(Editors’ note: This is part of our series on the ICC’s Policy on the Crime of Gender Persecution.)
In December 2022, the International Criminal Court’s Office of the Prosecutor (ICC OTP) launched its Policy on Gender Persecution. The Policy reflects the OTP’s existing commitment to focus its resources and attention on investigating and prosecuting sexual and gender-based violence (SGBV) crimes, including the crime of gender persecution. Moreover, the Policy builds upon the OTP’s prior work in this area, including its 2014 Policy Paper on Sexual and Gender-Based Crimes. This article highlights and discusses the OTP’s Gender Persecution Policy, while also situating its place in the trajectory of ICC’s progress related to the investigation and prosecution of SGBV crimes, and in particular the crime of gender persecution. Below, we first give an overview of the Rome Statute’s contributions to the development of international criminal law regarding SGBV crimes. Next, we address the OTP’s 2014 Policy Paper and describe some of the investigations and prosecutions of SGBV crimes which resulted from the OTP’s specific decision to ensure that these crimes were not overlooked. We then turn to the 2022 Gender Persecution Policy, detailing some of its key features and briefly discussing some implementation challenges.
The Rome Statute: Developing International Criminal Law Related to the Investigation and Prosecution of SGBV Crimes
Because the ICC functions based on a system of complementarity where it may only seize a case if the relevant state is “unwilling or unable” to prosecute, the Court is in a unique situation where through positive complementarity it can promote accountability and the development of international criminal law within national jurisdictions. Thus, through its focus on the definition of gender, as well as on the investigation and prosecution of SGBV crimes, the ICC has been fostering the development of international criminal law in this area, both within international as well as within national jurisdictions.
The ICC was the first international criminal tribunal to define “gender” within its founding statute. According to Article 7(3) of the Rome Statute, “gender” “refers to the two sexes, male and female, within the context of society.” The Rome Statute’s definition of gender has been criticized, due to its focus on the binary nature of the definition. Nevertheless, Article 21(3) of the Rome Statute requires that the statute’s provisions be interpreted and applied consistently “with international recognized human rights, and be without any adverse distinction founded on grounds such as gender.” Thus, both the 2014 Policy Paper and the 2022 Gender Persecution Policy adopt a broader view of gender and thereby enable the OTP to also adopt a more progressive, and non-binary, understanding of gender. However, this contemporary view taken by the OTP does not conflict with the Statute’s definition, since gender persecution crimes are understood from the perception of the perpetrator. The Gender Persecution Policy explains this, stating, “Gender refers to sex characteristics and social constructs and criteria used to define maleness and femaleness.”
In addition, the Rome Statute also criminalized a broader range of SGBV crimes than prior international criminal tribunals. Under the Rome Statute, acts of “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” may be prosecuted as underlying acts supporting charges of crimes against humanity (if the contextual elements of crimes against humanity are met) or as war crimes (when committed in the context of armed conflict). The Rome Statute is also the only international instrument to expressly recognize the crime against humanity of gender persecution. For gender persecution to constitute a crime against humanity, the perpetrator must target an “identifiable group or collectivity” based on gender grounds. Such groups include, for example, men, women, girls, boys and/including LGBTQI+ persons. Other international criminal tribunals had limited the reach of the crime of persecution to political, racial, or religious grounds. Thus, including the crime of gender persecution within the Rome Statute constitutes a significant step in the development of international criminal law related to the investigation and prosecution of SGBV crimes.
The 2014 Policy Paper: In Theory and In Practice
In its 2006 Report on Prosecutorial Strategy, the OTP had already signaled that it would select cases “paying particular attention to methods of investigations of crimes committed against children, sexual and gender-based crimes.” The OTP echoed a similar goal in its Prosecutorial Strategy for 2009-12, which repeated the objective of addressing charging practices in relation to gender crimes. Under the leadership of Prosecutor Fatou Bensouda, OTP’s 2012-2015 Strategic Plan announced a strategic goal committed to enhancing “the integration of a gender perspective in all areas of . . . work” and to paying “particular attention to sexual and gender-based crimes.” And in 2014, after extensive consultations with ICC States Parties, civil society, academia, and relevant United Nations agencies, the OTP launched its Policy Paper. With the 2014 Policy Paper, the OTP declared that it would adopt concrete steps to address the challenges it has previously faced in investigating and prosecuting SGBV crimes.
