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In criminal cases, intent and motive are often conflated, especially in gender persecution cases before the International Criminal Court (ICC). This confusion can make prosecutors hesitant to charge gender persecution due to perceived difficulties in proving discriminatory intent.
To support prosecutors, the ICC’s Office of the Prosecutor released a Policy on the Crime of Gender Persecution in December 2022. Building on this, PILPG and Orrick’s memorandum delves into the distinction between intent and motive in gender persecution cases, drawing examples from past ICC prosecutions and other areas of law, such as employment discrimination.
This memo aims to clarify the prosecutorial burden of proof and encourage the appropriate charging of gender persecution.