Gender-Based Persecution at the International Criminal Court: Questions and Implications

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. 

Bangladesh’s Capital Punishment for Rape Convictions: The Influence of Activism and Social Media on Lawmaking in Asia

BY: SUZANNE BROER, JUNIOR RESEARCH ASSOCIATE, PILPG-NL

After a video emerged on the internet on October 4 this year, where a group of men are seen attacking and raping a woman, a wave of protests washed over Bangladesh calling for reform of the domestic rape legislation.  The protests aimed to draw attention to the stigma surrounding rape and the blame that appears to be put on the victim rather than the perpetrator.  As a response to the protests, Prime Minister Sheikh Hasina decided that, instead of life imprisonment, capital punishment will be awarded to those convicted for rape. Speaking on Hasina’s behalf, Law Minister Anisul Haq cited the deterrent effect capital punishment as  playing a part in Hasina’s decision to adjust the legislation.  Although concerns regarding the effectiveness of this measure have been expressed by Human Rights Watch and other civil society actors parties, this instance exemplifies the potential influence of activism and social media on lawmaking. 

The Pressure of Covid-19

It appears that violence against womxn has increased by almost 70 percent during the Covid-19 pandemic, in addition to potential victims being disconnected from their support systems. This increase has been spilling over on social media and the viral video of the rape in Bangladesh is an example of this trend. The video that was the direct cause for the recent protests did not only show a painful crime but also shone a light on the stigma contributing to violence against womxn. 

Elimination of Discrimination and Violence Against Womxn

Violence against womxn is a manifestation of the unequal power relationship between men and womxn and takes place all around the world.  South Asia is an area in which sexual violence is more prevalent than others: it contains some of the world’s most powerful economies but also two-thirds of its poorest people.  Challenges resulting from socioeconomic disparities are inherently linked to gender. 

Throughout the world, issues regarding violence against womxn are covered by the umbrella convention regarding womxn’s rights: the Convention on the Elimination on All Forms of Discrimination Against Women (CEDAW).    Several South Asian states, including Bangladesh, have ratified the CEDAW and have made formal commitments to gender equality.  Nonetheless, factors such as limited resources, inconsistencies in safeguarding justice, or even disruption from natural disasters and conflicts have complicated the matter tremendously.

 Bangladesh had vowed to reduce and eliminate violence against womxn and children by 2015, in line with its commitments to CEDAW.  The Prevention of Oppression Against Women and Children Act (POAWC Act) of 2000 has contributed to the reduction of violence against womxn and children by prescribing life imprisonment as a sentence.  Nevertheless, reduction of violence against womxn can be made more significant: legislation, outreach and the behavior of police towards survivors can use improvement.  A viral video was capable of spiking the public attention regarding the general attitude towards violence against womxn, leading to the introduction of the death penalty.  This is because the video did not only reveal the crime itself, but also society’s attitude towards the crime.

The Surge of Social Media Protests

It is no surprise that communications technology plays a part in protests: it is most convenient and effective to spread information regarding ongoing injustices and mobilize people through social media.     The Arab Spring protests and the more recent Black Lives Matter protests are examples of this.  More specifically, in the Nirbhaya case, the protests that arose in the aftermath of a gang rape had a strong influence on criminal justice in India.  In fact, the protests are credited for the introduction of the 2013 Criminal Law Amendments and the death sentence in India’s rape jurisprudence.  However, such influence of social media and protests arguably impugns the legality doctrine in criminal law: law has to be clear, ascertainable and non-retrospective.  An adjustment of the law after the fact interferes particularly with the principle of non-retroactivity if the perpetrator is prosecuted based on the new legislation. Public opinion might also influence the impartiality of the judges, pressuring them to reach a conviction, often to the disadvantage of the fair trial rights of the accused.

