When it comes to prosecuting sexual and gender-based crimes, there have been few days as significant as today in the ICC’s twenty-one-year long history. The day began with a conviction for sexual violence crimes against male and female victims in the Ntaganda case, followed by the first attempt in any international criminal court or tribunal to prosecute gender-based persecution.

Rosemary Grey (University of Sydney) and Indira Rosenthal (University of Tasmania)[1]

Ntaganda case

The day began with a conviction on all 18 counts charged in the Ntaganda case, one of the ICC’s six cases from the Democratic Republic of Congo (DRC).

Like the ICC’s first trial (Lubanga), the Ntaganda trial concerns the Forces Patriotiques pour la libération du Congo (FPLC), an armed group comprised of people from the Hema ethnic group, which was a party to the 2002-2003 DRC conflict. However, these two trials are very different in scope.

The first, concerning FPLC president Thomas Lubanga Dyilo, focussed solely on the recruitment and use of child soldiers. The former Prosecutor was widely criticised for limiting the charges to those crimes. By contrast, Prosecutor Bensouda charged FLPC commander Bosco Ntaganda with a wide range of crimes directed against civilians and against child soldiers in the FPLC’s ranks.

In terms of jurisprudence on sexual violence crimes, the Ntaganda case already represented a victory for the Office of the Prosecutor (OTP). At the pre-trial and trial stage, the Defence sought to have the charges of sexual violence against FPLC child soldiers excluded on the basis that the alleged conduct could not be a war crime because the putative victims and perpetrators belonged to the same military force. In June 2017, the Appeals Chamber rejected that argument, and confirmed that the rape and sexual enslavement of child soldiers by their commanders can indeed constitute war crimes under the Rome Statute.

In today’s judgment, the Trial Chamber held that the OTP proved several of the allegations of rape and sexual slavery against child soldiers beyond reasonable doubt, and that Ntaganda bears individual criminal responsibility for those crimes. It also convicted Ntaganda for acts of rape and sexual slavery committed by FPLC troops against non-Hema civilians (both male and female).

In addition to those sexual violence crimes, Ntaganda was convicted of conscripting and enlisting child soldiers, using them to participate actively in hostilities, attacking the civilian population, murder and attempted murder, persecution on ‘ethnic’ grounds, forcible transfer and displacement, attacking protected objects, pillage, and destruction of property.

He was held responsible for these crimes as a direct perpetrator and indirect co-perpetrator under Article 25(3)(a) of the Rome Statute.

The Ntaganda judgment comes exactly one year and one month after the Bemba appeal decision, in which three out of five appellate judges overturned the ICC’s only other conviction for sexual violence crimes. If Ntaganda’s conviction for sexual violence is upheld (pending any appeals against today’s decision), it will be the ICC’s first case to result in a conviction and reparations for these crimes.

Al Hassan case

Just hours after the Ntaganda judgment came down, the confirmation of charges hearing commenced in the Al Hassan case, the second case from the situation in Mali. This case concerns war crimes and crimes against humanity allegedly committed by suspected Islamist groups Ansar Dine and Al-Qaeda in the Islamic Maghreb (AQIM) between April 2012 and January 2013 in the city of Timbuktu.

According to the Prosecutor, these two groups destroyed Muslim shrines, imposed oppressive and discriminatory rules on Timbuktu’s people, established an ‘Islamic Court’ and ‘Islamic police force’ to enforce these rules, and brutally punished perceived rule-breakers.

The ICC has already convicted one Ansar Dine member, Ahmad Al Faqi Al Mahdi, for his part in destroying the shrines. The suspect in the Al Hassan case, who is allegedly also part of Ansar Dine, faces charges for that same offence along with murder, other inhumane acts including forced marriage and forced pregnancy, torture, cruel treatment, outrages on personal dignity, imposition of sentences by an improperly constituted court, sexual slavery, rape, and persecution on ‘religious’ and ‘gender’ grounds.

That last charge – persecution on ‘gender’ grounds – is historically unprecedented.  Gender-based persecution has never before been put forward for confirmation in the ICC,[2] and no previous international tribunal had jurisdiction to prosecute this crime. The inclusion of this crime in the Al Hassan Document Containing the Charges (DCC) therefore represents significant progress.

