifically limited. (90) The PTC is required, under Article 61(7) of the Rome Statute, to take one of three courses of action upon being presented with charges by the Prosecutor. The first option is to "confirm those charges in relation to which it has determined that there is sufficient evidence." (91) Second, the PTC can decline those charges where it has determined that there is insufficient supporting evidence. (92) Finally, the PTC has the power to adjourn the proceedings in order to request that the Prosecutor conduct further investigation or provide further evidence, or to amend the charges because the evidence submitted appears to establish a different crime. (93)
There is no mention in Article 61(7) of the power that the PTC claimed to possess, that is, the ability to re-characterize the facts put forward by the Prosecutor, which the Chamber described as one of the "core functions" of the PTC. (94) This power is not implicit in the functions of the PTC that are listed, and instead represents a wholly different option that was in fact rejected during the drafting process. An earlier draft of the Rome Statute included a proposal, which was not adopted, to allow the PTC to "confirm only part of the indictment [and amend it], by giving a different qualification to the facts." (95) Thus, re-characterization of the facts is not a role that flows naturally from the role given to the PTC in the Rome Statute, and if the Statute's architects intended for this organ to have such a role, then they would not have specifically declined to include the proposal that would have provided for this. The Chamber, through its decision, granted a power to itself which it does not possess under the Rome Statute and which represents an intrusion into the statutory role of the Prosecutor.
The PTC claimed that its role cannot "be that of merely accepting any charge that is put to it" and that the option to re-characterize the facts is necessary in order to safeguard the rights of the defense. (96) However, in describing the role of the PTC, the Chamber failed to mention the crucial third option available on being presented with charges, which prevents the PTC from occupying a role that is a "mere formality." (97) The Chamber also has the power to adjourn proceedings and request action from the Prosecutor if it feels the charges are unsatisfactory. This power ensures that the proper charges can be brought in a particular case, while still ensuring that the Prosecutor's role in delineating the charges is not interfered with.
B. The Celebici Test was Incorrectly Applied
In addition to not possessing the power to re-characterize the facts of the charges, the PTC's conclusion that the disputed charges are to be subsumed by the rape charges was in itself ill-founded, as the test applied was not employed correctly. The PTC in Bemba adopted the test set out in the Appeals Chamber decision of the International Criminal Tribunal for the former Yugoslavia (ICTY) in Celebici (98) as the standard to be followed on the issue of cumulative charging and convictions. (99) This test, requiring the presence of a distinct material element, was held not to be satisfied in relation to torture as a crime against humanity and the war crime of outrages upon personal dignity, because both charges were found to lack a distinct material element not found in the rape charges. However, as the amicus curiae brief submitted by the WIGJ highlights, this was not true in the case of "at least three categories of witnesses." (100) These witnesses, according to the WIGJ, suffered harms not captured by the rape charges and instead endured torture and/or outrages upon personal dignity. (101)
In relation to the torture charges, the WIGJ first referred to a particular witness, a ten-year-old child who had been raped. (102) The PTC had held that the material elements of torture were subsumed by the rape definition. (103) The elements of torture as a crime against humanity consist of the "intentional infliction of severe [physical or mental] pain or suffering" upon a person "under the custody or control of the perpetrator." (104) In the case of war crimes, the torture must have been carried out for a particular purpose (105) such as "obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind." (106) On the other hand, the elements of rape (107) consist of an invasion that results in a penetration of any part of the body of the victim or the perpetrator and that must be committed by "force or threat of force or coercion" or, alternatively, the invasion must be "committed against a person incapable of giving genuine consent." (108)
In the case of this witness, the fact that the invasion was committed by force is not necessary to prove that she suffered rape because--due to her age-related incapacity--she was unable to consent. (109) Thus the elements of rape are proven without having to address the force used against the child. (110) However, this force--which manifested itself as a public act of rape which left the child physically and mentally scarred, thereby satisfying the torture requirement of the infliction of "severe [mental or physical] suffering"--amounted to a separate crime committed against the witness and ought to have been recognized as torture through rape. (111)
The other witnesses who suffered harms that were distinct acts of torture not covered by the rape charges consisted of the brother of a rape victim who was lashed while his sister was raped but did not suffer sexual penetration himself, (112) and persons who were victims of rape themselves and who were also forced to witness the rape of family members. (113) This form of torture was explicitly recognized in the ICTY decision of Furundzija. (114) In that case, the accused was found guilty as a co-perpetrator of the torture of Witness A, a rape victim, and Witness D, a person who was forced to witness the rape of Witness A. (115) Furundzija offers clear recognition of the severe suffering that results from being forced to witness the rape of another. (116) The Trial Chamber in Furundzija also emphasized, in particular, the fact that Witness D knew Witness A personally, as a factor that contributed to the "severe mental and physical suffering" he endured. (117)
In her comment on the Furundzija case, Kelly Dawn Askin welcomed the decision's acknowledgement of the distinct harms of sexualized torture and sexual violence. (118) She states that these two crimes "frequently overlap" and may appear at times "indistinguishable," but "may also constitute wholly separate and independent crimes, particularly when committed for different purposes and through varied means or methods." (119) In Furundzija, both witnesses were viewed as victims: Witness A through being raped and through this taking place publicly and in the presence of a person she knew; and Witness D, through being victimized from having to watch the rape of a woman he knew. (120) This recognition that the act of rape caused more than one form of suffering, and in fact resulted in multiple harms to the victim and the witness, was described by Askin as "an important but subtle" aspect of the case. (121)
Furundzija represents a more progressive approach to the charging and prosecution of rape, and gender-based violence more broadly--one that recognizes the varying harms that can stem from such acts and the numerous purposes that can lay behind such actions. In contrast, the Bemba decision declaring the torture charges to be subsumed by the rape charges adopts an approach that is restrictive, (122) and fundamentally does not appear to meet the Celebici test. (123) By declaring that these crimes are subsumed by rape, the PTC demonstrated a narrow understanding of the suffering that gender-based violence produces, which detracts from the overall image of gender-based violence as involving crimes of serious concern. In the past, rape and other crimes of gender-based violence were regularly categorized as inevitable consequences of war, rather than as serious acts of violence. (124) Due to this erroneous categorization, gender-based violence was largely ignored in international criminal proceedings, and very few prosecutions for such crimes took place, even after the ad hoc tribunals made strides with regard to gaining recognition for such crimes. (125) Therefore, the perception was maintained that gender-based violence was a lesser crime compared to other serious crimes of international concern. (126)
However, it is increasingly being acknowledged--in part as a result of the writings of commentators such as Kelly Dawn Askin, Catherine MacKinnon, and Rhonda Copelon--that rape and gender-based violence are used as weapons of war. (127) This notion of gender-based violence is founded on the fact that gender-based violence causes broader effects than simply personal violation. (128) It has the power to dehumanize and destroy not only individuals, but also their families and broader communities. (129) Gender-based violence is thus a powerful means of waging war and ought to be understood as such by the ICC.
By denying that rape can be a means of torture and an outrage upon a person's dignity, as well as a crime in itself, the PTC in Bemba is accepting a vision of rape that is too restrictive. This amounts to an inaccurate and harmful rejection of the true effects of rape. In particular, by declining to confirm the torture and outrages charges, the Chamber was denying a crucial aspect of the suffering endured by a number of witnesses. (130) The individuals forced to watch the rape of family members were victimized more broadly than the rape charges suggest. They suffered humiliation, degradation, and violation of their dignity, which is not an element of rape under the Rome Statute. (131) An important aspect of the categorization of gender-based violence crimes in the Statute is that they are separated from outrages upon personal dignity, as linking gender-based violence to this crime downplays its serious nature. (132)
Therefore, the elements of "outrages upon personal dignity" should not be assumed to form an aspect of rape, and declaring them to be subsumed within the crime of rape amounts to a backwards step, as it re-links the two different crimes together when they are now properly seen as separate. The severe damage to dignity that naturally results from enduring public acts of rape is a recognizable harm in itself. (133) Thus, the three categories of individuals highlighted by the WIGJ suffered a broader victimization than is reflected in the charges confirmed. In particular, the acts of torture and outrages upon personal dignity were wholly separate violations deserving of recognition.
