THE TRIAL CHAMBER

DISSENTING OPINION OF JUDGE PIERRE BOUTET ON THE DECISION ON PROSECUTION REQUEST FOR LEAVE TO AMEND THE INDICTMENT

1. With all due respect for my Learned Brothers, the Presiding Judge Bankole Thompson and Judge Benjamin Mutanga Itoe, I cannot agree with their findings and decision with respect to this Application by the Prosecutor for Leave to Amend the Consolidated Indictment against Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, these accused being refered jointly as the CDF Group.
2. The fundamental principles that this Court applied in its decisions on similar applications for amendments in the cases of AFRC and RUF[1] should receive similar application in this case where the prosecution is also seeking leave to amend the consolidated indictment against the CDF. Although the circumstances that existed did differ, in giving due consideration to the existing circumstances and having regard to the particular nature of the counts sought to be added to the existing indictment, that request by the Prosecution to amend the CDF consolidated indictment for the reasons that I will further describe below is overall in the interest of justice, will not cause any undue delay, and in my opinion should be granted in its entirety.

BACKGROUND

3. For the purpose of this decision, I will reiterate here what I view to be important and relevant parts of the AFRC and RUF Decisions as they relate more directly to the assessment of what I consider to be two essential factors that justified on my part a different consideration and findings than the one arrived at by the majority in this case:
   27. The crucial consideration in this process, in our opinion, is one of timing. The question to be asked, is whether application for the amendment is brought at a stage in the proceedings where it would not prejudice the rights of the defense to a fair and expeditious trial and furthermore, whether it is made in the overall interest of justice rather than its having the effect of giving an undue advantage to the prosecution, thereby putting in jeopardy, the doctrine of equality of arms between the Prosecution and the Defense.
   28. [...]

BURDEN OF PROOF

29. We appreciate that the burden of proof that the Prosecution bears in every criminal trial is understandably very heavy. It commences with the detection and production of solid and convincing evidence to establish the guilt of the accused beyond all reasonable doubts. The other important component of the burden of proof is the charge or charges which the Prosecution files in order to reflect the evidence it has at its disposal and can adduce in order to discharge the obligation of “proof beyond all reasonable doubt”.
30. We would like to acknowledge here, the fact that this burden of proof is even more demanding in matters before the international criminal tribunals than it is in the municipal systems. The reason is that the protection of the rights of suspects and accused persons is not only often more clearly spelt out and entrenched in the statutes of those tribunals, but is also, in addition, reinforced by other international conventions and instruments that are conspicuously absent in municipal legislations.
31. To attain these objectives, we think that the Prosecution must and indeed, should be given the latitude, to resort to all means that the law permits to enable it to fully exercise its authority under the Statute and under the general and accepted principles of law and practice in the domain under review, and this, with a view to giving it the opportunity to fully assume and discharge those prosecutorial functions.

AUTONOMY OF THE PROSECUTOR

32. The Statute of the Special Court in its Article 15(1) stipulates inter alia that the Prosecutor shall act independently as a separate organ of the Special Court. “He or she shall not seek or receive instructions from any government or from any other source.”
33. Article 15(4), still of the Statute, inter alia, stipulates as follows:

“ ...Given the nature of the crimes committed and the particular sensitivities of girls, young women and children victims of rape and sexual assault, abductions and slavery of all kinds, due consideration should be given in the appointment of staff to the employment of the prosecutors and investigators experienced in gender-related crimes and juvenile justice.”

34. These provisions underscore the necessity for international criminal justice to highlight the high profile nature of the emerging domain of gender offences with a view to bringing the alleged perpetrators to justice. In the light of the above, it is expected, and we hold the view, that the Prosecutor who is at the helm of the investigation process, should exercise vigilance, diligence and attention, bring before justice for trial, all those accused of having committed gender and other categories of offences within the competence of the Court without any “undue delay”, as stipulated in Article 17(4)(c) of the Statute of the Court.
35. Our duty in situations of this nature where statutory interests are in conflict is to ensure a rigorous respect of the rights of each of the parties in the arena, and to ensure that there is no breach of one’s or the other’s rights.”[2]

And finally:

46. The crucial consideration in this process, in our opinion, is one of timing and whether the application for the amendment is brought at a stage in the proceeding where it would not prejudice the rights of the accused to a fair and expeditious trial and furthermore, whether it is made in the overall interest of justice rather than having the effect of giving an undue advantage to the prosecution thereby putting in jeopardy the doctrine of ‘equality of arms’ between the Prosecution and the Defence.[3]
4. All of these considerations and statements have indeed application to this motion as they pertain to duties and obligations of the Prosecution in international criminal tribunals and to the necessity to give proper consideration to this now emerging domain of gender-based crimes, two essential factors in determining this issue of timeliness.