What is special in the combination of violence against womxn and the role of social media in protests is inherent in the way that the problem persists: blame is attributed to the victim rather than the perpetrator and, as a consequence, the violence is heavily underreported.  Previously, cases of acid attacks on women have been handled relatively successful by Bangladesh, arguably because the consequences of acid attacks are visible and they thus visualize the violence perpetrated on women.  This changes the dynamic: exposing the violence, in a way, equals ‘reporting’.  The exposure of stigmas allows for them to be addressed and works towards their elimination.

 Conclusion

 Violence against womxn is prevalent in Asia, but Bangladesh has long taken measures to reduce the problems.  It appears to be rather difficult to do so, as socioeconomic challenges and their effects on the unequal power relationship between women and men are complicated by limited resources and conflicts.  In times where the Covid-19 pandemic puts an additional strain on the status of womxn in society, social media can expose the inherent preconceptions that underlie the problems.  As a result, a bottom-up influence from the public can have an effect on legislation, just as it did in the example of Bangladesh.

October 2020

Monthly News Updates:  Human Rights Mechanisms - October 2020

By: Shaghayegh Javadinia, Junior Research Associate, PILPG-NL 

The following post highlights the work of regional and international human rights mechanisms around the world in protecting human rights and combating violations thereof, especially during the COVID 19 pandemic.

EUROPE 

European Court of Human Rights | Overcrowding in Oporto prison constituted degrading treatment for inmates

In the case of Bădulescu v. Portugal, the applicant, who is a Romanian national, was imprisoned for six and a half years in Oporto prison (Portugal) for theft.  The applicant contested the condition of detention in Oporto prison during the time in which he was serving his sentence.  The Court noted that the overcrowding and lack of personal space (less than three square meters per person) amounted to degrading treatment under Article 3 of the ECHR. describing it as a “hardship of an intensity exceeding the unavoidable level of suffering inherent in detention”.[October 20, 2020] 

European Court of Human Rights | Violation of Convention concerning the procedural safeguards relating to expulsion of aliens

The case of Muhammad and Muhammad v. Romania concerns two Pakistani nationals living lawfully in Romania who were declared undesirable and deported based on terrorism allegations.  The Court found a violation of their right to information about the reasons for expulsion since there was no permission for them to access important documents (classified as ‘confidential’) concerning their case. [October 15, 2020] 

European Court of Human Rights | The Court indicates interim measures in Nagorno-Karabakh conflict

Following a further escalation of the conflict in Nagorno-Karabakh, the Court indicated interim measures for Turkey and all states involved in the conflict to comply with their obligations under the ECHR and to refrain from actions that breach Convention rights of civilians. [October 06, 2020] 

On 7 October 2020, Turkish authorities requested the Court to lift the interim measures indicated concerning the Nagorno-Karabakh conflict.  Reiterating the imminent risk of irreparable harm and urgency of the situation, the Court rejected Turkey’s request to lift any part of the indicated interim measures. [October 14, 2020] 

AFRICA 

African Commission on Human and People’s Rights | The Commission welcomes the landmark decision of the Tunisian court to remove discriminatory reference from a surname

The Commission welcomes the decision of a Tunisian Court to authorize the removal of the word “Atig” (“liberated by”) from the identity documents of the 81-year-old Karim Dali.  This word has been used on identity documents to mark individuals as descendants of slaves.  According to the Commission, this decision is a major step towards the fight against discrimination and respect for dignity, as per Articles 2 and 5 of the ACHPR. [October 22, 2020] 

African Commission on Human and People’s Rights | Concerns about human rights violations by law enforcement institutions in Nigeria

The Commission calls on Nigeria to take the necessary measures to address the alleged human rights violations committed by the Special Anti-Robbery Squad (SARS) of the Nigerian Police Force.  The Commission calls for a dissolution of the SARS but also recommends measures for reforming the unit and investigating the alleged violations. These violations include, among others, extra-judicial killings, torture, and unlawful arrests.  [October 14, 2020] 

THE AMERICAS 

Inter-American Commission on Human Rights | Publication of practical guides on human rights in the context of COVID 19