C. The Analysis of Regulation 55 was Flawed
One of the main reasons for why the relevant charges were not confirmed is the existence of Regulation 55, which provides for a procedure that enables the Trial Chamber (TC) to alter the legal characterization of the facts if necessary. (134) Thus, the Pre-Trial Chamber (PTC) concluded that cumulative charging was not necessary in the ICC, as the practice had emerged to aid prosecutors who may find it difficult to decide on the charges to bring before all the evidence is presented. (135) However, according to the PTC, Regulation 55 ensures that the Prosecutor may bring charges that he will not be able to prove (and omit other charges could have been selected instead based on the same facts), and then the TC can simply re-characterize the facts if necessary, thereby eliminating the need for cumulative charging. (136)
However, the PTC failed to appreciate that while Regulation 55 can assist in situations where the Prosecutor does not bring the correct charges, this does not obviate the need for cumulative charging. (137) Cumulative charging is still necessary in order to ensure that the full extent of an accused person's criminality is recognized. The rationale behind cumulative charging is two-fold. First, cumulative charging gives the Prosecutor the best possible opportunity to carry out his function of ensuring that those who commit crimes of international concern are in fact brought to justice. Second, it ensures that the full extent of an accused's criminality is reflected in the charges brought against them. (138)
Moreover, Regulation 55 is a discretionary procedure. (139) The TC is not required to re-characterize the facts where warranted: it simply "may" change the legal characterization if it so decides. (140) Therefore, there is no guarantee that the legal characterization will be altered so that the Prosecutor's case can proceed successfully, and no protection is offered in cases where a failure to re-characterize could result in the acquittal of a guilty defendant. (141) Carsten Stahn describes Regulation 55 as clarifying an "interpretive choice" rather than instituting a "new procedural device per se." (142) This fits with the language of the Regulation, which is discretionary rather than obligatory in nature. (143) Thus, Regulation 55 does not appear to offer an alternative to cumulative charging as a practice. Instead, it aims to provide for a re-characterization process that may facilitate the TC in reaching a decision that ensures that a guilty party is indeed brought to justice, but it does not perform all of the functions of cumulative charging. (144)
The discretionary nature of Regulation 55 was highlighted in the interpretation given to the Regulation by the Appeals Chamber (AC) in Lubanga. (145) In this decision, the AC overturned a previous holding of the TC that Regulation 55 set out two distinct procedures, and instead held that it provided for a singular process only. (146) According to the TC, Regulation 55(1) provided it with the power to change the legal characterization of the facts at the decision stage, while Regulation 55(2) and (3) outlined a separate procedure, available at any stage during the trial process. (147) The difference between the two procedures was that the former allowed for alterations to be made provided that such changes not exceed "the facts and circumstances described in the charges." (148) The second procedure then allowed for changes to be made at any stage during the trial process, but was not bound by the limitation not to exceed the facts and circumstances described in the charges found in Regulation 55(1). (149)
This second procedure would have granted considerable power to the TC by providing it with the ability to alter the legal characterization of the facts as it believed necessary, without being constrained by the charges brought. Clearly, this interpretation of Regulation 55 represented a significant interference with the powers of the Prosecutor, and thus was rejected by the AC. (150) In their decision, the AC displayed a desire to restrict the ambit of Regulation 55 and ensure that it would only be used in exceptional circumstances to fulfill its primary function of "clos[ing] accountability gaps." (151) The AC also emphasized the importance of safeguarding the role of the Prosecutor in carrying out investigations and proffering charges against suspects by not allowing the TC to intrude on this function, which "would be contrary to the distribution of powers under the [Rome] Statute." (152) Regulation 55 thus does not appear to be a viable alternative to cumulative charging, as it provides for a procedure intended to only be used in very limited circumstances.
A final problem with the PTC's reliance on Regulation 55 is that the procedure described in the Regulation is time consuming, as it requires the Chamber to provide notice, and may also involve a suspension of the hearing. (153) This contradicts one of the main reasons provided for refusing to allow the multiple charges in the first place: the claim that they are detrimental to the defense because of the unreasonable delay they cause. (154) The Regulation 55 procedure causes delay as well as considerable disruption through its suspension of the hearing. Additionally, the charges the accused initially faced could be altered, which, notwithstanding the requirement that the accused be provided with notice, would certainly be detrimental to the conduct of his defense. (155) Therefore, the central argument of the PTC against retaining the cumulative charges--that they interfere with the rights of the defense--does not appear persuasive considering the potential ways in which Regulation 55 could prejudice the rights of the accused.
D. The Decision Does Not Appear to Conform with International Practice on Cumulative Charging
In the Bemba case, cumulative charging is declared to be "detrimental" to, and is said to place an "undue burden" on, the defense. (156) The PTC then went on to say that although the practice was permitted within the ICC (because the Rome Statute does not preclude it) cumulative charging should only be used in limited circumstances. (157) This restrictive approach to cumulative charging appears to be out of step with the more permissive attitude adopted towards the practice in the ad hoc tribunals, the Extraordinary Chambers in the Courts of Cambodia, and the Special Court for Sierra Leone. (158)
The issue of cumulative charging also arose in the International Criminal Tribunal for Rwanda (ICTR) in the Akayesu case, where the Tribunal considered the validity of the practice given the possible interference with the principle of double jeopardy. (159) The ICTR set down a test for dealing with cases involving multiple charges based on the same set of facts by drawing on Rwandan law on cumulation of charges, and also by noting international law developments, in particular the earlier Tadic decision of the International Criminal Tribunal for the former Yugoslavia (ICTY). (160) The ICTR set out a test stating that cumulation is acceptable "(1) where the offences have different elements; or (2) where the provisions creating the offences protect different interests; or (3) where it is necessary to record a conviction for both offences in order fully to describe what the accused did." (161) The ICTR also referred to two cases when this practice would not be acceptable: first, when "one offence is a lesser included offence of the other"--as in the case of murder and grievous bodily harm--and, second, "where one offence charges accomplice liability and the other offence charges liability as a principal." (162) Later cases before the ICTR followed this test and thus it forms an established aspect of that tribunal's procedure. (163)
The ICTY made the following statement on the cumulative charging issue in Celebici:
Cumulative charging is to be allowed in light of the fact that, prior to the presentation of all of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven. The Trial Chamber is better poised, after the parties' presentation of the evidence, to evaluate which of the charges may be retained, based upon the sufficiency of the evidence. In addition, cumulative charging constitutes the usual practice of both this Tribunal and the ICTR. (164)
Therefore, cumulative charging was accepted as an established practice by both the ICTY and the ICTR based on the rationale that it is not possible for the Prosecutor when bringing charges to know for certain which charges are capable of being proven, and so he should be able to bring a range of charges so that a guilty defendant does not escape conviction on the grounds that the charges brought were unsuitable. On the issue of cumulative convictions, the ICTY held that "distinct crimes" might justify multiple convictions. (165) Distinct crimes are those involving a materially distinct element, that is, an element requiring proof of a fact not required by the other. (166) This test has gathered widespread acceptance and has been followed in subsequent ICTY decisions as well as the decisions of other international tribunals. (167)
Cumulative charging was also discussed extensively in the earlier ICTY case Kupreskic. (168) There, the TC made the point that the Statute of the ICTY and the Rules of Procedure and Evidence do not delineate the manner in which charges are to be brought in the tribunal, a statement which also holds true for both the ICTR and the ICC, and which means that the Prosecutor is not barred by the legal framework from bringing cumulative charges. (169) The ICTY continued by stating that two principles ought to govern the practice of cumulative charging: first, the rights of the accused have to be safeguarded and, second, the Prosecutor should be granted all powers consistent with his powers to ensure that he is able to carry out his duties effectively. (170) The first requirement entails that an accused be informed promptly of the specifics of the charges against him, including the facts supporting such charges and the legal elements. (171) The second principle, then, demands that the Prosecutor be able to carry out his mission of ensuring that persons are prosecuted for serious violations of international law by not allowing legal technicalities concerning the classification of offenses to prevent such effective prosecutions. (172)
The ICTY then set out guidance on how the rights of the accused and the Prosecutor should be reconciled in cases involving possible accumulation of offenses. First, cumulative charges should only be brought when two or more provisions are violated simultaneously. (173) Second, alternative charges should be brought rather than cumulative charges where there is a breach of more than one provision depending on the elements of the crime that the Prosecution can prove. Finally, the Prosecutor should "refrain as much as possible from making charges based on the same facts but under excessive multiple heads whenever it would not seem warranted to contend ... that the facts are simultaneously in breach of various provisions of the [relevant] Statute." (174)
The ICTY thus offers considerable guidance on how best to approach the cumulative charging issue. In particular, Kupreskic and Celebici emphasize the need for the practice and, importantly, how it can be reconciled with the rights of an accused. The Bemba case failed to give adequate attention to the second principle recognized in Kupreskic--the right of the Prosecutor to be able to carry out his role effectively. Instead, the PTC held that cumulative charging "places an undue burden on the [d]efense" rather than considering more carefully the need for such a practice, especially in international criminal justice proceedings. (175) The complexity of international criminal law, in particular the overlap between offenses, necessitates the availability of cumulative charging. (176) Therefore, the conclusion that the burden it places on the defense is "undue" fails to appreciate the reason as to why the practice became acceptable in the first instance in the ad hoc tribunals. Cumulative charging does make the task of the defense more difficult, but its existence is merited by the need to ensure that prosecutions brought are indeed effective.