SUMMARY DESCRIPTION OF FACTS AND CIRCUMSTANCES

5. In order to avoid unnecessary repetition and subject to the additional description in the following paragraph, I adopt for the purpose of this dissenting opinion the summary description of facts as well as the submissions of the Parties as embraced in the majority Decision.
6. To these facts so described, I would like to add the following information contained in the Court’s record and in the material and information provided to the Court in support of this application. It is in my view of importance for the purpose of determining what were the circumstances that existed, the complexity of the issues and consequently the timeliness of the application:
   1. The decision by the Trial Chamber on Joinder was rendered on 28 January, 2004;[4]
   2. This Motion was filed on 9 February, 2004;
   100. The date for the beginning of the “CDF” trial has been set for 3 June 2004;[5]
   4. The trial will proceed in alternance with another trial every month.
   5. The Prosecution in their reasons as to why the amendment for gender-based crimes was brought, only in February 2004 submitted the following in the “Prosecutor’s Written Answers”:

“Although the Prosecution had indications of gender based crimes as early as June and July of 2003, it was not until October 2003 that solid evidence capable of confirmation was obtained. The lapse of time between the discovery of the sexual violence evidence and the filing of the amendment was due to the need to properly evaluate and confirm the evidence. In addition, the Prosecution had to secure the full cooperation of the witnesses who were going to testify to these allegations before the amendment could be filed.” [6]

6. Further, the Prosecution stated that:

“The evidence relating to paragraph 28 of the Amended Indictment (Freetown looting) was disclosed in November 2003. The evidence relating to the charges on sexual violence and the remaining changed paragraphs of the Amended Indictment was disclosed on 17 February 2004.”[7]

7. Lastly, the Prosecution added the following comments as to the reasons for not filing the request to amend the indictment before or with the joinder motion:

“As discussed above, the earliest that the amendment could have been filed was late November, in that the evidence relating to the gender-related crimes was only properly confirmed and ready for charging at that time. The motion for joinder was filed in October. Therefore, and in the interest of judicial economy, the Prosecution took the decision to wait for the outcome of the joinder motion before filing its request to amend, thereby filing only one motion instead of three separate motions in the CDF case alone. Including the RUF and the AFRC cases, there would have been a total of nine motions to amend before the Trial Chamber.”[8]

DISCUSSION

7. As described in the “Background” section above with reference to the AFRC and RUF Decisions where the Prosecutor had made similar application for amendments, the question to be asked again is whether application for the amendment is brought at a stage in the proceedings where it would not prejudice the rights of the defense to a fair and expeditious trial and furthermore, whether it is made in the overall interest of justice rather than its having the effect of giving an undue advantage to the prosecution, thereby putting in jeopardy the doctrine of equality of arms between the Prosecution and the Defense.
8. Thus, the key issue that this Court has to dispose of in this application is whether the proposed amendments, if granted would violate the right of the accused to be tried without undue delay. In proceeding to make that assessment, as this Court has stated: “the crucial consideration in this process ... is one of timeliness”. To that extent and posed in those terms only and for that limited purpose I share the views of the majority. However, I differ essentially and fundamentally on two grounds from the findings and the Decision of the majority:
   • (a) in their analysis of what in the circumstances that existed did constitute “undue delay”, if any, and
   • (b) in not giving due consideration to the special features related to the proper exercise of discretion by the Prosecution and to the nature of the counts to be added to the consolidated indictment: gender-based crimes.

