November 2020

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

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

This month saw significant developments in the domestic prosecution of international crimes.  In the Democratic Republic of the Congo, a military court handed a long-awaited conviction against former rebel leader Sheka.  Meanwhile, Australia and the United Kingdom adopted differing approaches to allegations of war crimes committed by their armed forces overseas.

EUROPE

Germany | Syrian state torture trial continues in Koblenz

The lawyers representing the joint plaintiffs in the al-Khatib trial, which deals with allegations of Syrian state torture, argued that crimes of sexual violence should be charged as crimes against humanity.  At the moment, the charges of rape and sexual assault are being dealt with as ordinary crimes under German criminal law. [November 19, 2020]

Germany | Syrian torture trial: The “Caesar” files in court for first time

 An expert witness in the al-Khatib trial testified that the Caesar files serve as evidence of the systematic torture and killings of detainees in Syria since 2011.  The Caesar files were first published in 2014 and contain 55,000 photographs depicting the torture inflicted upon 11,000 victims. [November 12, 2020]

Germany | German woman charged for crimes against humanity in Syria

German federal prosecutors charged Nurten J. with war crimes for living in a home that was taken by ISIS from its owners.  They also charged her with crimes against humanity for participating in the enslavement of a Yazidi girl. [November 11, 2020]

Bosnia and Herzegovina | Bosnian army officers charged for killings of prisoners

The Bosnian state prosecution charged two former Bosnian Serb army officers, Radomir Nedic and Ratko Djurkovic, with crimes against humanity and war crimes for an attack carried out against Bosniak civilians in July 1992. [November 4, 2020]

France | France seeks trial ofLiberian rebel leader accused of crimes against humanity

French prosecutors requested a trial against Kunti K., a former Liberian rebel leader accused of committing acts of torture in 1993 and 1994 during Liberia’s civil war. [November 4, 2020]

United Kingdom | MPs pass bill to protect UK soldiers from prosecution

The United Kingdom’s House of Commons passed the Overseas Operations Bill, which is intended to protect the United Kingdom Armed Forces from “vexatious” claims over their actions overseas. [November 3, 2020] 

The United Kingdom Parliament’s Human Rights Committee published the results of its legislative probe into the controversial Overseas Operations Bill.  The Committee found that the Bill would make it more difficult for victims to obtain justice for war crimes committed by UK Armed Forces overseas. [October 29, 2020] 

AFRICA

Democratic Republic of the Congo | Sheka and his wingman receive life sentences, victims are finally recognized

A military court in the Democratic Republic of the Congo convicted former militia leader Ntabo Ntaberi Sheka and his ally Séraphin Nzitonda, alias Lionceau, of war crimes.  Both defendants received life sentences for the war crimes of murder, sexual slavery, and the recruitment and use of child soldiers.  The court additionally found Sheka guilty of the war crime of pillage and found Lionceau guilty of the crime against humanity of rape. [November 23, 2020]

Sudan | Sudan declares amnesty except for war crime suspects

Sudan has declared amnesty for “all those who carried arms or took part in military operations or war.”  The amnesty “excludes those with arrest warrants issued by the International Criminal Court or […] those wanted for genocide or crimes against humanity.” [November 13, 2020]

AUSTRALIA

Australia | Report finds evidence of war crimes by Australian special forces in Afghanistan

The Brereton report is the result of a four-year administrative inquiry into alleged war crimes committed by Australian soldiers in Afghanistan between 2005 and 2016.  The report found that the special forces were responsible for the killings of 39 Afghans in 23 separate incidents, and that these killings were deliberately covered up. [November 19, 2020]

Australian Prime Minister Scott Morrison announced that a special investigator will be appointed to conduct a criminal investigation into alleged war crimes committed by Australian armed forces in Afghanistan.  Where appropriate, the special investigator will refer cases to the Commonwealth Director of Public Prosecutions. [November 13, 2020]

THE AMERICAS

Argentina | Argentina dirty war: torture and baby theft trial underway

The trial of the 18 defendants accused of committing crimes against humanity in military detention centers in Argentina between 1976 and 1983 has begun.  The charges relate to acts of torture, killings, and the abduction of babies. [October 28, 2020]

November 2020

Monthly News Updates: Southern Cameroons – November 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.