In the Special Court for Sierra Leone (SCSL) decision of Brima, the Appeals Chamber also upheld cumulative charging, accepting the reasoning set out in the ad hoc tribunals, that "prior to the presentation of all the evidence it is not possible to determine to a certainty which of the charges brought against the accused will be proven." (177) The Extraordinary Chambers in the Courts of Cambodia (ECCC) considered cumulative charging in Duch. (178) The ECCC referred to the acceptance of cumulative charging in the ad hoc tribunals and the SCSL as a basis for allowing multiple charges based on the same underlying facts in this case. (179) The test adopted was the one based on the existence of a "distinct material element" as set down in Celebici, which highlights the growing acceptance for this particular approach to the cumulative charging issue. (180)
Therefore, given the failure to explicitly limit the ability of the Prosecutor to bring cumulative charges in the Rome Statute and Rules of Procedure and Evidence, the widespread acceptance of the practice in other international criminal tribunals should have encouraged the PTC in Bemba to adopt a more accommodating approach to the practice. Even though the ICC is clearly not bound by the decisions and practices of other international criminal tribunals, the necessity of cumulative charging has been emphasized convincingly in many of the decisions of the ICTY and ICTR as being an essential means of ensuring that the full culpability of an accused is recognized in the charges brought. (181) These tribunals have also accepted that the rights of defendants are not threatened by cumulative charges provided that the test set out in Celebici is adhered to. (182) In addition, the ICTY has stressed that the real threat to the accused--that of being punished more than once for the same criminal act--can be addressed at the sentencing stage. (183)
Apart from the above listed reasons, a perhaps more persuasive rationale presents itself in support of the conclusion that the gender-based violence charges ought to have been retained. This reason is concerned with the role of expressivism in international criminal law, particularly its utility within the realm of gender-based violence.
V. EXPRESSIVISM, INTERNATIONAL CRIMINAL LAW AND GENDER-BASED VIOLENCE
In its decision, The PTC stressed that the facts relating to the incidences of torture and outrages upon personal dignity would still be tried, stating that "[a]ll facts pertaining to the acts of rape, which the Prosecutor presented under more than one legal characterization, have been retained." (184) Thus, the PTC asserted that the particularities of the crimes would not be lost in its opting to re-characterize the charges as rape rather than preserve the specific charges as originally presented by the Prosecutor. However, while this may be true to a certain extent, a genuine value would have attached to the action of maintaining the cumulative charging approach of the Prosecutor. This value relates to the significance of the expressive ability of the law, especially the import of expressivism in international criminal law relating to gender-based violence.
A. The Expressive Function of Law
According to Richard Pildes and Elizabeth Anderson, expressive theories, at the most general level, "tell actors--whether individuals, associations or the State--to act in ways that express appropriate attitudes toward various substantive values." (185) As far as this expressivist theory applies to the law, Cass Sunstein states, "there can be no doubt that the law, like action in general, has an expressive function." (186) Thus, laws and legal decisions are a form of expression and can manifest a state of mind. (187) This expressive function can be understood in two ways. Firstly, through making a statement, the law may intend to affect social norms in such a way as to ultimately affect the attitudes and behavior of people. (188) Thus, a certain law may be favored because it will lead to good consequences. A second understanding of the expressive function of the law focuses on the individual interest in integrity. (189) Rather than the particular consequences of an action, the concern instead is with upholding certain values and norms through the law, even if the consequences of the passing of such laws are unknown and obscure. (190) A good example of this latter function is anti-discrimination legislation, which may be insisted on by a society for the message it sends rather than the actual effect it has on minority groups. (191)
It is this latter understanding of expressivism which perhaps holds the greater significance within the international criminal law context, as the message that an action sends may be of more immediate interest than the direct consequences of an action within the international community. (192) In fact, expressivism, in this sense, could be an even more effective function of international criminal law than more commonly cited functions like deterrence and retribution. (193) The deterrent ability of international criminal law has long been doubted, both on the specific and general levels. In the case of specific deterrence, a person convicted of crimes of an international character is unlikely ever to be given the opportunity to re-offend on the same level again. In the case of general deterrence, it has regularly been pointed out that those individuals compelled to commit crimes of this nature are unlikely to be the sort of rational actors who consider the possibility of apprehension and prosecution before acting. (194)
As far as the goal of retribution goes, it is impossible for international criminal systems to attempt to prosecute all those responsible in the context of mass criminality, and thus many individuals escape adjudication. (195) In addition, those who do face prosecution and are convicted rarely get sentences truly reflective of the crimes they committed and instead often serve sentences comparable to--or even shorter than--similar but obviously smaller-scaled domestic crimes. (196) Therefore, as these central justifications that guide domestic criminal systems carry far less force at the international level, it has to be questioned what alternatives can fill the void. An increasing number of commentators hold that expressivism may be the solution, as it recognizes the unique ability of international criminal proceedings to convey the values of the international community. (197)
Although expressivism is also important in the domestic context (with the expressivist nature of punishment in particular long being recognized) its importance is increased at the international level given the weight that international criminal institutions attach to the creation of a historical record and the establishment of the truth. (198) This centrality of the formation of an accurate narrative of a relevant event means that the message that is communicated through proceedings is almost as crucial as the proceedings themselves. (199) The enhanced potential of expressivism in international trials is explained by Mark Drumbl, who states that such trials "have a better chance of becoming the kinds of 'popular trials' that define a debate, remind us of the content and value of law, or serve as intergenerational 'signposts' in history." (200) Therefore, although expressivism may resemble deterrence, there is a difference between the two theories in terms of which individuals are targeted. (201) Deterrence is aimed at those persons tempted to commit crimes now or in the near future. Expressivism, on the other hand, is designed to speak to those audiences not yet in this position, those ordinary people who have not yet been exposed to the risk of becoming assimilated into violence, and strengthen their respect for the rule of law. (202)
Considering this perspective, the significance of excluding the charges of gender-based violence becomes more apparent. As crimes of gender-based violence have been historically misunderstood and under-recognized--leading to many harmful consequences for the affected victims--it has become a particularly vital mission of the ICC that it accord appropriate attention and nuance to the prosecution of such crimes. (203) An essential aspect of this mission is that gender-based crimes are accurately represented and described, in such a manner as to ensure that their heinousness and discreteness is highlighted. By declining to confirm the charges of torture and outrages upon personal dignity, the PTC in Bemba sent the message that those aspects of the actions that took place that amounted to torture were not as important as the specific acts of rape. This message is transmitted despite the fact that the PTC claims that these crimes will still be tried, as according to expressivist theory the PTC's intention is not what is relevant, but rather how the action in question is interpreted by others, including the international community and the victims in question. (204)
An argument could be made that subsuming the charges within the rape charges is in fact a positive development, as it stresses the seriousness of rape as compared to the other crimes. However, whilst there is no denying the desirability of highlighting the gravity of rape, subsuming the other charges within the definition of rape does not further this mission so much as deny the discrete harms that the crimes of torture and of outrages to personal dignity inflicted on the victims. (205) Subsuming the other charges under the rape charges assumes that the acts of rape themselves--rather than the effects of such actions or the significance of their having being conducted in public, as well as in the presence of family members--are the only actions deemed worthy of punishment, when for the individuals involved this may not have been the case. In addition, despite the claims that the charges would still go to trial, it seems highly unlikely that such crimes will be dwelt on in detail during the proceedings, as this would surely defeat the intention of the PTC in the first place, which was to ensure the expeditious conduct of the case.