“Undue Delay”

9. What is an undue delay and what would constitute such delay in the circumstances needs to be established first before looking at the specific factors. In this respect, reference can be made to the Trial Chambers in both the ICTR and ICTY who have dealt with this issue of undue delay in many decisions. In addition, the Appeals Chamber for these tribunals has in some leading cases namely Kovacevic[9], Karemera[10] and most recently in Bizimungu[11] established international criminal jurisprudence about such matters and henceforth provided useful guidance and assistance as to how to proceed with such assessment and which factors a Trial Chamber must consider to arrive at a proper determination of undue delay.
10. In the Bizimungu Decision, the Appeals Chamber said:

[...] the Trial Chamber must consider all of the circumstances bearing on a motion to amend the indictment. Interference with the orderly scheduling of trial, however, is one such circumstance. The Appeals Chamber stated in Karemera that a “postponement of the trial date and a prolongation of the pretrial detention of the Accused” are “some, but not all” of the considerations relevant to determining whether a proposed amendment would violate the right of the accused to a trial “without undue delay,” which in turn bears on the broader question whether the amendment is justified under Rule 50 of the Rules. The Trial Chamber should also consider such factors as the nature and scope of the proposed amendments, whether the Prosecution was diligent in pursuing its investigations and in presenting the motion, whether the Accused and the Trial Chamber had prior notice of the Prosecution’s intention to seek leave to amend the indictment, when and in what circumstances such notice was given, whether the Prosecution seeks an improper tactical advantage, and whether the addition of specific allegations will actually improve the ability of the Accused to respond to the case against them and thereby enhance the overall fairness of the trial. Likewise, the Trial Chamber must also consider the risk of prejudice to the Accused to recall witness for cross-examination. The above list is not exhaustive; particular cases may present different circumstances that also bear on the proposed amendments.[12]

11. In the Kovacevic Decision, and most specifically in the Karemera Decision, the Appeals Chamber had this say about “delay”:
    13. [...] This factor arises from Article 20(4)(c) of the Statute of the International Tribunal, which entitles all accused before the International Tribunal to be “tried without undue delay,” and is unquestionably an appropriate factor to consider in determining whether to grant leave to amend an indictment. Guidance in interpreting Article 20(4)(c) can be found in the ICTY case of Prosecutor v. Kovacevic, in which the Trial Chamber refused amendment of an indictment on grounds that included undue delay. The ICTY Appeals Chamber framed the question as “whether the additional time which the granting of the motion for leave to amend would occasion is reasonable in light of the right of the accused to a fair and expeditious trial.” The ICTY expresses in language identical to Article 20(4)(c) of the Statute of International Tribunal, “must be interpreted according to the special features of each case.” Additionally, the specific guarantee against undue delay is one of several guarantees that make up the general requirement of a fair hearing, which is expressed in Article 20(2) of the Statute of the International Tribunal and Article 21(2) of the ICTY Statute. “[T]he timeliness of the Prosecutor’s request for leave to amend the Indictment must thus be measured within the framework of the overall requirement of the fairness of the proceedings.”
    14. Kovacevic stands for the principle that the right of an accused to an expeditious trial under Article 20(4)(c) turns on the circumstances of the particular case and is a facet of the right to a fair trial. This Appeals Chamber made a similar point recently when it stated, albeit in a different context, that “[s]peed, in the sense of expeditiousness, is an element of an equitable trial.” Trial Chambers of the International Tribunal have also used case-specific analysis similar to that of Kovacevic in determining whether proposed amendments to an indictment will case “undue delay.”[13]
12. For the purpose of this discussion it should be observed that article 17(4) of the Statute of the Special Court is essentially to the same effect and reads in part:

“In the determination of any charge against the accused pursuant to the present Statute he or she shall be entitled to the following minimum guarantees, in full equality:

[...];

(c) To be tried without undue delay;”

13. Therefore, decisions of the Appeals Chamber for ICTY on such matters, could find full application and be of useful guidance to this Trial Chamber when dealing with such issues and this will all due respect to the contrary views expressed on this subject by my Brother Judge Thompson in his dissenting opinions in the AFRC and RUF Decisions.[14]
14. Based upon the foregoing decisions I accept that such “case-specific analysis similar to that of Kovacevic is a proper method for the determination of whether proposed amendments to an indictment will cause undue delay” and furthermore, in the words of the Appeals Chamber in the Karemera Decision, also to determine “whether the additional time which the granting of the motion for leave to amend is reasonable in light of the right of the accused to a fair and expeditious trial.”[15] It is in that perspective that the case-specific analysis is to be applied to measure “the timeliness of the Prosecutor’s request for leave to amend the indictment.”[16]
15. With regards to timeliness, based upon the foregoing analysis, the questions to be answered when considering this matter in the existing circumstances are two-fold:

(a) Whether the Prosecution could or should have filed such a request for an amendment much earlier in the process;

(b) Would such an application at this particular time when the Trial has not yet started but where the Court is about to begin the trial cause an undue delay and consequently violate the right of the accused to a fair and expeditious trial.

