Sexual and gender-based crimes were high on the ICC’s agenda in 2016 – a trend which looks set to continue this year. In March 2016, the Court handed down its first conviction for rape, and in December, its first trial to feature charges of forced pregnancy and forced marriage began.
There was also a focus on sexual and gender-based crimes in situations under preliminary examination, including the crime against humanity of ‘gender-based persecution’, which has never before been prosecuted by an international criminal tribunal.
This focus on gender-based persecution can be seen in the ICC Office of the Prosecutor’s most recent Preliminary Examinations Report, which gives an update on the ten situations currently under ‘preliminary examination’ (an initial filtering process, in which the ICC Prosecutor reviews information on alleged crimes and decides whether a full-scale investigation is warranted).
The report confirms that the Prosecutor is on the brink of deciding whether to open an investigation into the situation in Afghanistan, which has been under preliminary examination in the since at least 2007.
This investigation, if it goes ahead, will be historic. It will be the first time that any international criminal tribunal, past or present, has looked into war crimes by US nationals. It will also be the first investigation to specifically contemplate the crime against humanity of gender-based persecution – or the first one on public record, at least.
The crime against humanity of gender-based persecution is unique: it is the only crime in the ICC Statute that requires proof that the victims were targeted because of their gender. The targeting must include the deprivation of rights protected under international law, and must involve the commission of another crime listed in the ICC Statute.
But whatever the targeting looks like, the Prosecutor must prove that it was based on gender grounds. This discriminatory intent is what sets gender-based persecution apart from other offences that the ICC Office of the Prosecutor describes as ‘sexual and gender-based crimes’, such as rape and sexual slavery.
As a result of this unique legal requirement, the crime of gender-based persecution requires the ICC Prosecutor to articulate the links between individual acts of violence and broader ideas about gender. Links to other relevant factors, such as age and ethnicity, may also need to considered.
For example, the Prosecutor may lead evidence to show that women were raped in a conflict setting because they were regarded as ‘war booty’, or that men were rounded up and shot because, as males of a certain age, they were viewed by the enemy as potential combatants.
In turn, if the Prosecutor brings a charge of gender-based persecution, the Court will be forced to think through the links between gender and violence in its judgment.
Prosecuting this crime also has an expressive function. It sends the message that, just like persecution on other grounds which have long been tried as international crimes, persecution on the grounds of gender is repugnant to the values of the international community as a whole.
Despite its prevalence, both in situations of armed conflict and otherwise, the crime against humanity of gender-based persecution was not recognised in any instrument of international criminal law prior to the ICC Statute, and has received little attention at the Court so far.
In fact, apart from one charge of gender-based persecution in Mbarushimana case, which the (then) Prosecutor did not include in the final charging document, there have been no charges of gender-based persecution at the ICC to date.
By contrast, persecution on grounds that are more familiar to international criminal tribunals, including ethnic, political, national and religious grounds, have been charged in multiple cases before the Court.
As a result of this charging pattern, the ICC has not yet had the chance to develop the law on gender-based persecution or clarify its understanding of the term ‘gender’ (which the ICC Statute defines as ‘the two sexes, male and female, within the context of society’).
This peculiar definition, which sits somewhere between a biological and a sociological understanding gender, had a very difficult negotiating history. While many States were keen to give the Court jurisdiction over gender-based persecution, other States feared that this crime would cause confusion or prevent them from discriminating against LGBTI people with impunity.
After much debate, the above definition of ‘gender’ was included in the ICC Statute because it was vague enough to satisfy both sides, and any further questions about this definition were left for the Court to resolve another day. As the most recent Preliminary Examination Report indicates, that day may not be far off.
In Afghanistan, the Office of the Prosecutor has found that there is a reasonable basis to believe that the Taliban committed persecution on political and gender grounds, including against women and girls who worked, participated in public life or attended school in defiance of Taliban rule.
The Office has also considered the long-term consequences of this persecution when applying the ‘gravity’ test found in Article 17 of the ICC Statute. It has recognised that thousands of girls in Afghanistan have been denied an education, and that female heads of household, unable to work under Taliban rule, were often forced to withdraw children from school or give daughters away in marriage, and were left vulnerable to family and community violence.
This discussion of gender-based persecution and its consequences stands in contrast to last year’s preliminary examination report, which made no reference to gender persecution in Afghanistan.
The Office of the Prosecutor is also reviewing information on gender-based persecution in Nigeria, although it is yet to reach any firm conclusions on this issue.
The potential gender-based persecution in Nigeria includes crimes allegedly committed by Islamist militant group Boko Haram, including sexual violence crimes against women and girls, the targeting of girls as punishment for attending school, and the use of female suicide bombers. It also included reports that men and boys of military age were targeted by the Nigerian security forces, due to their suspected affiliation with Boko Haram.
Again, this is progress on last year’s report, which made no mention of gender-based persecution in Nigeria, but noted that the Office was making ‘particular efforts to determine the gender component of crimes’ in this situation.
It remains to be seen where this discussion of gender-based persecution in Afghanistan and Nigeria will lead. At this stage, it is not certain that the ICC Prosecutor will open an investigation in either situation, and if so, what crimes will be charged.
Still, given the silence on gender-based persecution in international criminal tribunals going back to Nuremberg, the fact that the ICC Prosecutor is now contemplating charging this crime is a significant step. It suggests that, after being overlooked, excused or sidelined for generations, this crime is at last starting to be seen as one of the most serious crimes of concern to the international community as a whole.
Stay tuned for further updates on this topic as 2017 unfolds, and the preliminary examinations in Afghanistan and Nigeria move forward.