B. Expressivism and Delay
Despite the import of retaining the cumulative charges from the point of view of expressivism, the PTC possibly had good cause to override this goal in favor of ensuring that the proceedings avoided unnecessary delays. The expeditious conduct of proceedings has long been prioritized as an essential objective within the international criminal context. (206) However, this is an aim that arguably has been very rarely realized in practice. (207) The pace of international criminal proceedings has come under near-constant criticism and is a leading reason for the skepticism that some commentators have about the efficacy of international criminal justice and its ability to achieve its goals. (208)
Although efficient proceedings are not a stated aim of the ICC, the Rome Statute does contain enough references to the need to avoid unreasonable delays to suggest that such an aim is indeed an implicit aspiration. Article 67's guarantee of the right of the accused to be tried without undue delay is one of the clearest such statements. (209) It is said that "justice delayed is justice denied," therefore an inefficient and slow court is viewed as somehow less legitimate and not fully dedicated to the principles of due process. (210) The main problems associated with excessive delays are that the state of uncertainty of the accused is prolonged, the quality of evidence may deteriorate, and, finally, the safety of a verdict reached under such circumstances maybe more doubtful, thus undermining public confidence in the particular criminal justice system. (211)
However, the slow nature of international criminal proceedings can be overemphasized. Jean Galbraith points out that when one compares domestic cases of similar complexity (for example cases involving terrorism) to international criminal cases, the pace of the latter compares favorably with that of the former, especially when the difficulties in gathering evidence, the considerable burden of translation and the need to establish a historical record are accounted for. (212) In addition, many of the benefits of international criminal justice, particularly deterrence, but also the promotion of reconciliation, do not accrue in the short term, but rather are only felt with the passage of time. (213) The expressive function of international criminal law also concentrates on the less immediate future, with norm shaping only truly being facilitated over extended time periods. (214) Therefore, delays may not necessarily defeat all of the goals of international criminal justice.
However, whilst the broader societal interest may not be disadvantaged by some degree of delay in proceedings, the interests of the accused and the immediate victims still have to be considered, both of whom may be impacted far less by the expressivist dimension of international criminal law. The question then becomes: when should the aim of expressivism be preferred to the other equally worthy aspiration of ensuring speedy proceedings?
C. The Value of Expressivism in the Bemba Gombo Case
In the present case, had the expressivist aim been given precedence, a number of positive outcomes could potentially have taken place. First; the serious nature of gender-based violence, as a category of crimes deserving of prosecution in the international criminal setting, remains a newly established norm and is thus in need of reinforcement. (215) In particular, the varied forms that gender-based violence can take ought to be given continued recognition so as to avoid the danger that certain gender-based crimes will be properly viewed as heinous, while others will be erroneously perceived as lesser and thus not worthy of investigation and prosecution. In this case, the pain endured as a result of the direct act of rape was different from that suffered by those witnessing the act, and for the victim, the pain of enduring such a violation in public and in the presence of loved ones, was also a different category of pain, more associated with humiliation rather than the violence itself. This separate and grave harm was given explicit recognition in Furundzija and was acknowledged as deserving of prosecution in and of itself. (216)
The real value in differentiating the crimes and acknowledging the multiple and intersecting harms inflicted by gender-based violence is felt not only by the victims themselves, who benefit from having their total experience reflected in the charges brought, but also within the international community, whose attention is directly drawn to the various forms of suffering gender-based violence can inflict. Separating out the public aspect of the crime also ensures that wartime rape does not become viewed as something that needs to take place in a public setting in order for it to attain the gravity necessary for prosecution. This is important to recognize as the norms in relation to rape are still in the process of recognition and are not as firmly settled as those relating to other international crimes. (217)
It is damaging for wartime rape to be defined as something exceptional and wholly different to rape that occurs in non-conflict situations as this can lead to the exclusion of individuals' experiences that do not fit with the perception of how rape in conflict should look. (218) Avoiding the essentialization of women's experiences, in particular, has long been a crucial component of the feminist project as it relates to international criminal law. (219) Although the main objective was once gaining -,risibility for gender-based violence, a main concern for feminism within this sphere is now the furthering of the understanding of this category of crime, particularly the different forms it can take and the varied nature of the harms that can be incurred. (220) Rape and gender-based violence can no longer accurately be referred to as invisible or forgotten crimes, but progress is still needed in increasing appreciation of the nuances of such crimes as well as the continued emphasis of their heinousness.
The feminist project is thus not solely concerned with gaining recognition for gender-based violence, but rather with gaining recognition for the totality of an individual's experiences in war. (221) Rape was once the hidden aspect of this experience, but now other related harms such as the torture and outrage to dignity that result from a public act of sexual violence, both to the direct victim and those who witness the act, bear a greater risk of being concealed. In fact, for some victims, the act of rape in itself was perhaps not the most enduring harm they suffered; instead, the damage wrought to their families could have an even more profound personal effect. (222) Karen Engle has drawn attention to the particularly harrowing effects of witnessing the torture or suffering of family members, and how this can amount to a more lasting harm than sexual assaults suffered personally. (223) Engle notes a statement made by a participant in a 1992 investigation into the mass rapes in Bosnia and Herzegovina, which explained that, for many individuals, "the sexual assault represents one aspect, but not necessarily the most significant, amongst other forms of degrading and humiliating treatment," and, included among acts that affected certain individuals more profoundly was "witness[ing] the torture and death of family members." (224) In simply opting to prosecute rape, the ICC obscures the many other ways by which the affected individuals in the Bemba case were victimized and prioritizes one type of harm, which, although egregious, may not in reality have been the most distressing harm these particular victims were subjected to.
The value offered by this recognition would have been that the full breadth of a particular victim's suffering would have been acknowledged, and thus the crimes prosecuted would have conformed to the victim's perception of the events that took place. (225) The historical record that the trials produce also gives effect to this perception, which may aid the entrenchment of norms in this regard. Although it could be argued that charging Bemba with rape only offered an important symbolic recognition of the gravity of rape--which is still uncommon enough to be eagerly received--retaining the torture and outrages to dignity charges would not have diminished the significance of confirming the rape charges.
In fact, separating the crime of rape from the offenses of torture and of outrages upon personal dignity would have served to highlight the particularity of the violence rape inflicts as compared to the other offenses. To illuminate one category of harm suffered in lieu of others serves only to essentialize the experiences of victims, particularly women. It is vital that a complex and accurate narrative of victims' experiences be reflected in the charges brought if the Court can truly hope to realize its norm-building capacity.
Dissection of the reasoning employed by the PTC in Bemba shows evidence that could have supported the retention of the cumulative charges relating to gender-based violence. In particular, the application of the Celebici test raises questions, as, contrary to the PTC's holding, the crimes in question do appear to have distinct elements when applied to the witnesses in this particular case. Had the PTC adopted a more accommodating approach to cumulative charging, the charges brought would have more accurately described the experiences of the victims concerned, and in the process an important message would have been communicated regarding the particularity of the offenses for which the defendant was responsible and the complex and varied nature of gender-based violence.