Prosecutor’s Exercise of Discretion

16. To properly answer this first question, it is necessary to examine what are the duties, obligations and responsibilities of the Prosecutor when proffering charges against an accused person. Would “indicia” of evidence be sufficient to justify such actions on the part of the Prosecution or is there a requirement of sufficiency of evidence to provide reasonable grounds for believing that a suspect has committed a crime in the jurisdiction of the court before making such a decision?
17. In disposing of a motion as to jurisdiction in the Fofana case this Chamber while discussing the process applicable when reviewing an application for approval of an indictment, commented on the applicable test in the following terms:
    32. The review of an indictment is not simply a “rubber stamp” procedure; rather, it is a process during which the Designated Judge carefully reviews the contents of the proposed indictment and Prosecutor’s case summary to determine whether there is sufficient information to establish reasonable grounds to believe that the person committed the crime charged.
    33. The Chamber recalls that Rule 47 of the Rules was amended at the Plenary in March 2003: Rule 47(B) had been identical to that of the ICTR Rules. This amendment does not mean, however, that the Chamber abandoned the general principle of criminal law that there must be a sufficient basis for each crime charged.[17]
18. Reference was made in that decision to The Code for Crown Prosecutors[18] for England and Wales which provides in Articles 5(1), 5(2) and 5(3) that:

5.1 Crown Prosecutors must be satisfied that there is enough evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge;

5.2 A realistic prospect of conviction is an objective test;

5.3 When deciding whether there is enough evidence to prosecute, Crown Prosecutors must consider whether the evidence can be used and is reliable.

19. A cursory review of case law in some national jurisdictions as to the duties, obligations and responsibilities of the Prosecution when determining to proceed with charges against an accused person does provide some insightful appreciation of what in common law jurisdictions is generally considered to be the duty of a Prosecutor.
20. Of interest for our purposes some of the comments of Judge Shahabuddeen in his separate opinion in the Kovacevic Decision where he states:

“[...] I take the prevailing common law position to be set out in a 1977 opinion of the United States Supreme Court, delivered by Mr. Justice Marshall and reading in parts as follows:

The Due Process Clause does not permit courts to abort criminal proceedings simply because they disagree with a prosecutor’s judgment as to when to seek an indictment. Judges are not free, in defining “due process”, to impose on law enforcement officials our ‘persona; and private notions’ of fairness and to ‘disregard the limits that bind judges in their judicial function’. ... Our task is more circumscribed. We are to determine only whether the action complained of –here, compelling respondent to stand trial after the Government delayed indictment to investigate further – violates ... ‘fundamental conceptions of justice ...’ which define ‘the community’s sense of fair play and decency’ ...”. (United States v. Lavasco, 431 U.S. 783 (1977), at p. 790).”

“It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt...”. (Ibid., p. 791).

“In our view, investigative delay is fundamentally unlike delay undertaken by the government solely ‘to gain tactical advantage over the accused’, ... precisely because investigative delay is not one-sided. Rather than deviating from elementary standards of ‘fair play and decency,’ a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt. Penalizing prosecutors who defer action for these reasons would subordinate the goal of ‘orderly expedition’ to that of ‘mere speed’ ... This the Due Process Clause does not require”. (ibid., p. 795).[19]

21. Although dealing with different matters but having to consider the duty of prosecuting authorities when acting in criminal matters, the Supreme Court of Canada in Proulx v. The Attorney General of Quebec stated the following:

“the Crown must have sufficient evidence to believe that guilt could properly be proved beyond a reasonable doubt before reasonable and probable cause exists, and criminal proceedings can be initiated. A lower threshold for initiating prosecutions would be incompatible with the prosecutor's role as a public officer charged with ensuring justice is respected and pursued.”[20]

22. In R. v. Regan, the same court said:

“There is no question ... that the principles of fairness and fundamental justice entitle an accused to a duty of objectivity exercised by the Crown in deciding to prosecute” [21]

23. And in Boucher v. The Queen, Judge Rand stated for the Court:

“Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. [...] his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of dignity, the seriousness and the justness of the judicial proceedings.”[22]

