20 years after the ICC was established, the Court is poised to rule on the meaning of one of the most controversial words in its statute: ‘gender’.

Until recently, it didn’t look as if the Court would be interpreting the g-word any time soon. But in November 2017, Prosecutor Fatou Bensouda cited evidence of gender-based persecution in her request to open an investigation in Afghanistan, suggesting that the Pre-Trial Chamber would need to interpret this crime in the foreseeable future.

Jurisprudence on this point looks even more imminent now, following the arrest of Al-Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, who the Prosecutor alleges was the chief of the Islamic police in Timbuktu, Mali, in 2012 and 2013.

Al-Hassan first appeared before the ICC on 4 April 2018, just two weeks after the Prosecutor sought a warrant for his arrest on charges of war crimes and crimes against humanity against Timbuktu’s civilian population. The warrant, issued on 27 March, includes charges for persecution on the grounds of religion by itself, as well as religion and gender.

According to the Prosecutor, Al-Hassan was part of Ansar Dine (‘defenders of religion’), an armed group that together with Al-Qaida in the Islamic Maghreb (AQIM), controlled Timbuktu from April 2012 to January 2013 in the context of a non-international armed conflict with the Malian armed forces.

Consistent with media and NGO reporting, the Prosecution alleged that during their 10-month rule, those two groups imposed their vision of religion on the people of Timbuktu by force: they severely restricted people’s rights and freedoms, subjected them to oppressive and discriminatory rules, and punished any perceived breach of those rules with violence.

For women and girls, this meant torture, cruel treatment, forced marriage, rape, sexual slavery, as well as daily targeting by the Islamic police if they didn’t dress in the required way, or socialised with men, or broke other discriminatory rules. In this environment, many women and girls did not dare to leave their homes.

This is not the first time that the ICC has heard allegations of crimes which, on their face, discriminate on gender grounds. But so long as Prosecutor Bensouda doesn’t omit the charge of gender-based persecution at the confirmation stage (as her predecessor did in the only other case where gender-based persecution was initially charged) this will be the Court’s first opportunity to consider this crime.

In fact, with the confirmation hearing scheduled to begin on 24 September 2018, we might start to see some judicial analysis of the term ‘gender’ by the end of the year. I intend to write more on this as the case proceeds and I imagine that other Int Law Grrls will too. But as time is of the essence, there’s three main considerations I want to highlight right now.

1. Gender as a social construct

Gender, as understood in feminist thought and critical theory, is a social construct. Put simply, it is a human invention, not a biological fact. The consequences of this argument are significant. It implies that our rights and roles are not fixed by our biology. That there is no ‘correct’ way to be male or female. And that the privileged status of men and of heterosexuality is not natural or inevitable; it is ideological, and unjust.

Like many fields of law, international criminal law was slow to embrace the concept of gender. In fact, the ICC Statute is the first instrument of international criminal law to use this term, and the first to recognise the crime against humanity of persecution on ‘gender’ grounds. A definition can be found in Article 7(3) of the Statute, which states:

• For the purposes of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society.

As Valerie Oosterveld has explained, this definition was a hard-won compromise. During the negotiations for the ICC Statute, the majority of states supported the inclusion of this term. However, the Vatican and several majority-Catholic and majority-Muslim states sought to have the term struck out, because they feared its inclusion would threaten domestic laws that discriminate against women or criminalise homosexual acts. These arguments may have been offensive, but were not entirely irrational: the concept of gender does challenge the morality of laws and practices that discriminate on the ground of sex and sexual orientation, as explained above.

The debate over whether or not the ICC should have jurisdiction to prosecute persecution on ‘gender’ grounds continued until the day before states were due to vote on the Statute, when a sub-committee suggested the definition excerpted above. As Oosterveld notes, the definition was accepted precisely because it is ambiguous: it refers to the ‘two sexes’ and says nothing about sexual orientation, satisfying the conservative bloc, but it also situates these two sexes in the ‘context of society’, suggesting that the Court cannot simply equate the term ‘gender’ with ‘biological sex’.

For the Al-Hassan case, this means that the Court need not box itself into a corner where it ends up arguing that women in Timbuktu were oppressed, barred from public life and subjected to sexual violence simply because they have two X-chromosomes instead of one.  Rather, the Court can examine what it meant to be female, in social terms, for women living under the rule of Ansar Dine and AQIM.

Likewise, in any future case where the Court is called on to adjudicate persecution on gender grounds, it has a statutory mandate to consider the social significance of biological sex.

2. Gender-based persecution as punishment for transgressing gender norms

Gender norms vary across time and place, and are seldom uniform across lines of race and class. Yet in almost every society, ideas about how people ‘should’ act differ according to sex. Behind many acts of gender-based persecution, there is a belief that the victim deserves to be punished for transgressing these gender norms.

For example, schoolgirls and female government officials are rarely (if ever) targeted by religious fundamentalists simply because they are female; they are targeted because they are working or studying in a setting where others believe that the pursuit of education and the conduct of public life is the exclusive privilege of men. We have an example in the ICC Prosecutor’s recent request to open an investigation in Afghanistan, which alleges that:

• Pursuant to the ideology and rules of the Taliban, women and girls have been deliberately attacked by the Taliban and affiliated armed groups to prevent them from studying, teaching, working or participating in public affairs.

Likewise, people who have sexual relations with a person of the same sex have long been persecuted because such behaviour is deemed deviant: not just in the sense of atypical, but in the sense of wrong.

In recent years, this explanation of violence against LGBTI people has started to gain support on the international stage. The UN High Commissioner for Human Rights for example, has stated that ‘homophobic and transphobic’ attacks ‘constitute a form of gender-based violence, driven by a desire to punish those seen as defying gender norms.’

Such attacks have a long and sorry history, including under Nazi rule, and continue with a vengeance today.  A current example is the pattern of violence against men who are perceived as homosexual by the so-called ‘Islamic State’. As explained in a recent communication to the ICC Prosecutor, this violence emanates from the group’s belief that men should only have sexual relations with women, and that those who break this rule deserve death.

The ‘punishment for transgression’ theory has not received much attention in the jurisprudence on persecution as a crime against humanity to date. However, it could play a key role in prosecuting violence which is directed at people who defy (or are perceived to defy) ideas about how a man or woman ‘should’ be in the society of interest to the Court.

3. Persecution on intersecting grounds

 As scholars such as Copelon, Buss and Mibenge have argued, gender-based violence often occurs on multiple, intersecting grounds. For example, men of a particular ethnic group may be rounded up and shot because they are perceived as potential combatants, while women from that group are taken as sexual slaves because the perpetrators feel entitled to use women in that way. The jurisprudence of the international tribunals, including the ICC, is littered with examples.

Despite this, the ICC and other international tribunals have tended to speak of persecution on isolated grounds: race or religion, for example.  In the Al-Hassan case, the Prosecution has challenged this trend by alleging ‘persécution religieuse, laquelle s’est doublée d’une persécution sexiste’, in other words, persecution on the grounds of religion and gender coupled together.

This formulation puts the Court in a strong position to find that persecution on intersecting grounds is possible, as a matter of law.  Such a finding would be a positive development in the jurisprudence, not just for gender-based persecution, but for persecution on all grounds.

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Am I arguing what the law is, or what I think it should be?

In this instance, I’m doing both. I’m suggesting that while the ICC’s definition of ‘gender’ persecution is imperfect, it allows for a fairly sophisticated understanding of persecution on gender grounds.

I hope that the ICC shares this view, as it moves towards interpreting this crime for the first time. This will, I think, ensure that gender-based persecution is understood in ICC jurisprudence as it is experienced in everyday life.