In arriving at its decision, the PTC was chiefly motivated by a desire to avoid delay. (226) Although the need to avoid unnecessary delay is a critical one that goes to the ICC's legitimacy, not all delays are detrimental to the goals of international justice. The threat to international criminal justice presented by delays has occasionally been overstated, without sufficient consideration for die achievable goals of international justice. International criminal justice will continue to struggle with traditional goals such as retribution and deterrence, but aims relating to norm establishment and aiding reconciliation could prove more attainable and, crucially, are not dependent on timely proceedings for their realization. While avoidable delays should never become standard practice, adopting particular courses of action that may have damaging long-term effects should not be justified simply on the grounds of efficiency. Thus, the PTC should have reconsidered the weight it attached to this goal, for in its attempt to achieve it the significance of the case from the perspective of gender justice was reduced.
Undoubtedly, the PTC has to be given credit for confirming the rape charges in this case, particularly when the tendency of international criminal tribunals to drop gender-related charges altogether from indictments is considered. This decision in itself carries important expressive significance, signaling the commitment of the ICC to the prosecution of gender-based crimes. However, if the Chamber had retained all of the charges as framed by the Prosecutor, the message projected would have had an even greater potency, as the differing forms of gender-based violence that the victims in this case suffered would have been explicitly recognized, and thus a more evolved attitude to this form of violence would have been exhibited.
(1.) Nisha Valabhji, Cumulative Convictions Based on the Same Acts Under the Statute of the I.C.T.Y., 10 TUL. J. INT'L & COMP. L. 185, 185-86 (2002).
(2.) See Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Combo, [paragraph][paragraph] 72, 212 (June 15, 2009), http://www.icc-cpi.int/iccdocs/doc/ doc617110.pdf [hereinafter Bemba Confirmation of Charges Decision].
(3.) See WAR CRIMES RESEARCH OFFICE, THE PRACTICE OF CUMULATIVE CHARGING AT THE INTERNATIONAL CRIMINAL COURT (2010), available at http://www.wcl.american.edu/warcrimes/icc/ documents/WCRO_Report_May2010.pdf [hereinafter WCRO REPORT]. See also Brigid Inder, Kate Orlovsky & Katrina Anderson, in Prosecutor v. Bemba, Disturbing ICC Decisions On Gender-Based Crime, INT'L LAW GRRLS: VOICES ON INTERNATIONAL LAW, POLICY & PRACTICE (Oct. 12, 2009), http: //intlawgrrls.blogspot.com/2009/10/in-prosecutor-v-bemba-disturbing-icc.html.
(4.) Cf. WCRO REPORT, supra note 3, at 2.
(5.) See Bemba Confirmation of Charges Decision, supra note 2, [paragraph] 200.
(6.) Cf. Rome Statute of the International Criminal Court art. 67(1)(c), July 17, 1998, 2187 U.N.T.S. 90, 37, http://untreaty.un.org/cod/icc/statute/english/rome_statute(e).pdf [hereinafter Rome Statute].
(7.) See Brian Farrell, The Right to a Speedy Trial Before International Criminal Tribunals, 19 S. AFRCA J. HUM. RTS. 98, 100 (2003) ("General principles of law are those principles of domestic law that are, through legal reasoning and analogy, applied by international criminal tribunals."). See also Rome Statute, supra note 6, art. 67.
(8.) M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 DUKE J. COMP. & INT'L L. 235, 285 (1993).
(9.) See Alex Whiting, In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered, 50 HARV. INT'L. L. J. 323, 331 (2009) (referring to MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS: FACING HISTORY AFTER GENOCIDE AND MASS VIOLENCE 12 (1998)).
(10.) Attila Bogdan, Cumulative Charges, Convictions and Sentencing at the Ad Hoc International Tribunals for the Former Yugoslavia and Rwanda, 3 MELB. J. INT'L L. 1, 2 (2002).
(11.) See WCRO REPORT, supra note 3.
(12.) See Beth Van Schaak, Obstacles on the Road to Gender Justice: The International Criminal Tribunal for Rwanda as Object Lesson, 17 AM. U.J. GENDER SOC. POL'Y & L. 361, 381 (2009).
(13.) See Diane Marie Amann, Group Mentality, Expressivism & Genocide, 2 INT'L CRIM. L. REV. 93, 95 (2002) [hereinafter Amann, Group Mentality].
(14.) See id. at 118. See also Cass R. Sunstein, On the Expressive Function of the Law, 144 U. PA. L. Rev. 2021, 2025-26 (1996).
(15.) Cf. Amann, Group Mentality, supra note 13, at 121.
(16.) Margaret deGuzman, Bensouda on ICC Prosecutions, INT'L LAW GRRLS, (Mar. 13, 2011), http://www.intlawgrrls.com/2011/03/bensouda-on-icc-prosecutions.html.
(17.) Bemba Confirmation of Charges Decision, supra note 2.
(18.) Prosecutor v. Jean-Pierre Bemba Combo, Case No. ICC-01/05-01/08, Decision on the Prosecutor's Application for Leave to Appeal the "Decision Pursuant to Article 61 (7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Combo," (Sept. 18, 2009), http://www.icc-cpi.int/iccdocs/doc/doc745391.pdf [hereinafter Decision on the Prosecutor's Application for Leave to Appeal].
(19.) Cf. ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 261 (2010).
(23.) Id. at 261-63.
(24.) See Susan Walther, Cumulation of Offences, in THE ROME STATUTE OF THE NATIONAL CRIMINAL COURT: A COMMENTARY 475, 476 (Antonio Cassese, Paola Gaeta & John R.W.D. Jones eds., 2002).
(26.) Fulvio Maria Palombino, Note, Should Genocide Subsume Crimes Against Humanity? Some Remarks in the Light of the Krstic Appeals Judgment, 3 J. INT'L CRIM. JUST. 778, 779 (2005).
(27.) Id. See also Walther, supra note 24, at 476.
(28.) See generally Bogdan, supra note 10.
(29.) Prosecutor v. Delalic (Celebici case), Case No. IT-96-21-A, Judgment, [paragraph] 400 (Int'l Crim. Trib. for the Former Yugoslavia Feb. 20, 2001), www.icty.org/x/cases/mucic/acjug/en/celaj010220.pdf [hereinafter Celebici Judgment]. See also Prosecutor v. Jelisic, Case No. IT-95-10-T, Judgment, [paragraph] 78 (Int'l Crim. Trib. for the Former Yugoslavia July 5, 2001), www.icty.org/x/cases/jelisic/tjug/en/jel-tj991214e.pdf; Prosecutor v. Krstic, Case No. IT-98-33, [paragraph] 659, Judgment (Int'l Crim. Trib. for the Former Yugoslavia Aug. 2, 2001), www.icty.org/x/cases/krstic/acjug/en/krsaj040419e.pdf; Prosecutor v. Brima, Case No. SCSL-2004-16-A, Appeals Judgment, [paragraph] 212 n.327 (Spec. Ct. for Sierra Leone Feb. 22, 2008), http://www.sc-sl.org/LinkClick-asPX?fileticket=cXQsdy BfVgg%3d&tabid=173 [hereinafter Brima Judgment]; Prosecutor v. Kaing Guek Eav, Case No. 001/18-07-2007-ECCC/OCIJ, Decision on Appeal Against Closing Order Indicting Kaing Guek Eav alias "Duch," [paragraph] 85 (Extraordinary Chambers in the Courts of Cambodia Dec. 5 2008), http:// www.cambodiatribunal.org/sites/default/files/resources/d99-3-42en.pdf [hereinafter Duch Decision].
(30.) Celebici Judgment, supra note 29, [paragraph] 412.
(31.) See Valabhji, supra note 1.
(32.) Bemba Confirmation of Charges Decision, supra note 2; Rome Statute, supra note 6, arts. 7(1)(a), (g), and (f).
(33.) Rome Statute, supra note 6, arts. 8(2) (c) (i), (ii) and 8(2) (e) (vi), (v).
(34.) Bemba Confirmation of Charges Decision, supra note 2, 7 [paragraph][paragraph] 72, 212.
(35.) Id. [paragraph] 200.
(36.) Id. [paragraph] 201 (recalling the view that the PTC had expressed earlier in Prosecutor v. Jean-Pierre Bemba Combo, Case No. ICC-01/05-01/08, Decision on the Prosecutor's Application for a Warrant of Arrest against Jean-Pierre Bemba Combo, (June 10, 2008), http://www.worldcourts.com/icc/eng/decisions/2008.06.10_Prosecutor_v_Bembal.pdf).