24. Based upon the foregoing and considering the description enunciated in the “Background” section above as to the burden of proof and autonomy of the Prosecutor, I have to conclude therefore, in response to the first question, that it is only when the Prosecutor has what he considers to be sufficient, credible evidence that can be used and is relevant to what he is alleging that he should proceed to bring an indictment for approval by the Court. Although we are proceeding here with amendments to the consolidated indictment and there are no specific requirements in the rules as to any applicable test or criteria to be applied by the Prosecutor, in my view, the very same test of ‘reasonable certainty of conviction’ that was required at the earlier stages of the process is applicable here to these new counts.
25. When dealing with sufficiency of evidence, due process requires a Prosecutor to act fairly, with objectivity and decency. In my opinion, in the discharge of its statutory obligation, pursuant to Article 15 of the Statute of the Special Court, therefore the Prosecutor can only bring a charge against an accused if the evidence meets this test of “reasonable certainty of conviction’. The evidence must be such that it would provide reasonable grounds for believing that a person has committed a crime within the jurisdiction of the Court. He must be in possession of evidence sufficient to reasonably be satisfied that he could get a conviction should he proceed ahead with a count or a new count as the case may be. Failing to meet this objective test, a Prosecutor cannot proceed to bring a count for approval or application for amendment of an existing indictment for the addition of new counts.

Gender-Based Crimes

26. Another feature with reference to these new counts that deserves careful consideration when assessing ‘timeliness’ and for that purpose in determining the vigilance, diligence and attention of the Prosecution in the investigative process relates to the very nature of these offences. When dealing with gender-based crimes a special consideration should be brought to bear in the appreciation of the circumstances. It is now quite widely recognized and accepted that victims of sexual violence will often demonstrate reluctance to come forward and report such actions. Studies, surveys, reports about the effects of gender-based violence on victims demonstrate the difficulty of investigating and gaining evidence about such crimes and the reluctance of victims to discuss these matters.
27. A report authored by Charlotte Lindsey for the International Committee of the Red Cross with respect to sexual violence during war and its effect on women highlight these difficulties. The report in its summary at pages 51-65 provides the following:

“Women may be unable or afraid to report such violations because national institutions have broken down or because doing so may endanger women further. In many cultures, the “shame” associated with rape is in a social sense perceived as even worse than the physical act itself.

Survivors of rape or sexual violence may face further problems such as ostracism or retribution (in addition, the perpetrators may have told them that if they report the violation they, or their families, will be subjected to further violence).

Women who have been subjected to violence, including sexual violence, need to assess for themselves what constitutes justice, and may not necessarily want to give evidence in criminal proceedings because they do not wish their family to know what happened to them, or because of fears for their own safety and that of their family, and/or because of desire not to live through the ordeal again by retelling it.”[23]

28. To essentially the same effect, in the preliminary report of the Special Rapporteur on the situation of systematic rape, sexual slavery and slavery-like practices during periods of armed conflicts, these comments can be found :

“It is clear from the material gathered in this preliminary report that there exists a very substantial body of international law relating to systematic rape, sexual slavery and slavery-like practices during wartime, including internal armed conflict. [...] there is preliminary information about the widespread occurrence of systematic rape, sexual slavery and slavery-like practices during periods of armed conflict [...]”

“The victims of these atrocities should be treated at all times with respect and understanding. All agencies and mechanisms dealing with human rights and humanitarian issues should be mindful of the perspective of victims of systematic rape and sexual abuse, and of the fact that victims suffer long-term consequences. A further possibility for study is the silence of victims. Reasons for reluctance to report wartime rape may include shame and social stigma, fear of awakening bad memories, fear of reprisals, a lack of trust in the judicial system and the national legislature, and the belief in the absence of remedies.”[24]

29. The Report of the Secretary-General “Rape and abuse of women in the areas of armed conflict in the former Yugoslavia” describes such reluctance of victims as follows:

“It must be remembered, however, that reports of sexual assault are difficult to obtain given the reluctance of victims to describe such experiences since they implicitly carry with them prospects of social stigma and fear of reprisals.”[25]

30. And in “Women, Peace and Security: Study submitted by the Secretary-General pursuant to Security Council Resolution 1325 (2000)”:

“Many societies blame the victim of sexual violence, particularly when the victim is a woman or a girl. The resulting social rejection reinforces feelings of shame, guilt, loneliness and depression. Victims of gender-based violence may feel overcome with terror, experience a sense of powerlessness, worthlessness, apathy and denial. In some societies, the stigma attached to sexual violation leads to ostracism and isolation. Husbands or families may shun women or girls who acknowledge that they were raped. Ostracism may also occur in societies that maintain certain myths about survivors of sexual violence, such as in Sierra Leone, where it is believed that raped women and adolescent girls will become barren, sexually obsessed, and unable to remain faithful to their husbands.”[26]