Through its Rapid and Integrated Response Coordination Unit on COVID 19 Pandemic, the Commission has been publishing a series of handbooks on public policy recommendations and practical guidelines in response to COVID 19.  The most recent guide addresses standards to ensure respect for the grieving, funeral rites, and memorials of those who died during the COVID 19 pandemic. [October 15, 2020] 

Inter-American Court of Human Rights | Argentina held responsible for the illegal, arbitrary, and discriminatory detention and subsequent death of an afro-descendent person

The Court accepted the full acknowledgment of Argentina for its responsibility in violation of the rights to life, personal integrity, and personal liberty of José Delfín Acosta Martínez, who died in custody following his arrest and detention in 1966.  The Court has ordered Argentina to provide reparation and to train its police force against racial profiling and detaining people of African descent. [October 14, 2020] 

Inter-American Commission on Human Rights – IAComHR | Concern about threats to freedom of expression of journalists in Nicaragua

Two new bills have been presented before the Nicaraguan National Assembly that raise concerns about the freedom of expression of journalists and the media in Nicaragua.  Additionally, the Commission and its Office of the Special Rapporteur for Freedom of Expression (RELE) have observed an increase in criminal cases and financial sanctions against journalists and the media in Nicaragua. [October 07, 2020] 

UN MECHANISMS 

Committee on the Rights of the Child | Spain’s age assessment procedures violate migrant children’s rights 

Within 14 cases examined, the Committee found various violations of the Convention on the Rights of the Child, such as the right to identity, the right to be heard, and the right to special protection of children deprived of their family environment.  In all cases, Spain made erroneous assessments of the migrant children’s age and did not provide the minors with the necessary protection.  The Committee calls on Spain to prioritize the best interests of the child throughout the age assessment process. [October 13, 2020] 

Human Rights Council (Special Rapporteur on the rights of indigenous peoples) | Indigenous people have been left out of COVID 19 responses

The UN expert calls for pandemic emergency protocols to consider the rights of indigenous people, and to incorporate traditional indigenous knowledge into their response to COVID 19.  The Expert highlights the importance of allowing indigenous people to exercise their right to administer their health programs while providing them with accessible and non-discriminatory national health support. [October 12, 2020] 

Human Rights Council (Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression ) | Egypt uses terrorism trials to target human rights activists

During the COVID 19 pandemic, Egypt has been using exceptional “Terrorism Circuit Courts” to charge human rights defenders with acts of terrorism. Egypt uses these courts to silence the activists, and they also infringe many fair trial guarantees and allow for detention as a form of de facto punishment. [October 08, 2020]

October 2020

Monthly News Update: Southern Cameroons – October 2020

By: Kristoffer Burck, Junior Research Associate, PILPG-NL

This post collects updates from the past month concerning relevant developments in Southern Cameroons. The information is drawn from local and international online sources.

SCHOOLS IN SOUTHERN CAMEROONS

Attack on School | Bilingual School in Anglophone Region Attacked 

A bilingual school in Kumba town in the anglophone South-West Region of Cameroon was attacked by armed men on Saturday, October 24th. Different accounts report between four and ten deaths and dozens of wounded students. News outlets report also that the attackers arrived on motorbikes, wearing civilian clothes and carrying firearms and machetes. Witnesses describe indiscriminate attacks on students in classrooms. Among the victims are children as young as nine years old. [October 24th 2020]

Attack on School | Disagreement between Government and Separatists regarding responsibility for the attack

Different separatist groups have declared that the military is responsible for the attack on a school in the South-West region. Prominent actors, like Ayuk Tabe and the Southern Cameroon Civil Society Consortium, have alleged that the government forces conducted the killings at a bilingual school, labelling the attack a “genocide”. 

The Cameroonian Minister for Communications alleges that the Amazonian separatists conducted the attacks. In the same statement, he dismisses claims that the government forces might have been responsible. 

