(Editors’ note: This is part of our series on the ICC’s Policy on the Crime of Gender Persecution.)

For ten months in 2012-13, the Malian city of Timbuktu was under the control of two armed groups, Ansar Dine and Al-Qaeda in the Islamic Magreb (AQIM), which imposed their extremist interpretation of Sharia law on the population. Together, they explicitly targeted the inhabitants of the city on the basis of gender, with a special focus on women and girls. Forced to abandon traditional clothes and jewellery, women and girls were required to cover their heads and bodies. They were prohibited from being alone with, or speaking to, men other than their husbands or close relatives. Girls were banned from going to school with boys. Women were forbidden from going out at night. 

If women or girls violated, or were perceived to have violated, these edicts, they were severely punished. For instance, women were subjected to 20-40 lashes if they were found in the company of men. As the prosecution put it in the closing arguments in the International Criminal Court’s (ICC’s) case of Prosecutor v Al-Hassan, women and girls “were hunted down in the streets, in the schools, in hospitals and, sometimes, even in their own homes” and arrested, imprisoned, beaten, and raped if they did not comply.

The crime against humanity of gender persecution captures this type of targeting, and was charged by former Prosecutor Fatou Bensouda in Al-Hassan alongside religious persecution. This case is indicative of increased attention by the ICC’s Office of the Prosecutor (OTP) to gender persecution. It is the first case in which persecution on gender grounds has been litigated by the ICC, and the ICC is the first international tribunal to have jurisdiction over this crime. 

Gender is one of a number of persecutory grounds in article 7(1)(h) of the Rome Statute of the ICC, appearing alongside “political, racial, national, ethnic, cultural, religious” and “other grounds that are universally recognized as impermissible under international law.” Of these, the term “gender” is the only one defined in the Rome Statute. Article 7(3) indicates that this term refers to “the two sexes, male and female, within the context of society.” The skeletal form of this definition is the result of diplomatic recourse to “constructive ambiguity” to ensure agreement amidst polarized negotiations. (See the earlier post in this series by Yvonne Dutton and Milena Sterio for an explanation.)

The difficult nature of these negotiations and the opaque nature of the resulting definition seemed to serve as a deterrent to the OTP to charging gender persecution for many years after the ICC’s founding in 2002. The 2010  arrest warrant  against Callixte Mbarushimana included this charge but it was ultimately excluded in the document containing the charges. The next time the crime was charged was in the Al Hassan case in 2018. 

The ICC Prosecutor’s 2014 Policy Paper on Sexual and Gender-Based Crimes was an important development as it both focused the OTP on gender-competent and gender-inclusive investigation and prosecution practices and clarified the term “gender” for the Office. That policy indicates that the term “acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys.” Similarly, the Prosecutor’s 2022 Policy on the Crime of Gender Persecution specifies that the term “gender” refers to “sex characteristics and social constructs and criteria used to define maleness and femaleness, including roles, behaviours, activities and attributes. As a social construct, gender varies within societies and from society to society and can change over time.”

The Policy on the Crime of Gender Persecution helps to unpack the question of how gender is used in persecutory targeting. For example, it notes that “persons may be targeted for gender persecution because of sex characteristics and/or because of the social constructs and criteria used to define gender roles, behaviours, activities and attributes. For example, persons may be targeted for gender persecution when they are perceived to have or carry (gender) criteria prohibited by the perpetrator; or are perceived to not have or carry (gender) criteria required by the perpetrator.” In other words, it is important to consider how the persecutor employed or relied upon socially-constructed norms of “maleness” and “femaleness” when selecting individual victims and groups for persecution.

Additionally, the Policy indicates that “the ‘targeted group’ should be viewed broadly” and that not all targeted persons must be directly part of the targeted group. Sympathizers and affiliates of targeted members can also be considered to be part of the targeted group. The Policy provides an apt example: “if a perpetrator targets a school to prevent girls from attending, men who are teachers and staff at that school may form part of the targeted group, where the grounds for targeting are based on gender.”

Similarly, the Policy recognizes that it “is also sufficient that the perpetrator perceives the person as a member or an affiliate of the targeted group.” The perpetrator’s perception does not need to reflect reality. Again, the Policy provides a helpful example: “if a perpetrator targets a person for being perceived as a gay man or lesbian, it is irrelevant that the person does not personally identify as homosexual. That the perpetrator wrongly perceived the person as belonging to the targeted group, does not deprive such conduct of its discriminatory character.” 

Persecution is often an expression of perpetrators trying to force people into gender “boxes” of “female” and “male,” as conceptualized or interpreted by the perpetrator(s). The situation in Timbuktu in 2012-13 is a good example, and the Policy provides another: “[i]ntersex, nonbinary or transgender persons may be targeted for not belonging to ‘male/men’ or ‘female/women’ groups, as defined by the perpetrator.”

Finally, the Policy underlines that “all persons can be subjected to gender persecution because all persons have gender identities[,] just as all persons have racial and ethnic identities.” Sometimes gender persecution seems hidden because other intersecting forms of persecution (such as racial, political, or religion) are more easily recognizable. However, it is important for investigators to consider the role played by gender in these other types of persecution, in order to ensure fulsome charging of all relevant grounds of persecution.

The end result of the 2022 Policy is detailed guidance by the Prosecutor to his Office on the nature and potential breadth of gender persecution, including the ways in which assumptions by perpetrators on both biological sex and socially-constructed norms of “femaleness” and “maleness” are used to target victims for “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity” (the definition of persecution in the Rome Statute). 

The Policy’s guidance is crucial and will increasingly be relied upon and implemented by the prosecution. Since the Al Hassan case, persecution on grounds of gender has been charged in Prosecutor v Said and Prosecutor v Abd-Al-Rahman. Unlike the focus on the experiences of women and girls in Al Hassan, both of these cases involve the targeting of males on the assumption that they are, or will become, fighters and defenders of communities. Therefore, the ICC’s judges are being pressed to understand the socially-constructed nature of gender in new ways. Outside of specific cases, the Prosecutor is also considering gender persecution in the preliminary examination of the situation in Nigeria and the investigation in Afghanistan, among others. Additionally, the Policy is being used outside of the context of the ICC, such as in Colombia’s Special Jurisdiction for Peace

The targeting of victims for persecution can stem from pre-existing forms of gender discrimination, it may be imposed as a foreign construct by outsiders, or it can be a combination of the two – where pre-existing forms of gender discrimination help to deepen the harm caused by the imposition of the perpetrators’ gender norms. The ICC Prosecutor’s Policy on the Crime of Gender Persecution captures all of these possibilities. 

Returning to the situation in Timbuktu in 2012-13, the prosecution in Al Hassan described the realities of gender persecution, capturing the type of targeting described in the Policy: “the various prohibitions and bans enforced, the various types of violence perpetrated, the arrests, the forced marriages, the rapes, and, in general, all the measures restricting fundamental rights and liberties which targeted women, amounted to a veritable campaign of aggression and oppression of women.”

IMAGE: Former ICC Prosecutor Fatou Bensouda with her Prosecution team during the opening statement at the Confirmation of Charges hearing of the case against Al Hassan on July 8, 2019. (via the International Criminal Court)