(Editors’ note: This is part of our series on the ICC’s Policy on the Crime of Gender Persecution.)
An Overlooked International Crime
The crime category of persecution in international law is an important tool for exposing the underlying discriminatory drivers, including gender, of violence and atrocity. However, persecution generally, and gender persecution specifically, is not always well understood. This is despite inclusion in the Rome Statute of the International Criminal Court (ICC) more than 20 years ago and the strategic value such charges can bring. There are signs of change, including the new policy on Gender Persecution released by the ICC Office of the Prosecutor (ICC OTP Policy on Gender Persecution) and the Gender Strategy of the United Nations International, Impartial and Independent Mechanism (IIIM) – Syria, where I serve as Deputy Head, made public in October 2022 (IIIM Gender Strategy). The international community now has an important opportunity to build on this momentum to overcome historical silences and strengthen our responses to gender as a discriminatory driver of international crimes.
International criminal law frameworks have been crafted to sanction not only the harms inflicted, but also the purposes driving violations. In the aftermath of the Holocaust, it was not enough to condemn what happened as killing, or even extermination. A new crime – genocide – was named to accurately label the insidious aim of destroying a “national, ethnical, racial or religious” group. It was not enough to condemn the pervasive violation of fundamental rights by the Nazis. The crime of persecution was designated to call out the repugnant discriminatory targeting of group members on “political, racial or religious” grounds. These discriminatory drivers stem from mindsets that inflame violent behavior and brand people with certain identities as opponents, “others”, to be targeted.
Historically, some discriminatory drivers of violations have been worryingly absent from our catalogue of concern. A glance at the identity categories protected in the initial formulations of the crimes of genocide and persecution set out above reveals, for example, the absence of gender. In a world saturated with conflict-related sexual violence; forced marriage; honor killings; violence against people of diverse sexual orientations and gender identities; and the pervasive deprivation of the rights of women and girls, gender should be an identity category we consider in seeking to dismantle discriminatory drivers of international crimes.
A few important footholds have emerged in the framework of international criminal law for addressing gender as a discriminatory driver of crimes. One of the most significant is the inclusion of gender persecution in the Rome Statute of the ICC, which arguably also reflects customary international law. The Rome Statute provision has, in turn, prompted a growing number of ICC member states to adopt parallel provisions in their national legislation. (Another foothold, the recognition of gender-based discrimination as one of the prohibited purposes of torture, in the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) is worthy of separate consideration.)
Despite the inclusion of the provision on gender persecution in the Rome Statute over 20 years ago, it has been largely neglected, resulting in a paucity of precedents and an accountability gap. This could reflect a lack of understanding of the crime of persecution more generally. It has been argued that persecution is one of the “forgotten” international crimes. This may come as a surprise to anyone familiar with the jurisprudence of the ICTY, where persecution charges were the key modality for addressing “ethnic cleansing” during the Balkans conflicts, and a prominent feature of many cases prosecuted. The ICTY showed that persecution charges are very effective for linking different rights violations to show patterns of crimes that form an overarching discriminatory campaign. In turn, this ability to contextualize individual acts as part of a connected series of events can facilitate the attribution of criminal campaigns to higher ranking officials who may not have been physically involved. Additionally, persecution charges are a vehicle for demonstrating the discriminatory animus behind crimes, including the reality that different discriminatory purposes often intersect to drive violations, elevating the gravity of the crimes.
Certainly, though, the strategic benefits of a persecution charge may not be widely understood outside the Balkans context. In the IIIM’s early engagement with Syrian victim and survivor communities concerning the most appropriate labels for describing the pervasive mistreatment of detainees, the crime of “torture” resonated far more powerfully than the crime of “persecution”, although this is evolving in light of the IIIM’s two-way dialogue with victims and survivors as part of its victim and survivor-centered approach.
Momentum at Last
There is at last some momentum towards correcting the historical silence on gender as a discriminatory driver of harm. The first generation of gender persecution charges has emerged at the ICC, including in the Al Hassan case (Mali) (charging persecution on the intersecting grounds of religion and gender), and the Abd-al-Rahman case (Sudan) (charging persecution on intersecting political, ethnic and gender grounds). Notably, in the German case against Sarah O (an individual affiliated with ISIL), a conviction was secured for persecution as a crime against humanity on intersecting grounds of religion and gender for mistreatment of Yazidi victims and there have been other promising developments in national systems.
We have also seen the development of the ICC OTP Policy on Gender Persecution and the IIIM Gender Strategy. (The IIIM is a justice facilitator supporting justice opportunities in many different jurisdictions.) In tandem, these documents represent an important groundswell of commitment to addressing discriminatory gender structures as drivers of international crimes. Both the ICC OTP Gender Persecution Policy and the IIIM Gender Strategy embody strong statements about using the gender persecution framework to overcome historical silences. As the ICC OTP Gender Persecution Policy states, “Accountability for gender persecution crimes can help contribute to sustainable peace and disrupt the normalization of institutionalized gender discrimination and violence” (pp. 4-5). The IIIM Gender Strategy reiterates that “the IIIM seeks to reflect accurately the role that gender has played as a driver of any of the crimes under consideration… The IIIM also seeks to proactively utilize crime categories that facilitate consideration of gender as a structural factor underpinning crimes, whenever compatible with the evidence” (p. 19).
Gender Sensitive Institution Building
The challenge now is to ingrain this new priority as a core part of the daily working methodology and cultural fabric of accountability institutions. This requires constant attention, ongoing commitment, and a multi-layered approach. Both the ICC OTP Policy on Gender Persecution and the IIIM Gender Strategy recognize that success depends on centering a commitment to gender equality as part of the institutional environment.
The best prospects of success lie in clearly articulating why this approach matters to the quality of justice delivered. It is a question of ensuring a holistic and accurate characterization of the impact of crimes on entire communities. As the IIIM Gender Strategy explains:
“Conflict-related harms very often target the relationships that bind communities, including the gendered foundations on which communities rest… Failing to use gender as an analytical lens in accountability work creates a risk that the impact of crimes on affected communities as a whole is not accurately understood. Such risks are particularly acute in assessing crimes, such as genocide and persecution, which target groups.” (p.7)
Dismantling Gender as a Discriminatory Driver of International Crimes
There are signs of a growing commitment to addressing gender as a discriminatory driver of violence and atrocity. The ICC OTP Gender Persecution Policy and the IIIM Gender Strategy are new resources that help in the quest for more inclusive justice outcomes that empower victims and survivors through acknowledgement of the underlying drivers of harm. This provides opportunities to advocate for action and resources to address the problem. If we do not specifically identify and condemn the discriminatory drivers of crimes, what hope do we have of dismantling them as part of our quest for an atrocity-free, more peaceful world?