There are contradicting witness reports and no definitive evidence to support allegations of either side has been presented yet. [October 25th 2020]

Reopening of Schools | Government Officials Declare Schools are Opened

According to government officials, some schools in the anglophone North-West and South-West regions of Cameroon reopened on October 9th. A majority of schools have been closed for four years as a result of the ongoing conflict. Some anglophone activists backed reopening, while other factions remained reluctant to support the move, citing concerns about influence of the Cameroonian government on curricula. [October 9th 2020] 

Reopening of Schools | Teachers Refuse to Return

Attempts to reopen schools in the anglophone regions are met with resistance by teachers. More than 3.000 primary and secondary school teachers did not report to their schools in the first week, citing security concerns. The Cameroonian government offered the military transportation to schools, a move teachers have described as insufficient. [October 11th 2020]

POLITICAL OPPOSITION IN SOUTHERN CAMEROON

Opposition |  OHCHR Experts Call for Release of Opposition Figures 

High level experts of OHCHR express concern for the detention of opposition figures following protests in September. The press release from October 12th calls for the immediate end to detention of approximately 200 protesters. It further calls for an independent investigation into human rights abuses, allegations of forced disappearances, and ill-treatment of protesters. The experts specifically request the end of enforced house arrest of the opposition leader Maurice Kamto. [October 12th 2020]

Opposition | Opposition Leader Urges Supporters to Continue Resistance

In a rare statement, opposition leader Maurice Kamto addresses his supporters and proclaims that the resistance towards the current government will continue. As he is currently placed under effective house arrest, Kamto voices his optimism that he will win ongoing legal disputes on the illegality of his detention. [October 22th 2020]

October 2020

Monthly News Updates: Domestic Prosecution of International Crimes - October 2020

By: Alexandrah Bakker, Junior Research Associate, PILPG-NL 

This month saw prosecutions initiated in several states for international crimes. Most of these cases are in the early stages. However, the Bosnian state court convicted a former Serb Army commander for aiding genocide. 

EUROPE

Bosnia and Herzegovina | Bosnian state court convicts former Bosnian Serb Army battalion commander for assisting in genocide

The Bosnian state court sentenced Srecko Acimovic, former commander of the Bosnian Serb Army, to nine years in prison.  The court found that Acimovic knowingly assisted in detaining and killing over 800 Bosniak men from Srebrenica in July 1995,. [October 16, 2020] 

Bosnia and Herzegovina | Former Bosnian Serb reservist police officer on trial for crimes against humanity, pleads not guilty  

Predrag Bastah, a former officer in the Public Security Station in Vlasenica,  pled not guilty during his trial before the Bosnian state court for the killing of 37 Bosniak civilians.  Bastah is already serving a 22-year sentence for war crimes. [October 15, 2020]

France | Reports of French court’s willingness to try Rwandan doctor or genocide and crimes against humanity

Reports suggest that Eugène Rwamucyo, accused of being a member of the war committee that planned the genocide of Tutsis in southern Rwanda, will face charges of genocide and crimes against humanity before the French Cour d’Assises.  In 2007, Rwandan courts sentenced Rwamucyo in absentia to life in prison for his participation in the 1994 genocide, but the French courts refused to extradite him. [October 15, 2020]

Germany | NGOs file criminal complaint against the Syrian government for chemical weapons attacks

The Open Society Justice Initiative, the Syrian Center for Media and Freedom of Expression and the Syrian Archive filed a criminal complaint with the Office of the German Federal Prosecutor for the use of chemical weapons in Syria.  The complaint specifically relates to attacks using sarin in Ghouta in 2013 and in Khan Shaykhun in 2017. [October 7, 2020] 

THE AMERICAS

Ecuador | Confederation of Indigenous Nationalities of Ecuador files lawsuit against President Moreno for crimes against humanity

The Confederation of Indigenous Nationalities of Ecuador filed a the lawsuit accusing Ecuadorian President Moreno and other officials (including the Defense Minister) of crimes against humanity allegedly committed during the October 2019 protests. [October 13, 2020]