confirmation decision to drop charges of torture and outrage upon dignity. 244 The Legal Representative for Victims submitted their response to the confirmation decision in support of the Prosecutor’s appeal. 245 They argued that by recognising those raped only as victims of sexual violence, the Chamber may have violated article 21(3) of the ICC statute that mandates application of all the statutory provisions, rules and regulations in a non-discriminatory manner and with due regard to the existing human rights standards. Women’s Initiatives for Gender Justice (WIGJ) submitted amicus curiae observations 246 highlighting, among other things, that the rape of a 10 year old has an additional element of ‘lack of consent’ that makes it a crime materially different from torture. Similarly, forcing family members to watch the rape of their relatives before themselves being violated is indeed an outrage upon their dignity that they are additionally subjected to that is materially and factually distinct from rape. Both these reported facts belie the PTC’s assertion in the confirmation decision that all elements of torture or of outrage upon dignity are subsumed under the charge of rape. iii) Implications of the Confirmation Decision Despite confirming the charge of rape, the confirmation decision of the PTC adversely impacts the prosecution of sexual violence crimes and undermines the advances made by the ad-hoc tribunal of ICTY in charging and prosecution of sexual violence crimes. For many years, international women’s human rights advocates have argued that rape meets all the elements of torture and should therefore be charged and prosecuted as such. The ICTY has followed through with this in a number of cases and characterised rape as torture. The refusal by the Chamber to confirm the charge of torture, believing it to be subsumed by the count of rape, reverses the progress made on the issue. The PTC questioned the practice of cumulative charging of offenses on the grounds that it places undue burden on the defence. Cumulative charging is a practice normal to all legal systems where multiple offenses are charged when the alleged facts meet the elements of more than one crime and they are not regarded as compromising the rights of the accused. By declining to confirm the count of torture and of outrage upon dignity on the grounds that these are subsumed by the count of rape, the Chamber refuses to recognise that circumstances and facts that very clearly meet the elements on one crime may also meet the elements of other crimes or that victims may have perceived them as other crimes in addition to the very obvious crime. For example, while the facts of the case may clearly meet all elements of rape, it may also meet the elements of torture or indeed that the victims may have perceived them as outrage upon personal dignity. By privileging one characterisation of the crime over another, the Chamber is overstretching its authority under Regulation 55. The regulation permits the chamber to “recharacterise a crime to give it most appropriate legal characterisation” may not be read as a mandate to limit its other possible characterisations. Finally, since the Bemba case is the only case before the ICC thus far that deals mostly with crimes of sexual violence, the undercutting in the manner of charging, and therefore its eventual prosecution, sets an unfortunate, unjust and discriminatory precedent contrary to the objectives of the unprecedented gender inclusion in the Rome Statute of the ICC. iv) Fallout of the Confirmation Decision Subsequent to the PTC’s Confirmation Decision, a hearing was convened to review Bemba’s detention as per the rules.247 At this hearing, the Defence made another request for interim release 244 Application for Leave to Appeal the Confirmation Decision, The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05 01/08, 22 June 2009. 245 Réponse du Représentant légal des victimes a/0278/08, a/0279/08, a/0291/08, a/0292/08, a/0293/08, a/0296/08, a/0297/08, a/0298/08, a/0455/08, a/0457/08, a/0458/08, a/0459/08, a/0460/08, a/0461/08, a/0462/08, a/0463/08, a/0464/08, a/0465/08, a/0466/08 et a/0467/08 à la demande d'autorisation d'interjeter appel déposée par le Bureau du Procureur à l'égard de la Décision sur la confirmation des charges, Legal Representative for Victims, The Prosecutor v. JeanPierre Bemba Gombo, ICC-01/05 -01/08, 26 June 2009. 246 Amicus Curiae Observations of the Women's Initiatives for Gender Justice pursuant to Rule 103 of the Rules of Procedure and Evidence, The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05 -01/08, 31 July 2009. 247 Pre-Trial Chambers - Hearing to review Defence’s Application for Interim Release, The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05 -01/08, 29 July 2009. 66 6. INTERNATIONAL HUMANITARIAN AND CRIMINAL LAW | REDRESS