VIOLENCE IN ANGLOPHONE REGIONS

Attacks on Schools | Attacks and Abductions at Three Schools

According to government reports, armed attackers assaulted three schools in the anglophone regions of Cameroon in the first week of November. At one of the schools, attackers reportedly abducted six teachers and ten students but released them after a short time. The armed assailants set fire to another school building. In all three cases, the attackers were armed but no casualties or injuries occurred. The government accuses anglophone separatists of being responsible for these attacks. These three instances come after a deadly attack on a school on October 24, killing eight students. [November 05th 2020]

Attacks on Schools | Teacher and Student Injured in Attack

Unidentified attackers severely injured a teacher and a student during an attack on a Primary and Secondary School in the anglophone South-West region. The attackers shot indiscriminately at students and teachers but did not cause deadly casualties. This incident marks yet another attack on schools, which the government attributes to armed anglophone separatist groups. [November 16th 2020]

Clashes with soldiers | Two Soldiers Killed in Ambush

Armed attackers killed two soldiers in an ambush in the anglophone North-West region. Different sources also report the death of a civilian and cite claims that the soldiers were responsible for this act. [November 18th 2020]

Clashes with soldiers | Soldiers Accused of Burning a Civilian House in Anglophone Region

According to eyewitness reports, soldiers burned down a civilian house during a raid of a village in the anglophone North-West region. The eyewitnesses further claim that soldiers looted homes and stores, while the majority of villagers fled into the nearby bushes.

[November 22th 2020]

Abductions | Cardinal and Traditional Ruler Abducted and later Released

Unidentified attackers abducted Cardinal Cristian Tumi and traditional chief Sehm Mbinglo on November 05, 2020, while travelling through the anglophone South-West region. The chief was on his way to return from a three-year-long exile, as he left the region due to security concerns. The abduction of the cleric and the traditional ruler provoked widespread protests. Government sources claim that armed anglophone separatists are responsible for the abduction. The cardinal was released on November 06, 2020, while the traditional ruler of the Nso people was set free on November 10, 2020. [November 10th 2020]

Abductions | Ten Villagers Abducted and Freed by Government Forces

Unidentified attackers abducted ten villagers from the South-West region on November 09, 2020, after the villagers reportedly did not comply with local regulations, imposed by armed separatist groups.  Government forces freed the kidnapped villagers on November 11, 2020. [November 11th 2020]

HUMAN RIGHTS IN CAMEROON

Opposition | Members of Opposition Tried by Military Tribunal

Members of the opposition movement faced a military tribunal in Yaoundé. The prosecution charged 36 individuals for their participation in demonstrations in September. The indictments are based on charges of revolution, rebellion, and the formation of mobs, for which the prosecution demands imprisonment for life. [October 31st 2020]

Opposition/Anglophone Activists | US Deports Cameroonians  

The US Department of Homeland Security continues to deport Cameroonian asylum seekers amidst strong criticism by human rights groups. Reportedly, 36 Cameroonian citizens were returned to Cameroon last week, marking the second such move in the last months. Among those deported are opposition figures and several activists from anglophone regions. Different news outlets report that deportees of the first transport were prosecuted or went missing on arrival in Cameroon. Human rights groups warn that the deportees will face torture, arbitrary imprisonment, and threats to their lives once returned to Cameroon. [November 10th 2020]

Opposition | Police Arrests Fifty Protesting Women 

Police forces arrested approximately fifty women in connection to protests in the capital Yaounde. Some of the women stripped naked during the protests to point out the extreme grief they are suffering. The women protested for the release of the opposition leader Maurice Kamto, who is confined to house arrest. Reports mention police brutality against the protestors. The arrested women currently remain in detention. [November 21st 2020]