The 2014 Policy Paper broadens the OTP’s view of the definition of gender, explicitly interpreting “context of society” as acknowledging “the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys.” Moreover, the 2014 Policy states the OTP will interpret and apply the definition of gender consistently with Article 21(3) of the Rome Statute and internationally recognized human rights. And the OTP confirmed in the 2014 Policy that it would consider acts of violence and discrimination related to socially constructed gender roles. The 2014 Policy also commits to bringing charges for SGBV crimes whenever the OTP concludes there is sufficient evidence to support them, and it recommends applying a gender analysis to all stages of the OTP’s work, including preliminary examinations, investigations, and prosecutions. Finally, the 2014 Policy recognizes that it may be difficult for the ICC alone to carry out this progressive agenda related to the investigation and prosecution of SGBV crimes. Instead, it specifically references positive complementarity and encourages states to carry out their primary responsibility of investigating and prosecuting these crimes, with support from the OTP.
In practice, the OTP made significant strides in advancing the goals of the 2014 Policy Paper. Under Bensouda’s leadership, the OTP initiated 13 new preliminary examinations, nine of which included SGBV crimes, and four which were brought on the prosecutor’s own motion. In addition, the OTP concluded two preliminary examinations (Nigeria and Ukraine) where it found that the criteria to proceed with investigations was met; in both situations, SGBV crimes were included. Moreover, the OTP opened seven new investigations, six of which encompassed allegations of SGBV crimes. Following the 2014 Policy Paper, the OTP increased its practice of charging defendants with SGBV crimes: in the four years that followed the Policy, SGBV crimes constituted nearly fifty percent of the crimes charged.
The OTP’s conviction record on SGBV charges, however, was more nuanced. In the Katanga and Ngudjolo Chui cases, although both defendants were charged with SGBV crimes, neither was ultimately convicted of such charges. In the Bemba case, the Appeals Chamber overturned a conviction on SGBV charges, and defendant Jean-Pierre Bemba Gombo, a former military leader now serving as Minister of Defense of the Democratic Republic of the Congo (DRC), was ultimately acquitted of all charges. On a more positive note, Bosco Ntaganda, the former military chief of staff of an armed militia group operating in the DRC, was charged with SGBV crimes, convicted of such charges, and the conviction was confirmed on appeal; thus, the Ntaganda case represents the first final conviction for SGBV crimes in the Court’s history. Most recently, Dominic Ongwen, a former commander of the Ugandan Lord’s Resistance Army, was convicted of numerous SGBV charges, making it the first case where the OTP supported a crimes against humanity charge with forced marriage as an inhumane act. In sum, despite mixed results, it can be argued that since the launch of the 2014 Policy Paper, the OTP’s investigation and charging practices regarding SGBV crimes have improved substantially. One might expect that the OTP will also have further success in obtaining convictions on such charges in the near future.
The Crime of Gender Persecution and the 2022 Gender Persecution Policy
The crime of gender persecution has not been prosecuted until recently. For the first time in the ICC’s history, in September 2019 a Pre-Trial Chamber recognized charges of gender persecution in Prosecutor v. Al Hassan. The trial against Al Hassan Ag Abdoul Aziz, a high-ranking administrator of the Islamic Police in Timbuktu, commenced in July 2020, and evidence regarding the commission of the crime of gender persecution has been submitted. Most recently, the OTP brought gender persecution charges in a case against Ali Muhammad Ali Abd-Al-Rahman. The trial against this defendant, an alleged leader of the Militia/Janjaweed in Darfur, Sudan commenced in April 2022 and is ongoing.