It was expected that the DCC would be the first to include a charge of gender-based persecution: this crime was listed on Al Hassan’s arrest warrant, issued in March 2018. However, this expectation was not confirmed until 2 July 2019, when the DCC was made public (in French).

The charge of gender-based persecution focuses on the experience of women and girls in Timbuktu. They allegedly faced strict control over almost every aspect of their public and private lives, and were severely deprived of many fundamental human rights to which they were entitled under international law for reasons related to gender. As the DCC alleges (at para. 1091, in translation):

Members of the organisation (created by Ansar Dine and AQIM) targeted the people of Timbuktu and its region for religious purposes because they considered that [those people] did not adhere to [Ansar Dine and AQIM’s] own ideological and religious vision. They also specifically targeted women and girls in Timbuktu and its region for sexist reasons by imposing their own ideological and religious vision and discriminatory view of women.

Importantly, these charges do not refer to persecution of ‘religious groups’ and ‘gender groups’. Rather, they refer to persecution on ‘religious grounds’ and ‘gender grounds.’ This framing complies with the Rome Statute and Elements of Crimes, which criminalise the persecution on various grounds (including ‘religious’ and ‘gender’) of ‘any identifiable group or collectivity’.

Thus, when ‘religious persecution’ is alleged, it is not necessary to show that the targeted group shared a common religion. It will suffice that the group is identifiable, and was targeted for religious reasons (such as to punish perceived violations of the perpetrator’s religious beliefs).

Likewise, when ‘gender persecution’ is alleged, there is no requirement that the targeted group was a ‘gender group’, in the sense that the gender identity of its members was the defining feature of the group. It can be any identifiable group or collectivity, which is targeted for sexist or gendered reasons (in the French version of the Rome Statute, des motifs sexiste).

As the ICC is the only international court with jurisdiction to prosecute persecution on ‘gender’ grounds, this first step towards prosecuting the crime is truly historic. Many questions may yet arise as the Court’s jurisprudence on gender-based persecution starts to develop. They include:

• Can forms of gender-based violence that are routine or endemic in some societies, such as forced marriage or domestic violence, amount to persecution on gender grounds?
• If the relevant acts meet the Rome Statute’s definition of ‘persecution’ (i.e. if they involve a severe violation of fundamental rights under international law) is it irrelevant if those acts comply with national law, religious doctrine or dominant cultural beliefs and practices?
• Does the Rome Statute define ‘gender’ as a socially constructed ground, as contended by the OTP and many expert commentators, including to name just a few, Rhonda Copelon, Valerie Oosterveld, Gay McDougall, and twenty-four UN experts who recently provided comments on the Rome Statute’s definition of ‘gender’ to the International Law Commission?
• Can the crime of gender-based persecution be used to prosecute the persecution of victims of any sex or gender, i.e. not only women and girls?
• Can it be used to prosecute the persecution of people who are perceived as violating the perpetrator’s beliefs about appropriate conduct of men and women, respectively – including beliefs about the appropriate sexual partners and appropriate gender identity for each sex?

As several contributors to this blog have argued elsewhere, the answer to all of these questions should be a firm ‘yes’ (that’s the short answer: upcoming publications analyse these questions in more detail).

Of course, the Al Hassan case is not expected to resolve all of these questions. However, it provides an opportunity for the Court to begin interpreting and applying the crime of persecution on ‘gender’ grounds.

The outcome of the Ntaganda case might change if appealed, and the outcome of the Al Hassan confirmation hearing won’t be known for some time. However, in the long road to accountability for sexual and gender-based crimes, today was a turning point for the ICC. May this mark the start of a new, more progressive chapter in the history of accountability for sexual gender-based crimes under international law.

__________________________________________

[1] For their views and input, we thank Lisa Davis (CUNY Law School), Dorine Llanta (Women’s Initiatives for Gender Justice), Jonathan O’Donohue (Amnesty International) and Valerie Oosterveld (Western Law).

[2] In 2010, at the (then) Prosecutor’s request, Pre-Trial Chamber I included a charge of persecution on ‘gender’ grounds on the arrest warrant for Callixte Mbarushimana. However, that charge was not included in the Mbarushimana DCC.