PRESIDENT BIYA MARKS 38 YEARS IN OFFICE 

On November 06, 2020, President Paul Biya celebrates his 38 year anniversary as the president of Cameroon. The 87-year-old Biya is the second longest-ruling president on the African continent and the third-longest ruling non-monarchic leader in the world. [November 06th 2020]

The German KiK Case: From Failed Case Towards National Supply Chain Legislation

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

With the advent of globalization, the geographical scope of supply chains has greatly increased. A final product is made up from components that have traveled through various jurisdictions and that have been processed by different legal entities. This creates complicated legal questions, especially in cases of human rights violations along the supply chain. For instance: Who is responsible for these violations – the sub-contractor running the factory, or the retailer who does nothing to ensure compliance with human rights standards? Which jurisdiction is applicable – the jurisdiction of the state where the factory is located or the jurisdiction of the state where the product is sold? And which countries' laws should be applied? A German regional court was faced with these questions for the first time in 2019, when victims of a fire in a textile factory in Pakistan submitted a civil lawsuit against a German clothing company.  

Background of the Case

In September 2012, a fire in a textile factory in Karachi (Pakistan) killed 260 people and left 32 injured. According to an investigation by Forensic Architecture, the majority of these deaths and injuries could have been prevented, had the factory adhered to basic safety standards. A single retailer, namely the German clothing discounter KiK, bought around 70 percent of the products from the factory. As a result, critics alleged that Kik held partial responsibility as it could have effectively demanded adherence to basic safety standards. Following years of negotiations between KiK and victims´ rights organizations, the German retailer agreed to pay  compensation amounting to around six million US dollars to the victims, but refused to admit any wrongdoing. During the negotiation process, KiK pledged to waive its claims to statute of limitations regulations (the time limit of how long after the damage a lawsuit can be brought) in future lawsuits. A number of families found this offer inacceptable and decided to claim damages in a civil case in German courts. In 2016, four victim representatives - German law does not allow class action lawsuits - with the support of  two NGOs, filed a civil lawsuit at the regional court of Dortmund. 

Foreign Law Before Domestic Courts

But why should a German court have jurisdiction in a case of damages occurring in Pakistan? Article 63 (1) of Brussels 1 Regulation, in connection with paragraphs 12 and 17 of the German Code of Civil Procedure, allow for proceedings of international civil cases in the courts of the home state of the defendant.  According to Article 4 (1) of Rome 2 Regulation, the applicable law in these cases shall be the law of the state where the damages occurred. Thus, in this case, the German court applied Pakistani law  to evaluate  KiK´s liability for human rights violations by its Pakistani contractor. 

Statute of Limitations

The applicable Pakistani common law holds that personal injury  cases (called tort cases) involving bodily harm are time barred to two years after the injury occured. The court further concluded that under Pakistani law the parties cannot voluntarily make an exemption to this time limitation (English discussion of this argument here). The court also dismissed the argument that both sides agreed to be partially bound to legal obligations of the law of their choice, following Article 14 (1) (a) of Rome 2 Regulation. Lastly the court rejected the plaintiffs´claims that the Pakistani statute of limitations is incompatible with the ordre public (the fundamental legal principles of a state) of German law. The plaintiffs had argued that pursuant to Article 26 of the Rome 2 Regulation, the Pakistani regulation would negate effective legal protection (a core principle of the German legal system) in complex cases with an international dimension. Ultimately, the court dismissed the case on procedural grounds and thereby did not provide a decision on the merits. 

Proposed Supply Chain Legislation

Even though the KiK case did not provide a precedent on liability for human rights violations upstream the supply chain, it did provide an illustrative point for proponents of a German domestic supply chain law. These demands are directly linked to the unsatisfying dismissal of the KiK case on procedural grounds and the absence of a decision on the merits. The advocacy seems to fall on fertile ground as the position of key federal ministries seems to have changed from calling for voluntary industry commitments to efforts to pass concrete legislation. While the details remain up to negotiations, civil society campaigns use the KiK case to underline a key demand: the proposed law should make German standards applicable to damage claims from upstream the supply chain by designing the law as a mandatory rule (“Eingriffsnorm”).