Under the leadership of Prosecutor Karim Khan, KC, and to enhance the OTP’s ongoing efforts to provide justice to victims of SGBV crimes, the OTP launched its Policy on Gender Persecution in December 2022. This Policy, launched after two rounds of public commentary (for our commentary see here), recognizes that SGBV crimes, including gender persecution, are “among the gravest crimes in the [Rome] Statute,” and confirms that investigating and prosecuting these crimes is a “key priority.” The Gender Persecution Policy also expresses the OTP’s commitment to pay “particular attention” to the crime of gender persecution “at all stages of its work from preliminary examination, investigation, to trial, sentencing, appeal and reparations.”
In addition, the Policy is commendable for other reasons. First, it includes a list of definitions of key terms as “gender,” “gender persecution,” “intersex,” and “LGBTQI+,” and as to “gender,” the Policy reaffirms that gender is a social construct that can evolve over time. The Policy reinforces this view of gender by defining “gender persecution” as a crime “committed against persons because of sex characteristics and/or because of the social constructs and criteria used to defined gender.”
Second, it includes definitions of victims who do not identify as men or women, thereby signaling that the OTP will employ a broad lens when considering the victim population subject to gender persecution. Through this Policy, the OTP has expressed its willingness to adopt an intersectional approach that acknowledges the inter-relationship between gender and other aspects of an individual’s identity which may render that individual particularly vulnerable to SGBV crimes, including the crime of gender persecution.
Third, the Gender Persecution Policy adopts a broad view of persecution, criminalizing persecution based on the perpetrator’s beliefs about what it means to be male or female. This type of subjective view of persecution is consistent with most expert commentary in this area of the law and reflects OTP’s progressive view about the crime of gender persecution.
Fourth, the Gender Persecution Policy clearly affirms the OTP’s commitment to investigating and prosecuting SGBV crimes, including the crime of gender persecution, as well as to the development of international criminal law more broadly. This commitment is reflected in the Policy in OTP’s clear stance of cultural relativism, stating that “breaches of fundamental rights cannot be ignored, dismissed or justified on the basis of culture.” The Gender Persecution Policy thus aligns with the modern understanding that arguments about cultural relativism cannot defeat accountability for SGBV and gender persecution crimes.
Fifth, the Policy analyzes the six elements of persecution as a crime against humanity under the Rome Statute; by doing so, the Policy provides clarity to different investigative and prosecutorial teams at the ICC as to the type of evidence that will be necessary to prove the different elements of the crime of gender persecution. In fact, the Policy describes in detail how the OTP will approach its investigation and prosecution of gender persecution throughout the different stages of the ICC’s criminal process.
Sixth, to further facilitate the prosecution of the crime of gender persecution, the Policy includes a detailed analysis of the distinction between motive and intent as they relate to the investigation and prosecution of this crime.
Last, the Gender Persecution Policy addresses various implementation challenges with a promise that the Policy will be regularly reviewed, and that the OTP itself will continue to monitor the implementation of the Policy.
Although the Gender Persecution Policy itself contemplates the need for future oversight and anticipates implementation challenges, it is inevitable that stakeholders and court observers will look for outcomes, such as investigations, prosecutions, and convictions of gender persecution crimes. Moreover, the OTP will need to demonstrate its ability to lead in the development of international criminal law regarding the crime of gender persecution. To successfully implement the Gender Persecution Policy, the OTP will likely require staff training protocols, the creation of additional expert materials on gender persecution (such as, for example, additional materials on the distinction between motive and intent), as well as ongoing internal monitoring. An additional implementation challenge is related to victim participation. As we argue in a forthcoming article (“Prosecuting Gender Persecution at the ICC: Definitions, Policies, and Practice,” 46 Fordham International Law Journal 1 (2023)), a well-developed victim participation regime may facilitate regular collaboration with victims of gender persecution which can in turn aid the prosecution of this crime as well as the development of an effective reparations regime.
In sum, a successfully implemented Gender Persecution Policy can lead toward higher numbers of convictions of SGBV crimes, including gender persecution crimes. Additionally, a successful implementation of the Policy may ensure that the OTP’s focus remains on the prosecution of gender persecution. Although the Gender Persecution Policy is a progressive and impressive document, it remains crucial for the OTP to remain committed to ensuring its successful implementation.