By: Alexandrah Bakker, Junior Research Associate, PILPG-NL
On November 25, the world once again marks the International Day for the Elimination of Violence Against Women. This day is meant to raise awareness of the violence faced by womxn and girls worldwide, and the impunity that perpetrators of such violence enjoy. International criminal law plays a critical role in ending this impunity by ensuring that those who commit serious crimes against womxn and girls are prosecuted. The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) committed to “paying particular attention to sexual and gender-based crimes” in its 2014 Policy Paper. The ongoing case againstAl Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Al Hassan) may potentially make headway in the ICC’s fight against impunity for gender-based violence.
Al Hassan is the first defendant to be charged with gender-based persecution as a crime against humanity at the ICC. This post will explore the Al Hassan case, with a particular focus on the charge of gender-based persecution, and the potential implications of this case for international criminal law.
Al Hassan and the Crime of Gender-Based Persecution
Al Hassan is a Malian national who is accused of having committed crimes of religious and gender-based persecution as the de facto head of the Ansar Dine militia’s Islamic police in Timbuktu. In March 2012, Ansar Dine and al-Qaeda in the Islamic Maghreb took control of Timbuktu and the surrounding region. Between April 2012 and January 2013, they imposed new limitations on the everyday lives of womxn based on Sharia law. For example, womxn were made to follow a strict dress code, they were not allowed to go outside without being accompanied by a man, and they were not allowed to be alone with men other than their husbands. In schools, boys and girls were separated. Many womxn were forced into marriage with members of the militia. Those found to be in violation of the rules were beaten and imprisoned, and sometimes even raped while in detention.
On July 14, 2020, in her opening statements during the trial, Prosecutor Fatou Bensouda said, “it was the women and girls of Timbuktu and the region who were targeted and suffered the most.” The Document Containing the Charges against Al Hassan explains that these limitations imposed on the lives of womxn constitute a violation of many of the fundamental rights accorded to womxn and girls in international law. This is why the OTP has pursued the charge of gender-based persecution.
While persecution as a crime against humanity is not new to international criminal justice, there was no statutory precedent for gender-based persecution until the adoption of the Rome Statute of the International Criminal Court. Gender-based persecution is listed as a crime against humanity in Article 7(1)(h) of the Rome Statute. Article 7(2)(g) defines persecution as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” Lastly, Article 7(3) defines the term “gender” as referring “to the two sexes, male and female, within the context of society.”
Questions
Commentators like Rosemary Grey, Indira Rosenthal, and Valerie Oosteverld have identified a few issues that the Court may encounter when applying these provisions. The first is the question of how to define “gender.” The current definition seems to combine two opposing views on how “gender” may be defined: a view strictly based on biological sex (“the two sexes, male and female”) and a view in which gender is a social construct that goes beyond sex (“within the context of society”). The OTP’s 2014 Policy Paper takes the latter approach. Experts have encouraged this view as well.
Moreover, commentators have advocated for an approach that does not interpret gender-based persecution restrictively as involving only crimes committed against a certain gender group. Rather, they suggest that this persecution should be understood as involving crimes committed against any individual due to the perpetrator’s perceived notions of gender roles.
In addition, the Al Hassan case affords the Court an opportunity to affirm the possibility of persecution on intersecting grounds. Al Hassan is charged with persecution based on both gender and religion. Previously, the International Criminal Tribunal for Rwanda has recognized the intersection of gender and ethnicity in comments and actions directed against Tutsi womxn during the 1994 Rwandan genocide. Commentators have criticized the OTP for ignoring this intersectionality in the Yekatom and Ngaïssona case at the ICC.
While gender-based persecution is a relatively new concept in international criminal law, there is some jurisprudence that may be instructive to the ICC’s judges. First, there is the ICC Trial Chamber’s own decision in the Ntaganda case. In this case, the ICC showed a willingness to address pervasive sexual violence in the Democratic Republic of the Congo by finding Bosco Ntaganda guilty of war crimes for rape and sexual violence committed against members of his own militia. Second, there is the previous case law on persecution and on gender from the ad hoc criminal tribunals. While the Statute of the International Criminal Tribunal for the former Yugoslavia did not recognize gender as a grounds of persecution, its case law has recognized rape and sexual assault as acts of persecution based on other grounds, and may offer insights on the intersection of gender and other identities (see the decisions in Krstić, Stakić, and Brđanin). Third, international refugee law has long recognized persecution related to gender, and has had the opportunity to address the issues described above, though its approaches are not always seen as satisfactory. Fourth, international human rights law uniformly reads gender as a social construct that is not confined to biological sex. This is especially significant because Article 7(2)(g) of the Rome Statute defines persecution through reference to fundamental rights recognized in international law, and the ICC has a rich tradition of marrying international criminal law with international human rights law.
Implications
The way the judges choose to address these issues could have far-reaching implications. First, the Al Hassan case may impact future cases within the ICC itself. The OTP has identified evidence of gender-based persecution in its preliminary examination of the situation in Nigeria. Similarly, although the decision authorising an investigation into the Bangladesh/Myanmar situation identifies persecution only on religious and ethnic grounds, some have also identified this as a potential case where gender-based persecution may be charged. The outcome of the Al Hassan case may impact the way the OTP decides to pursue this charge in the future, if at all.
Second, the Al Hassan case may have implications on cases brought before forums other than the ICC, notably any future cases involving the crimes committed by ISIS against Yazidi womxn and girls. The ICC does not have territorial jurisdiction over many of ISIS’s crimes as neither Syria nor Iraq are State Parties to the Rome Statute. Furthermore, the United Nations Security Council has refused to refer the situation to the ICC, whereas such a referral would grant the Court jurisdiction over crimes committed in non-States Parties. The OTP has previously also declined to open a preliminary examination based purely on the crimes committed by ISIS members with the nationality of a State Party. Therefore, these cases are more likely to be pursued via other legal avenues, but the ICC’s decisions can still be of relevance.
Last, the International Law Commission (ILC) is currently in the process of drafting articles on crimes against humanity. While these articles initially adopted the Rome Statute definition of “gender” word-for-word, this decision was criticized and the definition was eventually removed altogether. Should the ICC provide clarification on the Rome Statute definition of “gender” during the Al Hassan case, this could also influence the work of the ILC.
Conclusion
Al Hassan may be the first defendant to be charged with persecution on the grounds of gender, but it is unlikely he will be the last. The way the ICC’s judges deal with this charge will therefore be of interest not only for the outcome of Al Hassan’s case, but also for the broader development of international criminal law.