Conclusion 

The KiK case, by publicly shining a light on the problems arising from missing legal certainty in “globalized” tort cases, has set the pretext for future national legislation in Germany. By doing so, Germany might follow legislation in France, the UK and the Netherlands (English discussion of the law here), all addressing certain aspects of global supply chains. However, a comparison of these laws indicates a patchwork of different objectives and approaches, maintaining disparity within the EU. Whereas the German law can probably contribute to legal certainty in Germany, EU solutions are necessary to ensure  harmonious protection of human rights within  global supply chains. 

Camellia Lawsuit and the Uncertainty Around the Law on Parent Company Liability for the Acts of Subsidiaries in English Law

By: Isabelle Jefferies, Junior Research Associate, PILPG-NL

If you are someone who likes avocados, who lives in Britain, and who shops at either Tesco, Sainsbury’s, or Lidl, you have probably bought avocados linked to serious allegations of human rights violations.  These allegations have resulted in a civil lawsuit that is currently underway before the British High Court in London.  The defendant in this case is a British agricultural company that imports avocados from a subsidiary in Kenya, and supplies them to leading British supermarkets.  

This blog post will briefly introduce the relationship between these companies, and the allegations made against them, before discussing the legal framework relevant to the lawsuit.   

Kakuzi and Camellia: Supplying British Supermarkets with Avocados

Kakuzi is an agricultural company that cultivates, processes and markets various products, including avocados.  It is the Kenyan subsidiary of Camellia, a British registered company and a global agricultural giant.  Until recently, Kakuzi was a prominent avocado supplier to British supermarkets, namely Tesco, Sainsbury’s, and Lidl.  However, in October 2020, the company faced public outrage following claims of human rights abuses.  As a result, the supermarkets stopped purchasing products from Camellia. 

Seventy-nine Kenyans, including former Kakuzi employees, began legal proceedings in the High Court of London against Camellia in October 2020.  They allege that, between 2009 and 2020, Kakuzi systematically violated their human rights.  In particular, they claim that security guards, employed to protect the plantations, killed one man, and subjected others to rape, violent attacks, and false imprisonment, among other forms of serious mistreatment.

There have been unsuccessful attempts to hold Kakuzi accountable for the alleged human rights violations in Kenya.  Notably, in 2018, the United Nations Working Group on Business and Human Rights visited Kakuzi’s plantations.  In 2019, it submitted a report to the Human Rights Council, in which it encouraged Kakuzi to complement the police investigation into the allegations by conducting its own investigations.  Furthermore, it called on Kakuzi to strengthen the training and oversight mechanisms of its security guards.  In spite of the report, accusations of fresh violations by Kakuzi’s security guards have since been reported.  According to the Kenyan Human Rights Commission, Kakuzi has evaded accountability for too long, due to its economic, political and legal influence in Kenya.  As a result, victims are now seeking redress in British courts.  

English Law on Parent Company Liability for the Acts of its Subsidiaries

As a common law system, there is no statute governing parent company liability for the wrongful acts of its subsidiaries, such as human rights violations, in English law.  

For a parent company to be held responsible for harm caused by its subsidiary, it must be established that it owes a duty of care to the victims.  Generally, English law does not impose a duty to prevent third parties causing damage to another, unless the test found in Caparo v. Dickman (1990) is satisfied.  This test establishes that a duty of care will be imposed on a defendant whenever it can be shown that the harm to the claimant was foreseeable, that there was a relationship of proximity between the claimant and the defendant, and that it is fair, just, and reasonable to impose a duty of care.  

