September 4, 2009 – Today, Judge Trendafilova of the International Criminal Court (ICC) denied a petition filed by the Center for Constitutional Rights (CCR), the International Women's Human Rights Clinic (IWHR) and a prominent group of individuals and organizations requesting to file an amicus brief in the case of Jean-Pierre Bemba. The amicus would call on the ICC to confirm a charge that counts rape and other sexual violence as torture; the pre-trial chamber dismissed this original charge saying that it was cumulative to the charge of rape. The group argues that the dismissal of the charge fails to fully recognize that acts of sexual and gender-based violence, including rape, are serious violations of international law. Amici are concerned that the progress that has been made in recognizing sexual and gender violence as forms of torture is at risk.

“It is regrettable that we are not able to submit our amicus brief at this juncture,” said CCR board member Rhonda Copelon, director of the IWHR at the City University of New York School of Law, which served as counsel for the amici. “We anticipate the court will grant the appeal and that we will be able to intervene at that time. We urge the court to recognize the gravity of rape and other sexual violence as torture.”

The Prosecution had qualified the allegations of rape under the Rome Statute of the ICC both as “rape” (as both a war crime and crime against humanity), and as a form of torture. In its decision, the pre-trial chamber of the ICC declined to confirm the charges of torture, with the explanation that “evidence…presented reflects the same conduct that underlies the count of rape” and “the act of torture is fully subsumed by the count of rape.” The Prosecution has requested that the appeals chamber review the decision by the pre-trial chamber.

“This decision is a disappointment,” said CCR attorney Katherine Gallagher. “The pre-trial chamber’s decision undermines the obligation of the ICC to provide gender-inclusive justice.”

Notably, defendant’s request for provisional release relied in part on the dismissal of the charge of torture, which illustrates amici’s point that not charging rape-as-torture dilutes the gravity of rape. The defense urged the accused’s release pending trial in part on the basis that the rejected charges resulted in “marked change with respect to (1) the gravity of the crimes and severity of the possible sentence incurred....”

The petition that was denied requested permission to file an amicus brief with the ICC. The amicus brief would set out why Bemba, alleged to have led a terror campaign against people in the Central African Republic, should also be charged with rape as a form of torture. The brief would also highlight the history and applicability of key provisions of the Rome Statute, as well as point out major developments in international law that treat of rape as torture. Furthermore, the brief would demonstrate that the cumulative charging of rape and torture is consistent with international human rights norms.

Among those who joined the petition emphasizing the importance of hearing this appeal include the leading experts on torture in the United Nations system: Felice Gaer, current member and former vice chair of the United Nations Committee Against Torture; Claudio Grossman, chair of the UN Committee Against Torture; current and former UN Special Rapporteurs on Torture including Manfred Nowak, Sir Nigel Rodley and Theo van Boven.  Signatories also include individuals and women’s human rights experts and human rights advocates who over the past 15 years have made important contributions with respect to the international human rights framework of accountability for torture and sexual and gender-based violence.  They include: UN Special Rapporteur on violence against women, Rashida Manjoo; Commissioner and Special Rapporteur on rights of women in Africa for the African Commission on Human and People’s Rights, Soyata Maiga; former Executive Director of the Women’s Caucus for Gender Justice, Vahida Nainar; the Coalition for Women’s Human Rights in Conflict Situations, medica mondiale and REDRESS.