(37.) Bemba Confirmation of Charges Decision, supra note 2, 7 [paragraph][paragraph] 201-02.
(38.) Id. [paragraph] 202.
(40.) Id. [paragraph] 203.
(41.) Regulation 55(1), Regulations of the Court, Adopted by the Judges of the Court on May 26, 2004, As Amended on Nov. 14, 2007, Official Documents of the International Criminal Court, ICC-BD/01-02-07, http://www.icc-cpi.int/NR/rdonlyres/DF5E9E76-F99C-410A-85F4-01C4A2CE300C/0/ ICCBD010207ENG.pdf [hereinafter Regulations of the Court, Amended Nov. 14, 2007] (entered into force Dec. 18, 2007). Since Bemba, the ICC has amended its Regulations; for the most current version, see Regulations of the Court, Adopted by. the Judges of the Court on Mar 26, 2004, As Amended on Nov. 2, 2011, Official Documents of the International Criminal Court, ICC-BD/01-03-11, http:// www.icc-cpi.int/NR/rdonlyres/50A6CD53-3E8A-4034-BSA9_8903CD9CDC79/0/RegulationsOf TheCourtEng.pdf (entered into force June 29, 2012).
(42.) Bemba Confirmation of Charges Decision, supra note 2, [paragraph] 203.
(43.) Id. [paragraph] 197.
(45.) Id. [paragraph] 205.
(46.) Id. [paragraph] 204.
(48.) Id. [paragraph] 209.
(49.) Id. [paragraph] 299 (the intention to inflict pain or suffering for such purposes as obtaining information or a confession, punishment or coercion or for any reason based on discrimination of any kind).
(50.) Rome Statute, supra note 6, art. 61 (3) ("Within a reasonable time before the hearing, the person shall: (a) Be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial; and (b) Be informed of the evidence on which the Prosecutor intends to rely at the hearing.")
(51.) Bemba Confirmation of Charges Decision, supra note 2, [paragraph] 300 ("[the] document containing the charges shall include a statement of facts"); Regulation 52(b), Regulations of the Court, Amended Nov. 14, 2007, supra note 42 ("The document containing the charges referred to in article 61 [of the Rome Statute, supra note 6] shall include: ... (b) A statement of the facts, including the time and place of" the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial, including relevant facts for the exercise of jurisdiction by the Court....").
(52.) Bemba Confirmation of Charges Decision, supra note 2, [paragraph] 302.
(53.) Id. [paragraph] 308. The Prosecutor stated that the crime of outrages upon personal dignity was fulfilled because "MLC soldiers humiliated, degraded and violated the dignity of civilians by (1) gang-raping them, (2) raping them at gunpoint, (3) ripping off their clothes before the rape, (4) raping them in front of their families or in public, and (5) because of the powerlessness of the families witnessing the rapes, (6) the severity of the rapes and (7) the impact of the rapes on the families of rape victims and the CAR population in general." Id.
(54.) Id. [paragraph] 310.
(55.) Id. [paragraph] 311.
(57.) Decision on the Prosecutor's Application for Leave to Appeal, supra note 18.
(58.) Id. [paragraph] 34.
(59.) Id. [paragraph] 35.
(60.) Id. [paragraph] 63.
(61.) Id. [paragraph] 15. See also Rome Statute, supra note 6, art. 82(1) (d) ("Either party may appeal ...: (d) A decision that 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."), in order for leave to appeal to be granted, the Prosecutor was required to illustrate that the issue affected both the fair and expeditious conduct of the proceedings and the outcome of the case. These requirements are cumulative, thus the fairness of the proceedings has to be affected, as well as the expeditiousness, and also the outcome of the case. Failure to satisfy any of these elements would result in leave for appeal being refused. In addition, the relevant chamber must be satisfied that the resolution of the issue would materially advance the proceedings.
(62.) Decision on the Prosecutor's Application for Leave to Appeal, supra note 18, [paragraph] 14.
(63.) Id. [paragraph] 36.
(64.) Id. [paragraph] 37.
(65.) Id [paragraph] 38.
(66.) Id. [paragraph] 39.
(67.) Id. [paragraph] 40.
(68.) Id. [paragraph] 43.
(69.) Prosecutor v. Jean-Pierre Bemba Combo, ICC-01/05-01/08, Amicus Curiae Observations of the Women's Initiatives for Gender Justice pursuant to Rule 103 of the Rules of Procedure and Evidence (July 31, 2009), http://www.icc-cpi.int/iccdocs/doc/doc719028.pdf [hereinafter WIGJ Amicus Observations].
(70.) Decision on the Prosecutor's Application for Leave to Appeal, supra note 18, [paragraph] 46; WIGJ Amicus Observations, supra note 69, [paragraph][paragraph] 35-39. The WIGJ also offered observations on Regulation 55, which the WIGJ felt was not applicable law under article 21 (3) of the Rome Statute given the administrative nature of the Regulations of the Court. Additionally, observations were submitted on article 21 (3) more broadly, which states that the ICC is required to apply its law in conformity with international human rights law (in particular, in this case, the Convention on the Elimination of all forms of Discrimination Against Women and the Convention on the Rights of the Child) and without any adverse distinction on a number of listed grounds including gender. By applying the cumulative charging principle too restrictively, the PTC was denying gender-based violence victims access to "effective justice" and was thus, in the opinion of the WIGJ, contravening this article. "Effective justice" is defined as involving the application of norms of international humanitarian law to women and children. Id. [paragraph] 37.
(71.) Decision on the Prosecutor's Application for Leave to Appeal, supra note 18, [paragraph] 49.
(72.) Id. [paragraph][paragraph] 51-53.
(73.) Id. [paragraph] 52.
(74.) Id. [paragraph] 56.
(75.) Id. [paragraph] 57.
(77.) Id. [paragraph][paragraph] 58-59.
(78.) Id. [paragraph] 60.
(79.) Id. [paragraph][paragraph] 61-62.
(80.) Id. [paragraph][paragraph] 78-87.
(81.) Id. [paragraph] 52.
(82.) Id. [paragraph] 53.
(83.) Id. [paragraph] 52.
(84.) David Scheffer, A Review of the Experiences of the Pre-Trial and Appeals Chambers of the International Criminal Court Regarding the Disclosure of Evidence, LEIDEN J. INT'L L. 151, 152 (2008).
(85.) Id. at 153.
(86.) See WCRO REPORT, supra note 3, at 4.
(87.) Rome Statute, supra note 6, art. 58(2) (b).
(88.) Id. art. 54(1)(b).
(89.) See id. art. 42(1) (providing that the Prosecutor "shall be responsible for receiving referrals and any substantial information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court"); id. art 54(1)(b) ("The Prosecutor shall take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court.").
(90.) See WCRO REPORT, supra note 3, at 23.
(91.) Rome Statute, supra note 6, art. 61(7)(a).
(92.) Id. art. 61(7)(b).
(93.) Id. art. 61(7)(c).
(94.) Decision on the Prosecutor's Application for Leave to Appeal, supra note 18, [paragraph] 55.
(95.) See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Court, June 15-July 17, 1998, Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. Doc. A/51/22 art. 58(4)(b) (Apr. 14, 1998). See also WCRO REPORT supra note 3, at 24.
(96.) Decision on the Prosecutor's Application for Leave to Appeal, supra note 18, [paragraph] 52.
(98.) Celebici Judgment, supranote 29.
(99.) See Bemba Confirmation of charges decision, supra note 2, [paragraph] 202.
(100.) WIGJ Amicus Observations, supra note 69, [paragraph] 25.
(102.) Id. [paragraph] 26.
(103.) See Bemba Confirmation of Charges Decision, supra note 2, [paragraph] 205 (the torture element of "infliction of severe physical or mental pain or suffering" was subsumed by the rape element of "sexual penetration," and the torture element of "control and custody" was covered under rape's "force or coercion" element).
