The International Criminal Court (ICC) has taken a significant stride in addressing a crime that has long been neglected – gender persecution. Though present in the Rome Statute, this crime has often been overlooked. A recently published policy paper signifies an effort to combat gender persecution and bring justice to its victims.

What is gender persecution?

Gender persecution occurs when another crime under the Rome statute (i.e. war crime, crime against humanity) is committed against an individual or group of persons because of their gender. For the crime to be classified as gender persecution, it is imperative that the perpetrator had discriminatory intent.[1] In order to uncover the potential discriminatory intent, it is necessary to ask why the crime was committed. 

Professor Davis, ICC’s Special Adviser on Gender Persecution, explains the crime with an example of a school bombing. While the bombing qualifies as murder, the absence of discriminatory intent is implied when victims vary in age, race, or sex. However, if the bombing specifically targets a girls' school, a crucial question arises. Why was the crime committed? The answer could be to prevent girls from accessing education. The intent then becomes gendered, qualifying as gender persecution.

Recognising gender persecution

The roots of gender persecution can be traced back to the crimes of the Nazi regime, particularly the mass murder of homosexuals. However, historical metrics of discriminatory intent primarily focused on race, religion, and politics, neglecting gender. The acknowledgment of gender persecution first gained momentum after the atrocities in Yugoslavia and Rwanda, when scholars and activists led campaigns to include the crime in the Rome Statute.

The Rome Statute defines gender as "the sexes, male and female, within the context of society", thus affirming gender as a social construct. Further elaboration clarifies that gender persecution occurs against individuals due to their sex characteristics and/or the societal frameworks and criteria that define gender.

Challenges in identifying gender persecution

Identifying victims of gender persecution continues to be a significant challenge. These victims, primarily women, lesbians, and transgender, are often labeled as "invisible victims". This invisibility arises from the web of discrimination they encounter. The pre-existing oppression is exacerbated in times of conflict, with gender persecution becoming just one layer among the many crimes and forms of discrimination directed against them, making it hard to identify.

Gender persecution takes on various forms, complicating its recognition. It may be uncertain what the crime entails and how to differentiate it from, for example, the crime of sexual violence. Upon assuming the office in 2021, ICC Prosecutor Karim Khan emphasized his dedication to tackling this issue. The Policy, issued by the Office of the Prosecutor in December 2022, aims to facilitate a more profound comprehension of gender persecution and to pave the way for hearing more cases before the ICC.

Lisa Davis, a key contributor to drafting the Policy, underscored its comprehensive approach in addressing all crimes and severe violations of fundamental rights that may qualify as gender persecution. The Policy recognizes potential victims, encompassing women, men, and LGBTQI+ individuals, while also acknowledging the various forms that gender persecution can manifest, such as sexual violence, physical harm, cultural destruction, confiscation, imposition of dress codes, and the restriction of education for girls.

Furthermore, the ICC employs a subjective view of persecution, emphasizing the importance of the perpetrator's own beliefs about what it means to be male or female. Additionally, the Policy provides clarification on the type of evidence required to establish the elements of the crime. To ensure the commitment to prosecuting this crime, the Policy also provides a detailed description of how the prosecutor will approach the various stages of the ICC's criminal process.

Ongoing cases before the ICC

Currently, three cases involving charges of gender persecution are prosecuted. The first of them, Al Hassan, is believed to have committed a crime during the occupation of Timbuktu.[2] In this case, women's freedom was constricted by corporal punishment for dress code violations. Additionally,  there was forced marriage of women to the occupying forces.

In the Said and Abd-Al-Rahman cases, men were the victims of gender persecution. Allegedly, Said oversaw a detention facility in the Central African Republic, where male detainees faced abuse. Abd-Al-Rahman is believed to be responsible for the torture and murder of male members of the Fur community in Sudan. Both cases share a common intent for targeting the victims - their perceived social roles connected to gender. In this case, protectors, agitators, and combatants.

Path forward

The ICC's commitment to addressing gender persecution through its new policy and ongoing prosecutions is a crucial step towards justice. While obstacles remain, the ICC's actions provide hope for a future where gender persecution is consistently acknowledged, prosecuted, and eradicated.

 

Notes

[1] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) (Rome Statute) art 7(1)(h), art 7(2)(g).

[2] The occupation took place between April 2012 and January 2013. Ansar Dine, a group which Al Hassan was a member of, and al-Qaeda in the Islamic Maghreb established a religious police force and an Islamic tribunal, which punished locals disobeying their rules.

Sources

[1] Dutton, Y., Sterio, M. (2023). The ICC’s 2022 Gender Persecution Policy in Context: An Important Next Step Forward. Obtained from: https://www.justsecurity.org/86760/the-iccs-2022-gender-persecution-policy-in-context-an-important-next-step-forward/. 

[2] Jarvis, M. (2023). Gender Persecution: Why Labels Matter. Obtained from: https://www.justsecurity.org/86754/gender-persecution-why-labels-matter/. 

[3] Davis, L. (2023). Dusting Off the Law Books on the Crime of Gender Persecution. Obtained from: https://www.justsecurity.org/86740/dusting-off-the-law-books-on-the-crime-of-gender-persecution/. 

[4] ICC. (2022). Policy on the Crime of Gender Persecution. Obtained from: https://www.icc-cpi.int/sites/default/files/2022-12/2022-12-07-Policy-on-the-Crime-of-Gender-Persecution.pdf. 

[5] Ringin, A. (2023). In conversation: the crime of gender persecution at the International Criminal Court. Australian Journal of Human Rights. Obtained from: https://www.tandfonline.com/doi/full/10.1080/1323238X.2023.2238384. 

[6] Oosterveld, V. (2005). ‘The Definition of “Gender” in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice? Law Publications. 93.Obtained from: https://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1098&context=lawpub. 

[7] ICC. (2022). Policy on the Crime of Gender Persecution. Obtained from: https://www.icc-cpi.int/sites/default/files/2022-12/2022-12-07-Policy-on-the-Crime-of-Gender-Persecution.pdf. 

Photograph

Women refugees from Syria. Women refugees from Syria at a clinic in Jordan  (9613479675), author: DFID - UK Department for International Development, 28 August 2013, source: Wikimedia Commons, CC BY 2.0 DEED., edits: cropped.