International Criminal Court poised to interpret the crime of ‘gender-based persecution’ for the first time

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.

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Gender-based persecution on the International Criminal Court’s radar

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.

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Women in Afghanistan, one of the two preliminary examinations where the ICC Office of the Prosecutor is reviewing information on gender-based persecution (Photo credit: Shah Marai / AFP).

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.  Continue reading