(104.) Rome Statute, supra note 6, art. 7(1) (f) (defining "torture" as a crime against humanity, "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack"); id. art. 7(2)(e) ("'Torture' means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; ....").
(105.) Id. art. 8 (1) (granting the ICC jurisdiction over war crimes "when committed as part of a plan or policy or as part of a large-scale commission of such crimes"); id. art. 8(2)(a)(ii) (designating "[t]orture or inhuman treatment" as a war crime).
(106.) Id. art 8(2) (c) (i) (in a non-international armed conflict, the definition of war crimes includes "[v]iolence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture ..." when carried out against noncombatants).
(107.) Id. art. 7(1)(g) (defining "rape" as a crime against humanity when it is knowingly committed as part of a systematic attack on civilians); id. art. 8 (2) (b) (xxii) (defining war crimes, in part, as "serious violations of the laws and customs applicable in international armed conflict," including "[c]ommitting rape ..., or any other form of sexual violence also constituting a grave breach of the Geneva Conventions"). See also Rome Statute Elements of Crimes Annex, art. 7(1)(g)-1, ICC-ASP/1/3, 108, www.icc-cpi.int/NR/rdonlyres/9CAEE830-38CF41D6-ABOB68ESFg082543/0/Element_of_Crimes_English.pdf (setting forth the elements of the "crime against humanity of rape," which are that "It]he perpetrator invaded the body of a person by conduct resulting in penetration ... [,] [t]he invastion was committed by force, or by threat of force or coercion ... [,] [t] he conduct was committed as part of a widespread or systematic attack directed against a civilian population [, and] [t]he perpetrator knew that the conduct was part of [such a systematic attack]"); id. art. 8(2) (b) (xxii)-1 (setting forth the elements of the "war crime of rape," the first two of which are identical to those of the "crime against humanity of rape," and the latter two requiring that the "conduct took place in the context of and was associated with an international armed conflict [and that] [t]he perpetrator was aware of [the conflict's existence]").
(108.) Id. art. 7(1)(g)-1 n.16 (noting that "a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity").
(109.) WIGJ Amicus Observations, supra note 69, [paragraph] 26.
(111.) Id. See also Bemba Confirmation of Charges Decision, supra note 2, [paragraph] 174 (describing the crimes committed against the ten year-old witness, stating that she "was raped in succession by two MLC soldiers in Begoa (PK 12) at the 'end of November 2002' ... [and that] [t]he rape occurred behind [the ten year-old's father's] house in a small shelter [after] a group of MLC soldiers entered his house and ... [she] was taken by force outside the house by the MLC soldiers." Her father reported that, "[a]fterwards, [he] saw blood on his daughter's dress...').
(112.) WIGJ Amicus Observations, supra note 69, [paragraph] 27.
(113.) Id. [paragraph] 28.
(114.) Prosecutor v. Furundzija, Case No. IT-95-17/I-T, Trial Chamber Judgment (Int'l Crim. Trib. for the Former Yugoslavia Dec. 10, 2008), www.icty.org/x/cases/furundzija/gug/en/fur-9981210e.pdf [hereinafter Furundzija Judgment].
(115.) See id. [paragraph] 267(i), (ii).
(116.) See Kelly Dawn Askin. The International War Crimes Trial of Anto Furundzija: Major Progress Toward Ending the Cycle of Impunity for Rape Crimes, 12 LEIDEN J. INT'L L. 935, 950 (1999) [hereinafter Askin, Trial of Anto Furundzija].
(117.) Furundzija Judgment, supra note 114, [paragraph] 267.
(118.) See Askin, Trial of Anto Furundzija, supranote 116, at 947.
(119.) Id. (emphasis added).
(120.) See id. at 943.
(122.) Bemba Confirmation of Charges Decision, supra note 2.
(123.) See Celebici Judgment, supra note 29.
(124.) See Rhonda Copelon, Gender Crimes as War Crimes: Integrating Crimes Against Women into International Criminal Law, McGILL L.J. 217, 220 (2000).
(125.) See generally Stephanie Wood, A Woman Scorned for the "Least Condemned" War Crime: Precedent and Problems with Prosecuting Rape as a Serious War Crime in International Criminal Tribunal for Rwanda, 13 Colum. J. GENDER & L. 274 (2004).
(126.) Id. at 302-307.
(127.) See Kelly Dawn Askin, Prosecuting Wartime Rape and other Gender Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles, 21 BERKELEY J. OF INT'L L. 288 (2003) [hereinafter Askin, Prosecuting Wartime Rape]; Catherine MacKinnon, Rape as Nationbuilding, in CATHERINE MAcKINNON, "ARE WOMEN HUMAN?" AND OTHER INTERNATIONAL DIALOGUES 169, 170 (2006); Copelon, supra note 124, at 22-23.
(128.) See Askin, Prosecuting Wartime Rape, supra note 127, at 298.
(129.) See MacKinnon, supra note 127, at 171.
(130.) WIGJ Amicus Observations, supra note 69, [paragraph] 29.
(131.) See Rome Statute Elements of Crimes Annex, supra note 107, arts. 7(1)(g)-1 (crime against humanity of rape), 8(2) (b) (xxii)-1 (war crime of rape), and 8(2) (e) (vi)-1 (war crime of rape).
(132.) See Rana Lehr-Lehnardt, One Small Step for Women: Female Friendly Provisions in the Rome Statute of the International Criminal Court, 16 BYU J. PUB. L. 317, 341 (2002).
(133.) See id.
(134.) Regulation 55, Regulations of the Court, Amended Nov. 14, 2007, supra note 41.
(135.) Bemba Confirmation of Charges Decision, supra note 2, [paragraph] 203.
(137.) WCRO REPORT, supra note 3, at 26.
(138.) See id. at 31.
(139.) See id. at 26.
(142.) Carsten Stahn, Modification of the Legal Characterisation of Facts in the ICC System: A Portrayal of Regulation 55, 16 CRIM. L.F. 1 (2005)
(144.) See Rome Statute, supra note 6, art. 74(2) ("Requirements for the Decision.").
(145.) Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Appeals Chamber Judgment on the Appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled "Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts May Be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court" (Dec. 8, 2009), http://www.icc-cpi.int/iccdocs/doc/doc790147.pdf [hereinafter Lubanga AC Decision on Regulation 55].
(146.) Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Trial Chamber I Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts May Be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court (July 14, 2009), http://www.icc-cpi.int/iccdocs/doc/doc710538-pdf.
(147.) See id. [paragraph][paragraph] 2 7-28.
(149.) Id. However, the PTC did highlight the "different and specific safeguards set out in Regulations 55(2) and (3)," which include a requirement to give notice to the participants that the legal characterisation of the facts may be subject to change and to provide them with the opportunity to make oral and written submissions. Suspension of the hearing would also be available as an option in order to ensure that the participants have adequate time to make such submissions. Id. [paragraph] 29.
(150.) See Lubanga AC Decision on Regulation 55, supra note 145, [paragraph] 88.
(151.) Id. [paragraph] 77. See also id. [paragraph][paragraph] 89-98 (describing how the TC's interpretation of Regulation 55 interferes with the Rome Statute, supra note 6, arts. 21(3), 74(2), 61(9), as well as Regulation 52).
(152.) Id. [paragraph] 94.
(153.) WCRO REPORT, supra note 3, at 27.
(156.) Bemba Confirmation of Charges Decision, supra note 2, [paragraph] 202.
(157.) Id. See also Rome Statute, supra note 6, art. 61 ("Confirmation of the Charges Before the Trial.").
(158.) Cf. WCRO REPORT, supra note 3, at 2.
(159.) See Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber I Judgment, [paragraph] 462 (Sept. 2, 1998) [hereinafter Akayesu Judgment].
(160.) See id. [paragraph][paragraph] 463-468. See also Prosecutor v. Tadic, Case No. IT-94-1-T, Trial Chamber II Judgment (Int'l Crim. Trib. for the former Yugoslavia Nov. 14, 1995) (holding that accumulation was an issue best dealt with at the sentencing stage, as it is only then that the matter becomes "relevant"); Akayesu Judgment, supra note 159, [paragraph] 463.
