(Editors’ note: This is the first in a series on the ICC’s Policy on the Crime of Gender Persecution.)
On Dec. 7, the International Criminal Court’s (ICC) Office of the Prosecutor (OTP) launched its first Policy on the Crime of Gender Persecution, sending a global message that it prioritizes holding perpetrators of such crimes accountable.
Persecution—defined under the Rome Statute as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”—is not new; it is a long-standing matter of international concern and its condemnation is firmly based in customary international law. As a crime against humanity, persecution crystallized as an international crime in the London and Tokyo Charters and in the judgements of the International Military Tribunals of World War II, with evidence of gender-based crimes appearing in their written records.
Today, in conflicts and other atrocities around the world, from Ukraine to Afghanistan, Nigeria to Colombia, armed actors have perpetrated gender-based crimes that may amount to gender persecution. In Iraq, ISIS shocked the world when it distributed horrendous videos through social media of its fighters throwing men accused of homosexuality off buildings to their deaths. In Mali, the ICC has charged armed actors for threatening, flogging, and maiming women for the slightest dress code violations based on the militia’s religious and gender ideology. In Colombia, activists have documented armed groups targeting Indigenous and Afro-descendant women and girls on the basis of their gender, race, and ethnicity, in a context shaped by legacies of misogyny, colonialism, and slavery.
Despite the widespread prevalence of these crimes and over 20 years of gender persecution’s inclusion in the Rome Statute, justice still eludes many victims. The primary barrier appears to be people’s inability to recognize these crimes—a problem that has historically even challenged the OTP. The OTP has just begun to bring charges of gender persecution in its cases. Other criminal tribunals and national jurisdictions have similarly failed to recognize and charge gender persecution. This has led to the significant gap in the development of international criminal jurisprudence on gender persecution. Because gender persecution is rarely investigated adequately or charged, whether in international or domestic courts, it lacks prominence in historical records.
The ICC Prosecutor Karim Khan, KC, issued the first Policy on the Crime of Gender Persecution in order to improve the recognition and investigation of this crime and ensure the pursuit of justice for victims. At the request of the Prosecutor, I led the drafting process for the Policy as the OTP’s Special Adviser on Gender Persecution. Taking direction from the Prosecutor’s initiative to strengthen engagement with civil society, this Policy was developed through an extensive year-long consultative process engaging governments, experts, civil society, affected communities, and survivors.
International criminal law recognizes that all people have gender expression and sexual orientation and can be targeted with sexual and gender-based violence. However, gender discrimination has not been historically identified as a driving factor of violence under international criminal law. For example, sexual violence is often viewed as a gender-blind crime, which ignores the prevalence of gender discrimination in such crimes. When the misogyny, homophobia, and transphobia that fuel gender-based violence intertwine with other forms discrimination, namely racial and ethnic discrimination, this can drive crimes committed on multiple persecutory bases—crimes that also often go unaccounted for.
To break cycles of violence, we must not only hold perpetrators accountable for crimes, we must also recognize why these crimes took place, which persecution charges help to visiblize. Where crimes are grounded in gender discrimination, we must ensure that this is recognized and the perpetrators are charged accordingly.
This new Policy takes a comprehensive approach to all crimes and severe deprivations of internationally recognized fundamental rights that may amount to the crime against humanity of persecution on the grounds of gender (gender persecution). It recognizes all of its victims, namely women, girls, men, boys, including/and LGBTQI+ persons. It also recognizes that acts or crimes of gender persecution may include forms of sexual violence or any physical violence or physical contact, as well as acts such as cultural destruction or confiscation, imposition of dress codes, and prohibition of education for girls, among others.
Persecution is unique in its capacity to unearth the discriminatory intent that can drive entire conflicts. Its recognition can also shed light on victims who are vulnerable because of multiple and intersecting forms of discrimination. Such recognition can also unveil the continuum of historical and longstanding structural discrimination and fundamental rights deprivations experienced by groups such as women, girls and LGBTQI+ persons. Ultimately, accountability for gender persecution crimes can help contribute to sustainable peace and disrupt the normalization of institutionalized gender discrimination and violence.
Now that the Policy has been launched, the real work of implementation begins. To ensure we move from paper to practice the Prosecutor already has plans underway to create further civil society engagement. This includes organizing a civil society round table discussion, as well as developing investigative materials and providing staff training so that these acts and crimes are recognized and perpetrators held accountable.
Now is the time to dust off the law books on the crime of gender persecution and bring justice to survivors and victims who have never in history received full recognition.