31. In addition to these reports, many academic commentators such as Christine Chinkin have expressed similar views: victims of sexual violence experience a great deal of shame associated with rape:

“The consequences of rape continue beyond the actual attack or attacks, often lasting for the rest of the women’s lives. As well as the degradation, pain and terror caused at the time, the fear engendered remains long after... Women fear they have become unacceptable to their families and communities, a fear which may be enhanced where the rape was committed publicly in the presence of members of these communities. Public rape terrorizes and traumatizes the civilian population. There is also only just beginning to be some understanding of the psychological damage caused by the trauma of violent sexual abuse.”[27]

32. International criminal tribunals have expressed comments as to this particular situation and the enduring effect it has on these victims. In the Delalic case, Trial Chamber of the ICTY stated:

“The psychological suffering of persons upon whom rape is inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long lasting.”[28]

33. And finally, to conclude on this aspect, I would like to refer to the Ayakesu case at the ICTR where the Trial Court noted that the Prosecutor had stated that the “evidence previously available was not sufficient to link the Accused to acts of sexual violence and acknowledged that factors to explain this lack of evidence might include the shame that accompanies acts of sexual violence as well as insensitivity in the investigation of sexual violence.”[29]

Conclusion

34. The record shows that at the time when the indictment for each of these accused now joined as the CDF Group, was submitted to the Court for approval, the latest one being on 30 June 2003, it did not include any count related to gender-based crimes and/or sexual violence contrary to what had been done with reference to all accused in the RUF Group and those of the AFRC Group. However there is no evidence that suggest that any adverse inference should be drawn from these facts. The only conclusion should be, in my view, that in the circumstances that existed there was sufficient evidence at that time that did justify that it be proceeded with, as the Prosecution did with respect to these two groups, AFRC and RUF, and no such evidence was available about this other group, the CDF. the circumstances were just different.
35. The information and the material submitted to the Court reveal that there were however some indication about gender-based crimes that came to the knowledge of the Prosecution shortly after the indictment was submitted to the Court for approval, that being at the end of June 2003. However, it would appear that it was not “until October 2003 that solid evidence capable of confirmation was obtained”[30] and “the earliest...the amendments could have been filed was late November in that the evidence relating to the gender-related crimes was only properly confirmed and ready for charging at that time.”[31] “The lapse of time between the discovery of the sexual violence evidence and the filing of the amendment was due to the need to properly evaluate and confirm the evidence. In addition, the Prosecution had to secure the full cooperation of the witness who were going to testify to these allegations before the amendment could be filed.”[32]
36. Considering the foregoing description of facts, I am lead to conclude that the Prosecutor did not have at the time the indictments were submitted for approval sufficient evidence that would have justified him to proceed with such counts related to gender-based crimes.
37. Considering the test of reasonable certainty of conviction applicable to the Prosecutor in the proper exercise of its statutory obligation pursuant to Article 15 of the Statute in light of the evidence and material available to the Court, I find that sufficient evidence only existed at the end of November 2003. Consequently, to answer the question posed earlier, I conclude that in law and in fact only at that time could the Prosecutor have filed an application for such amendments to add these new counts of gender-based crimes. I also find that the Prosecution does not by filing this leave to amend at this stage of the process seek any improper tactical advantage.
38. Now with respect to the second question, considering the existing circumstances, I would conclude that by granting such an application, it would not cause any ‘undue delay’. Given that the trial of the accused will be alternating, on a monthly basis with another trial I am not even convinced that by granting this application, it would of necessity produce a real delay. Bearing in mind all the existing circumstances, even though there might be a delay, such delay will not in my opinion amount to a violation of the accused right to be tried without undue delay.
39. As to the other counts where the Prosecutor is seeking leave to extend the time and location, again considering the facts and the materials submitted in support of this application, applying the test previously described as to the proper exercise of prosecution discretion, in law and in fact.
40. To paraphrase the Trial Chamber in Kabiligi, I find that “the proposed amendment, if granted, will not cause any prejudice to the accused which cannot be cured by the provisions of the rules.”[33]
41. For all of these reasons, I would allow such amendments and would grant leave to amend these counts accordingly.
    