(161.) Akayesu Judgment, supra note 159, [paragraph] 468.
(163.) See Bogdan, supra note 10, at 20.
(164.) Celebici Judgment, supra note 29, [paragraph] 400.
(165.) See id. [paragraph] 412.
(167.) Hong S. Wills, Comment, Cumulative Convictions and the Double Jeopardy Rule: Pursuing Justice at the ICTY and ICTR, 17 EMORY INT'L L. REV. 341, 361-364 (2003).
(168.) Prosecutor v. Kupreskic, Case No. IT-95-16-T, Judgment (Int'l Crim. Trib. for the Former Yugoslavia Jan. 14, 2000), www.icty.org/x/cases/kupreskic/tjug/en/kup-tj000114e.pdf.
(169.) Id. [paragraph] 722.
(170.) Id. [paragraph] 724.
(171.) Id. [paragraph] 725.
(172.) Id. [paragraph] 726.
(173.) Id. [paragraph] 727.
(175.) Bemba Confirmation of Charges Decision, supra note 2, [paragraph] 202 (emphasis added).
(176.) See Wills, supra note 167, at 352.
(177.) Brima Judgment, supra note 29, [paragraph] 212 n.327.
(178.) Duch Decision, supra note 29. In this case the issue was whether the domestic crimes of torture and premeditated murder could be Included in the indictment along with the international crimes of torture and murder, as both sets of charges were based on the same facts. Id.
(179.) Id. [paragraph] 87.
(181.) See WCRO REPORT, supra note 3, at 9-10.
(182.) Celebici Judgment, supra note 29, [paragraph] 412; Brima Judgment, supra note 29, [paragraph] 212; Duch Decision, supra note 29, [paragraph] 88.
(183.) WCRO REPORT, supra note 3, at 2. See also Celebici Judgment, supra note 29, [paragraph] 405.
(184.) Decision on the Prosecutor's Application for Leave to Appeal, supra note 18, [paragraph] 56.
(185.) Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503, 1504 (2000).
(186.) Sunstein, supra note 14, at 2051. For a more skeptical view of law's expressive ability, see Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. PA. L. REV. 1363 (2000).
(187.) See Anderson & Pildes, supra note 185, at 1506.
(188.) Sunstein, supra note 14, at 2025.
(189.) Id. at 2026-27.
(190.) Id. at 2027.
(191.) Id. at 2027-28.
(192.) See Diane Marie Amann, Message as Medium in Sierra Leone, 7 ILSA J. INT'L & COMP. L. 237, 238 (2001). See also Mark A. Drumbl, The Expressive Value of Prosecuting and Punishing Terrorists: Hamdan, the Geneva Conventions, and International Criminal Law, 75 GEO. WASH. L. REV. 1165, 1181 (2007) [hereinafter Drumbl, Expressive Value of Prosecuting.
(193.) Cf. Amann, Group Mentality, supra note 13, at 117.
(194.) Mirjan Damaska, The Henry Morris Lecture, What is the Point of International Criminal Justice?, 83 CHI.-KENT L. REV. 329, 344-345 (2008). Damaska states that the number of rational actors who commit crimes is fewer in in the international, as opposed to the national, context because "the number of coolly rational calculators of costs and benefits may regrettably be considerably smaller among those who commit international crimes than among those who commit crimes that constitute the staple of domestic criminal law enforcement. The conflicts with which international criminal justice is concerned often engage powerful passions--even self-transcending behavioral motives--and tend to involve individuals who are ready to accept the risk of punishment. To use an extreme, but by no means rare example, it is not clear how deterrence could work against people who regard death in pursuit of their actions as vindication and beatification." Id.
(195.) See Mark A. Drumbl, Collective Violence and Individual Punishment: The Criminality of Mass Atrocity, 99 NW. U. L. REV. 539, 578 (2005).
(196.) See id.
(197.) See Drumbl, Expressive Value of Prosecuting, supra note 192, at 1195. See also Amann, Group Mentality, supra note 13, at 121.
(198.) See Drumbl, Expressive Value of Prosecuting, supra note 192, at 1195.
(199.) See id.
(200.) See id. at 1197 (referring in particular to the place that Nuremberg occupies in the public consciousness).
(201.) See id. at 1183.
(202.) See id.
(203.) See Copelon, supra note 124, at 239-240.
(204.) See Sunstein, supra note 14, at 2022 ("What the agent will be communicating, or be taken to mean, may or may not have a great deal to do with his particular intentions. In this sense, the meanings of actions are not fully within the agent's control.").
(205.) See Doris E. Buss, The Curious Visibility of Wartime Rape: Gender and Ethnicity in International Criminal Law, 25 WINDSOR Y.B. ACCESS JUST. 3, 22 (2007) [hereinafter Buss, Curious Visibility of Wartime Rape] (referring to the complex and varied forms of war time sexual violence, "sexual violence against women in armed conflict is not a singular, uniform phenomenon, though the tendency in international law, and elsewhere, is to treat it thus. Sexual violence against women takes different forms and has multiple social, economic, and political contexts in which the gendered nature of the harm intersects with, and is shaped by other axes of oppression...").
(206.) See Whiting, supra note 9, at 325-326.
(207.) See Jean Galbraith, The Pace of International Criminal Justice, 31 MICH. J. INT'L L. 79, 80-81 (2010).
(208.) See id.
(209.) Rome Statute, supra note 6, arts. 67(1)(c), 64(2) ("The Trial Chamber shall ensure that a trial is fair and expeditious....").
(210.) See Roger Gamble & Noel Dias, "Justice is Sweetest When it is Freshest: "The Right to a Trial Without Unreasonable Delay, 19 SRI LANKA J. INT'L L. 557, 562 (2007).
(211.) Id. at 561 (setting out the reasons as to why a person should tried without undue delay, referring to Lord Steyn in Mills v. HM Advocate,  UKPC D2,  1 A.C. (H.L.) 44 (appeal taken from Scot.)).
(212.) Galbraith, supra note 207, at 142.
(213.) Whiting, supra note 9, at 334.
(215.) See Margaret M. deGuzman, Giving Priority to Sex Crime Prosecutions: The Philosophical Foundations of a Feminist Agenda, 11 INT'L CRIM. L. REV. 515, 525-26 (2011).
(216.) See Furundzija Judgment, supra note 114, [paragraph] 272. See also Askin, Trial of Anto Furundzija, supra note 118, at 952.
(217.) See deGuzman, supra note 215, at 525-26.
(218.) See Doris Buss, Rethinking "Rape as a Weapon of War," 17 FEM. LEG. STUD. 145, 160-61 (2009), available at http://ssrn.com/abstract=1373975.
(219.) See generally id.; Karen Engle, Feminism and Its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina, 99 AM. J. INT'L L. 778, 807-08 (2005).
(220.) See Engle, supra note 219, at 807-08.
(221.) See Buss, Curious Visibility of Wartime Rape, supra note 205, at 22.
(222.) See Vesna Nikolic-Ristanovic, Sexual Violence, International Law and Restorative Justice, in INTERNATIONAL LAW: MODERN FEMINIST APPROACHES 273, 287 (Doris Buss & Ambreena Manji eds., 2005) (criticizing the narrow focus taken by international criminal law on women's sexual and reproductive identities to the exclusion of other harms they may suffer during armed conflict).
(223.) See Engle, supra note 219, at 813.
(224.) Id. (referring to Gillian Mezey, Rape in War, 5 J. FORENSIC PSYCHIATRY 583, 585 (1994)).
(225.) See Amann, Group Mentality, supra note 13, at 131 (discussing the value of labelling crimes as genocide from the perspective of victims).
(226.) See Bemba Confirmation of Charges Decision, supra note 2, [paragraph] 202; Decision on Prosecutor's Application for Leave to Appeal, supra note 18, [paragraph] 60.
FIONA O'REGAN, Ph.D. Candidate, University College Cork; Irish Research Council Postgraduate Scholar. I would like to thank my supervisors Prof. Siobhan Mullally and Dr. Fiona Donson for their comments and assistance with this Article, as well as the reviewers at the Georgetown Journal of International Law. [c] 2012, Fiona O'Regan.…