Call for Comments: ICC OTP Draft Policy Paper on Sexual and Gender based Crimes

About the author(s):

Katharine Fortin

Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.

On 7th February 2014, the Office of the Prosecutor of the International Criminal Court (ICC) published a draft Policy Paper on Sexual and Gender Based Crimes. The Office has said that it welcomes any comments on the draft and asked that they be sent to the following email address: OTPLegalAdvisorySection@icc-cpi.int

It would be a worthwhile exercise to compare the ICC Policy Paper with the ICTR’s recent manual  on best practices in the prosecution of sexual violence crimes in post-conflict regions which was published on 30 January 2014. While in an ideal world the drafters of the ICC OTP policy paper would have taken the conclusions of the ICTR manual into account, the close timing of the two publications may mean that this has not yet happened.

The contents page of the ICC OTP’s policy paper is as follows:-

I. Introduction

II. General Policy

III. The Regulatory Framework

(a) The Statute

(i) Article 6 – Genocide

(ii) Article 7 – Crimes against humanity

(iii) Article 8 – War crimes

(b) Rules of Procedure and Evidence

(c) The prosecutorial strategy

IV. Preliminary Examinations

V. Investigations

(a) Initiation of an investigation

(b) Preparation

(c) Investigation practices

VI. Prosecutions

(a) Charging

(i) Crimes charged

(ii) Mode of liability

(iii) Mental elements: article 30

(b) Witness preparation

(c) Measures to protect safety, and physical and psychological well-being of witnesses

(i) General obligations during proceedings

(ii) Disclosure of evidence

(iii) In-court measures

(d) Evidence

(e) Sentencing

(f) Reparations

VII. Cooperation

(a) External relations

(b) Public information

VIII. Institutional Development

(a) Recruitment and institutional arrangements

(b) Staff training

The deadline for comments is 23 February 2014. Following consideration of the comments received and any appropriate amendments to the draft, the final version of the policy is due to be launched in early March 2014.

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