Gender persecution
(source: Sydney Law School)
The ICC is the first international criminal court that prohibits persecution on the basis of gender explicitly. Under Article 7(1)(h) of the Rome Statute, “gender persecution” is the crime against humanity of persecution on the grounds of gender. Gender persecution is committed against persons because of sex characteristics and/or because of the social constructs and criteria used to define gender.
In 2022 the ICC developed a new Policy Paper on Gender Persecution that takes a comprehensive approach to sexual and gender-based crimes that may amount to the crime against humanity of gender persecution. It recognises all of its victims, namely women, girls, men, boys, and LGBTQI+ persons. It also recognises that acts or crimes of gender persecution may include, but are not always manifested as, forms of sexual violence or any physical violence or physical contact. They may include psychological abuse. They may also take forms other than physical injury to persons, including acts such as cultural destruction or confiscation and prohibition of education for girls. It is hoped that improved accountability for gender persecution crimes can help to disrupt the normalisation of institutionalised gender discrimination and violence.
The ICC Prosecutor has taken steps in actively charging gender persecution in a number of cases. First, in the case of Al Hassan Ag Abdoul Aziz, where the gender persecution is linked to the treatment of females. Al Hassan is suspected of crimes against humanity allegedly committed in Timbuktu (Mali) in the context of a widespread and systematic attack by armed groups Ansar Eddine / Al Qaeda in the Islamic Maghreb against the civilian population of Timbuktu and its region. Second, Ali Muhammad Ali Abd-Al-Rahman – an alleged leader of the Militia/Janjaweed in Darfur (Sudan) – has been charged with gender persecution in connection with the treatment of males. Third, in the case of Mahamat Said Abdel Kani from the situation in the Central African Republic, where gender persecution is similarly charged in connection with the treatment of males.
Sources ( a selection):
- Lisa Davis, “Dusting Off the Law Books: Recognizing Gender Persecution in Conflicts and Atrocities”, Northwestern Journal of Human Rights, Vol. 20, Issue 1 (2021), 1-63.
- Adrienne Ringin, “In Conversation: The Crime of Gender Persecution at the International Criminal Court”, Australian Journal of Human Rights (2023), 1-7.
- Yvonne Dutton and Milena Sterio, “Prosecuting Gender Persecution at the ICC: Definitions, Policies, and Practice”, Fordham International Law Journal, Vol. 46, Issue 5 (2023), 575-621.
Assignment 1
(1) Argue whether the ICC could consider Taleban restrictions on women in Afghanistan as gender persecution. In addition, would the ICC be able to investigate this under its mandate? In answering this question, you need to have a close look at the elements of the crime of gender persecution and see how, if at all, they may be fulfilled by the situation on the ground.
(2) Look up the ICC cases in which charges of persecution on the basis of gender have been made. What are the underlying facts sustaining these charges?