19TH SESSION OF THE ASSEMBLY OF STATES PARTIES
8 December 2020
Name of the Side Event: Accountability for Gender Persecution as a Crime Against Humanity (Co-hosted by Argentina, Finland, UN Women, and Justice Rapid Response (JRR))
Report by: Raghavi Viswanath, Research Associate PILPG-NL
Highlights:
Gender-based persecution can serve as a tool to reimagine international criminal justice so as to factor intersectional discrimination of marginalized groups.
Increased involvement of victims and survivors is key to better identifying and conceptualizing gender crimes/discrimination.
Formal accountability can only succeed if it is accompanied by concerted training, education, outreach, and community participation in accountability efforts in conflict zones.
The event began with welcome remarks by Ambassador Oyarzabal who made poignant remarks on how womxn, girls, and members of the LBGTQ+ community have been prone to violence and discrimination on the basis of their gender identity from the time of the Holocaust. Despite growing awareness, gender concerns are rarely taken into account in transitional justice and peace processes. This forms part of the deficiency in the legal conceptualization of gender discrimination. Even in international criminal law, gender-based persecution did not find recognition up until the adoption of the Rome Statute. In light of this, the Al Hasan case at the International Criminal Court represents a watershed moment for international criminal justice’s understanding of gender persecution and is likely to pave the way for similarly situated victims in Iraq and Colombia. Ms. Suomalainen then briefly addressed Justice Rapid Response’s motivations in putting the event together, given its long-standing efforts to include survivors in the peace process. She was followed by Ambassador Saarela who echoed the need to challenge socially constructed roles and attributes assigned to womxn and men. She commended Justice Rapid Response and the other speakers for their efforts towards garnering recognition of survivors of gender-based persecution as powerful engines of change and using their stories of strength to open up avenues for redressal.
Professor Davis began her presentation by highlighting the gender-based persecution is used as a punitive tool against those perceived to transgress assigned gender narratives—whether it is through the roles they perform in society or their attributes or gender expression. When these harmful gender narratives intertwine with other discriminatory narratives, they reinforce racism and xenophobia. Therefore, the time is ripe for the intervention of international criminal justice. However, within the international criminal lens, gender-based persecution charges have seen little success. Professor Davis surmised that this was because we cannot recognize what gender-based persecution even looks like, citing a range of factual examples that fall within the ambit of persecution. Similarly, unless a gendered lens is employed, sexual crimes are often confined to acts that use sexual means (such as SGBV) and do not account for the broader range of acts involving humiliation and stigma to non-conforming individuals (occasionally including heteronormative men). Conversely, a gendered lens helps us appreciate why a victimizing narrative should not be invoked to deny the rights-holding capacity and status of womxn and LGBTQ+ members. A survivor-centered approach (as endorsed in Security Council Resolution 2467) offers a new entry point into peace negotiations, one that allows a holistic understanding of harm and suffering to be factored into the justice calculus. A survivor-centered approach also carries a strong signaling effect in terms of the international community’s commitment to ending impunity.
Natia Navrouzov then spoke of the contribution that civil society actors such as Yazda make towards bringing attention to the survivor narrative. Yazda primarily works in Iraq where it documents the stories of Yazidi victims of ISIS’s atrocities and accrues out advocacy campaigns. It has already collected testimonies from 1700 survivors and evidence from 100 crime sites. Yazda focusses on educating, training, and sensitizing communities and survivors. Such an approach is imperative given the strong stigma attached to survivors of sexual abuse in patriarchal communities such as the Yazidis. Yazda then uses this information to initiate and support accountability efforts. In Iraq, it shares information with the UNITAD, which was set up via Security Council Resolution 2379 to centralize evidence of ISIS crimes and transmit it to courts in third party States. Unfortunately, there are no judicial avenues available in Iraq, where domestic courts currently only prosecute ISIS fighters for joining the terrorist group. Nonetheless, there are ongoing debates about the setting up of the Iraqi High Tribunal to try other crimes committed by the ISIS. As a result, survivors often have to pursue redressal mechanisms outside Iraq. In recent years, third party States such as Germany have prosecuted their own nationals for involvement in the ISIS, as well as Iraqi members of ISIS using universal jurisdiction. Given their broad scope, such jurisdictional tools offer a platform for charges of gender-based persecution to be litigated. Ms. Nazrouzov ended her presentation with recommendations to the Iraqi government. She called on the Iraqi government to codify crimes against humanity and genocide in its domestic penal code, and consult victims in the drafting of the constitutive charter of the Iraqi High Tribunal. She also suggested increased collaboration between non-Iraqi courts and investigative units towards uncovering evidence of gender-based persecution of Yazidis.
Nisreen, a Yazidi survivor, followed with a moving presentation. Nisreen is one of many survivors who have demanded a seat at the decision-making table in the justice talks in Iraq. She made an impassioned call to the international community to be receptive to the claims of the Yazidis and prompt the Iraqi government to deliver justice to the Yazidis, whose sufferings have gone unnoticed for years.
Emily Keeney, who recapped the key takeaways from the presentation, was the final presenter. Firstly, that gender-based persecution is a distinct crime against humanity that can benefit from unpacking for those not familiar with international criminal law. Secondly, that gender discrimination often intersects with ethnic and religious persecution. Recognizing such intersectionality allows for the law to more accurately confront the social reality and motivations for the crime. It is also better able to guarantee non-repetition to the wider universe of victims and survivors. Thirdly, international criminal justice and transitional justice efforts must use a survivor-centered approach. All of society benefits from inclusive peace and justice processes. In fact, the degree of survivor involvement has been studied to bear a positive correlation with the prospects of effective agreement and implementation. Admittedly, criminal accountability is one channel for justice. However, transitional justice should not be confined to the criminal realm. Efforts must focus on non-repetition and institutional reform.
During the question-and-answer session, the panelists re-iterated the value of outreach activities and reparation programs in integrating the survivors’ needs with the more formal accountability efforts. Responding to the need for better training of investigative units, Professor Davis shared insights on how training modules can be re-oriented towards identifying why the crimes in question occurred, whether there was e-existing discrimination—in law and in practice before conflict broke out.