[1] Prosecutor v. Alex Tamba Brima et al., SCSL-2004-16-PT, 6 May 2004, Decision on Prosecution Request for Leave to Amend the Indictment against Alex Tamba Brima, Brima Bazzy Kamara and Santigie Kanu and Prosecutor v. Issa Hassan Sesay et al., SCSL-2004-15-PT, Decision on Prosecution Request for Leave to Amend the Indictment against Issa Sesay, Morris Kallon and Augustine Gbao, 6 May 2004 (“AFRC and RUF Decisions”).
[2] Id., paras 27-35.
[3] Id., para. 46.

[4] Prosecutor v. Sam Hinga Norman, SCSL-2003-08-PT, Prosecutor v. Moinina Fofana, SCSL-2003-11-PT, Prosecutor v. Allieu Kondewa, SCSL-2003-12-PT, Decision and Order on Prosecution Motions for Joinder, 28 January 2004;
[5] Order for Commencement of Trial, 11 May 2004.
[6] Prosecutor’s Written Answers, para. 2.
[7] Id., para 3.
[8] Id., para 7.
[9] Prosecutor v. Kovacevic, IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 2 July 1998 (“Kovacevic Decision”).
[10] Prosecutor v. Karemera, ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, 12 December 2003 (“Karemera Decision”).
[11] Prosecutor v. Bizimungu, Mugenzi, Bicamumpaka & Mugirareza, ICTR-99-50-AR50, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber II Decision of 6 October 2003 Denying Leave to File Amended Indictment, 12 February 2004 (“Bizimungu Decision”).
[12] Id., para. 16.
[13] Karemera Decision, supra note 10, paras 13-14.
[14] Prosecutor v. Alex Tamba Brima et al., SCSL-04-16-PT, Dissenting Opinion of Judge Bankole Thompson, Presiding Judge of the Trial Chamber on Prosecution’s Motion for Leave to Amend Indictment against Accused Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, 6 May 2004, paras 5-6; and Prosecutor v. Issa Hassan Sesay et al., SCSL-04-14-PT, Dissenting Opinion of Judge Bankole Thompson, Presiding Judge of the Trial Chamber on Prosecution’s Motion for Leave to Amend Indictment against Accused Issa Hassan Sesay, Morris Kallon and Augustine Gbao, 6 May 2004, paras 5-6.
[15] See supra para. 11.
[16] Id.
[17] Decision on the Preliminary Defence Motion on the Lack of Personal Jurisdiction Filed on Behalf of Accused Fofana, 3 May 2004, paras. 32-33.
[18] Available at <www.cps.gov.uk>.
[19] Kovacevic Decision, supra note 9, Separate Opinion of Judge Mohamed Shahabuddeen.
[20] Proulx v. Quebec (Attorney General), 3 S.C.R. 9, 2001, para. 31.
[21] R v. Regan, 1 S.C.R. 297, 2002, para. 124.
[22] Bouchrt v. The Queen, S.C.R. 16, 1955, p. 23-24.
[23] Charlotte Lindsey, Women Facing War, ICRC, Geneva, October 2001.
[24] UN Doc. E/CN.4/Sub.2/1996/26, Preliminary Report of the Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-Like Practices During Periods of Armed Conflict, Ms. Linda Chavez, 16 July 1996, paras 86-87.
[25] UN Doc. A/52/497, Report of the Secretary General, Human Rights Questions: Human Rights Situations and Reports of Special Rapporteurs and Representatives, Rape and Abuse of Women in the Areas of Armed Conflict in the Former Yugoslavia, 17 October 1997, para. 20.
[26] Women, Peace and Security: Study submitted by the Secretary-General pursuant to Security Council resolution 1325 (2000), para. 79.
[27] Christine Chinkin, Rape and Sexual Abuse of Women in International Law, 5 European Journal of International Law (1994), p. 326.
[28] Prosecutor v. Delacic et al., IT_96-21-T, Judgement, para 495.
[29] Prosecutor v. Akayesu, ICTR-96-4-T, Decision on Prosecutor’s Request for Leave to Amend the Indictment, 17 June 1997, para. 417.
[30] Prosecutor’s written answers, para.2.
[31] Id., para. 7.
[32] Id., para 2.
[33] Prosecutor v. Kabiligi & Ntabakuze, ICTR-97-34-I & ICTR-97-30-I, Decision on the Prosecutor’s Motion to Amend the Indictment, 8 October 1999, para. 51.