Furthermore, the jurisprudence of English courts has explicitly recognized the liability of parent companies for the tortious acts of its subsidiaries, under certain circumstances.  Chandler v. Cape (2012), decided on appeal, was a landmark case in this regard.  The Court of Appeal established that a company will have duty of care towards the employees of its subsidiary if certain criteria, reflecting the proximity and reasonableness limbs of the Caparo test, are met.   Namely, the parent company and its subsidiary have similar businesses, the parent company knew, or ought to have known, that the system of work of its subsidiary was unsafe, and lastly, the parent company knew, or ought to have foreseen, that its subsidiary or its employees would rely on this knowledge for the protection of the employees (para. 80). Having said that, the court did stress that parent companies have separate legal personalities from their subsidiaries (para. 67), so unless the previous criteria is met, the parent company will not have a duty of care for the harm caused by its subsidiaries.  

Although the Chandler case represents a step towards holding parent companies accountable for harm caused by its subsidiaries, it is limited in scope.  In fact, it only offers a legal basis for a claim against a parent company for claimants who are employees of the subsidiary. Others who may have suffered harm as a result of the subsidiary do not have any means of redress under this precedent.  In other words, in the Camellia lawsuit, those claimants who are not employees, or former employees of Kakuzi, have no basis for their claims.   

 Yet, in Lungowe v. Vedanta Resources (2017), the Court of Appeal acknowledged that a duty of care could be owed by a parent company for the harm caused to all persons “affected by the operation of a subsidiary.” (para.88)  This approach would enable those claimants in the Camellia lawsuit who are not employees, or former employees of Kakuzi, to argue a case against Camellia nevertheless.  The case reached the Supreme Court in 2019, and it was emphasized that the criteria set out in the Chandler case is not strict.  In fact, the existence of a parent company’s duty of care in relation to the harm caused by its subsidiary depends more generally on the extent to which the parent company took over, intervened in, supervised, or advised the management of the relevant operations of the subsidiary (para. 49).  In essence, the parent company’s duty of care is contingent on the extent to which it exercises control over its subsidiary.  There are many models of management and control used by multinational corporations (para. 51), so this pragmatic approach, that looks at the reality of the relationship between the parent company and its subsidiary, is warranted.  According to the firm representing the Kenyan claimants, there is clear evidence that Camellia tightly supervises and controls Kakuzi, and Camellia’s managers also manage Kakuzi.  As a result, it seems that the claims against Camellia would satisfy the test set out in Lungowe, and that it would be held responsible for the human rights violations committed by Kakuzi’s security guards. 

However, in Okpabi v. Shell (2018), the Court of Appeal did not follow this pragmatic approach.  The majority held that a parent company owes a duty of care for the actions of its subsidiaries only where it controls, or shares control of, the material operations of the company.  This is a stricter approach, whereby the parent company does not owe a duty of care when it merely issues mandatory policies and standards applicable to its subsidiaries in order to ensure conformity with particular standards (para. 89).   In fact, the claimants would need to show that Camellia assumed responsibility for, or controled the day-to-day operations of Kakuzi (para. 205).  On the basis of the evidence that is publicly available, it is hard to determine whether the claimants would meet this standard.  However, it is safe to say that this test sets out a higher standard of control that Camellia must have over Kakuzi, compared to the test set out by the Supreme Court in Lungowe.  As a result, under the former test, the responsibility of Camellia for the harm caused by Kakuzi would be harder to attribute.  Having said that, the case is currently being appealed in the Supreme Court, so this approach may be overruled, and substituted with the more pragmatic approach taken in Lungowe.   

Conclusion

The law surrounding the liability of parent companies in relation to harm caused by their subsidiaries is vital for the vindication of rights of victims of corporate abuses.  However, at the moment, this area of law is filled with many uncertainties, so it is hard to determine whether Camellia will ultimately be held liable for the alleged human rights violations committed by its Kenyan subsidiary, Kakuzi.  The approach adopted by English courts in the upcoming months will have extensive implications for victims from all around the world, whose final attempt to seek redress lies in the hands of the judges of English courts. 

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.