In December 2022, the International Criminal Court’s Office of the Prosecutor (ICC OTP) launched its Policy on Gender Persecution. The policy, in concert with existing international law, enhances the OTP’s ability to investigate and prosecute gender-based rights violations – where the Court has jurisdiction – including by leaning on documentation by United Nations human rights investigations. However, the path to accountability for the crime against humanity for gender persecution will remain a challenging one, due to the pervasiveness of gender-based discrimination around the world.
UN Women was proud to support the effort of the prosecutor, Karim Khan KC, and his special adviser on gender persecution, Lisa Davis, to develop this policy; in particular, because of the inclusive consultation process they led to develop the policy, which included an opportunity for civil society organizations, legal experts, and others, including UN Women, to provide input on its contents. UN Women is the U.N. entity dedicated to gender equality and the empowerment of women. Since the creation of the entity in 2010, UN Women has worked to advance accountability for gender-based crimes and human rights violations. UN Women has done this by providing practical guidance on investigation and prosecution, including a toolkit on gender persecution, and through our longstanding partnership with Justice Rapid Response, through which we deploy gender advisors and sexual and gender-based violence investigators to national and international investigations, including to U.N. human rights investigations. The pursuit of accountability for the crime against humanity of gender persecution holds enormous potential to address – and, even more importantly, to prevent – gender-based human rights violations, which is at the heart of UN Women’s mandate.
Gender persecution: Bringing human rights accountability into international criminal law
The crime against humanity of gender persecution is defined in the Rome Statute of the ICC as the “intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group” (emphasis added). The reference to “fundamental rights” in the definition of the crime is an anomaly in the Rome Statute; it is one of two crimes that is defined as a rights violation (the other is “Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial,” Art. 8(2)(vii)).
The Rome Statute, itself, does not provide much guidance on how to interpret “fundamental rights.” However, emerging jurisprudence from the ICC, as well as from the International Criminal Tribunal for the Former Yugoslavia (ICTY), suggests that the term should be broadly interpreted.
In a 2017 decision to authorize an investigation in Burundi, Pre-Trial Chamber III at the ICC discussed the crime of persecution, and concluded that “[fundamental rights] may include a variety of rights.” In a footnote, the Chamber explains that it will “have recourse to, for example,” the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant of Economic, Social and Cultural Rights, the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights, and the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The ICC’s jurisprudence builds on that from the ICTY. In the Krnojelac judgment, the ICTY Trial Chamber found that a violation of a fundamental rights amounting to persecution could take various forms, and that there was no “comprehensive list” of such acts. In the Kupreskic judgment, the ICTY Trial Chamber examined the Nuremberg Tribunal’s jurisprudence on persecution and noted that, “A narrow definition of persecution is not supported in customary international law,” and that attacks on political, social, and economic rights could rise to the level of persecution.
This broad interpretation of what constitutes a “fundamental right” is affirmed in the OTP’s Policy on Gender Persecution:
“[Gender persecution] may deprive a person of the right: to life; to be free from torture or other inhumane or degrading treatment or punishment; to be free from slavery or the slave trade, servitude and retroactive application of penal law; to freedom of assembly, opinion, expression, movement and religion, including the right to be free from religion; rights to equality, dignity, bodily integrity, family, privacy, security, education, employment, property, political or cultural participation, to access to justice or health care.”
The crime of persecution stands alone in the Rome Statute, which otherwise overwhelmingly criminalizes physical violence and destruction, in its pursuit of accountability for rights violations. For women, girls and LGBTIQ+ people, this crime holds enormous potential to advance equality and respect for the full range of human rights.
Using UN human rights investigations to pursue accountability for gender persecution
Going forward, one of the challenges that the OTP will face in implementing the Policy on Gender Persecution is the necessity of gathering evidence of human rights violations. The possibility that criminal investigators will be gathering evidence of violations of, for example, the right to education, health, freedom of association, and freedom of movement, is far from the typical work of a criminal investigator. However, the OTP’s investigators already have a wealth of information at their fingertips, including from the U.N.’s human rights investigations.
In the face of a conflict or crisis, the U.N. Human Rights Council often creates a human rights investigation, sometimes called a commission of inquiry or fact-finding mission, to document human rights violations and violations of international humanitarian law. Each U.N. Human Rights Council-mandated investigation includes a gender expert in its secretariat, housed within the Office of the High Commissioner for Human Rights, often deployed through the UN Women-Justice Rapid Response partnership. In recent years, Human Rights Council-mandated investigations, with the support of their gender experts, have documented gender-based rights violations in many of the country situations under investigation by the ICC OTP, including the Central African Republic, the Democratic Republic of the Congo, Libya, Myanmar, Ukraine, Venezuela and Israel and Palestine. The reports generated by these investigations contain detailed information on human rights violations, often including a comprehensive, intersectional gender analysis, and a dedicated section on sexual and gender-based crimes.
As envisaged in the OTP’s Policy on Gender Persecution, investigators should use reports from the U.N.’s human rights investigations, in addition to human rights reports from other U.N. and non-U.N. sources, as background information at the preliminary investigation phase, to understand the general context and patterns of rights violations that may amount to gender persecution. Furthermore, more U.N. human rights investigations should explicitly make the legal argument for gender persecution, where evidence meets the required threshold. In this respect, the OTP’s Policy on Gender Persecution should be a useful resource for human rights investigators, to unpack the legal framework and elements for the crime of gender persecution.
The challenge and the promise of accountability for gender persecution
Technical challenges of investigation aside, the greatest obstacle to the identification of fundamental rights deprivations for women, girls and LGBTIQ+ people, lies in the fact that gender-based discrimination is so pervasive that it is nearly invisible. Individuals and societies tolerate a certain level of gender-based human rights violations as the norm and baseline, just as many states engage in torture tactics as punishments or ways to solicit information (despite the prohibition of torture as a jus cogens). The undercurrent of gender inequality can make it difficult for investigators, prosecutors and judges to see rights violations targeting or affecting women, girls and LGBTIQ+ people as “severe deprivations of fundamental rights.” In some cases, gender inequality also makes it harder for victims and survivors of gender persecution to identify themselves as victims.
At the same time, by bringing attention to the crime of gender persecution and making the threat of prosecution real, the OTP may encourage the international community to take prevention efforts more seriously. In another possible advance, States are currently discussing a draft treaty on crimes against humanity, which includes gender persecution, and an explicit obligation for States to prevent crimes. To prevent gender persecution, States must address its root cause, gender inequality, and fulfill their obligations under international law to protect, respect and promote the human rights of women, girls and people of diverse sexual orientations, gender identities and expressions and sex characteristics. In the effort to advance gender equality, accountability for gender persecution has the potential to become a powerful tool.