resources and expediency has been cited as the reason, 235 the problem has also been the inability or refusal to recognise the centrality of crimes of sexual violence to the methods and means of wars and conflicts. Like the Akayesu trial at the ICTR236, in the course of examining the witnesses during the Lubanga trial, the judges found that the children, particularly girls, who were conscripted in the armed force were routinely subjected to sexual violence. 237 Unlike the Akayesu case however, where the judges directed the Prosecutor to amend the charges and include sexual violence, the judges at the trial chamber of the ICC did not make such a direction. The ICC Prosecutor, while acknowledging the fact of sexual violence in the opening and closing arguments, not only did not apply to amend the charges to include sexual violence, he opposed efforts by the legal representative of the victims to re-characterise the facts to include crimes of sexual violence. 238 The Prosecutor did so on the grounds that such efforts intruded on his ability to perform his duties as assigned in the statute including seeking amendment of charges239 and that it would be unfair to the accused if he (the accused) was tried and convicted on that basis.240 The prosecutorial discretion of characterising the suffering of the victims as one crime, glossing over other possible characterisations of the facts, deprived victims of a sense of justice for all the other ways in which they suffered. It also arbitrarily prioritised the crime that was charged as the most important, to the exclusion of the other crimes that were committed against the victims. Finally, the fact that the judges took note of the emerging evidence of sexual violence recounted by witnesses during the trial and did nothing about it, and that the Prosecutor acknowledged sexual violence in his opening and closing arguments but did not seek to amend the indictment to include the charges of sexual violence; further sends an unfortunate message that prosecutorial discretion is supreme and cannot be challenged; and that the judges are powerless to intervene. The ICC has thus in its very first verdict fallen short of making good on the promise of gender justice in the Rome Statute. ii) Accused Considers Rape Not as Serious as Torture The case against Jean Pierre Bemba 241 is based primarily on charges of sexual violence. Following the warrant of arrest issued against Bemba by Pre-Trial Chamber III (PTC), the Prosecutor charged Bemba with three counts of crimes against humanity (including rape, murder and torture) and five counts of war crimes (including rape, murder, torture, outrages upon personal dignity, and pillaging) in the Central African Republic.242 In its Confirmation Decision, 243 the PTC declined to confirm the counts of torture as crimes against humanity and the count of ‘outrage upon dignity’ as a war crime on the basis that the elements of these crimes are subsumed in the count of rape. The Office of the Prosecutor (OTP) appealed the Sexual Violence at the Special Court for Sierra Leone’ International Journal of Transitional Justice (2007) 1(3): 355-374 first published online January 1, 2007. See also, B. Van Schaack, ‘Obstacles on the Road to Gender Justice: The International Criminal Tribunal for Rwanda as Object Lesson’, Journal of Gender, Social Policy & the Law, 17, note 2 (2009) On the limited charging in the Lubanga case, see Kambale, ‘The ICC and Lubanga: Missed Opportunities’ Possible Futures Essay, A Project of Social Science Research Council, March 16, 2012 available at: http://www.possiblefutures.org/2012/03/16/african-futures-icc-missed-opportunities/. 235 K. Askin, ‘Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles,’ 21 Berkeley Journal of International Law, (2003): 288-346. 236 The Prosecutor v Jean-Paul Akayesu, ICTR Trial Chamber Judgment, Case No. ICTR-96-4-T, 2 September 1998, para. 41. 237 Lubanga Judgment, para 16. 238 Lubanga Judgment, para. 629. 239 The Prosecutor v. Lubanga (ICC), Prosecutor’s Application for Leave to Appeal, ICC-01/04-01/06-2074, 12 August 2009, para 24. 240 Lubanga Judgment, para. 629. 241 The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05 -01/08. 242 Warrant of Arrest, The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05 -01/08, 10 June 2008 replacing the one issued on 23 May 2008. 243 Decision on the Confirmation of Charges, The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05 -01/08, 15 June 2009. REDRESS | 6. INTERNATIONAL HUMANITARIAN AND CRIMINAL LAW 65