Writing the Jurisprudence on Gender-based Persecution: Al Hassan on Trial at the ICC

Tuesday, July 14, marked the opening of the trial of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, the second Malian jihadist to appear before the International Criminal Court (ICC). After the ICC Prosecutor’s first investigation into the Mali situation pioneered the first conviction of destruction of religious and historical buildings as a war crime, the court is now writing the jurisprudence on gender-based persecution as a crime against humanity.

While persecution on grounds of ethnicity and religion has been subject to extensive prosecutorial attention, gender-based persecution has never been adjudicated before. The ICC is the first international tribunal to have jurisdiction over this crime. The case will have far-reaching consequences for future criminal cases on sexual and gender-based crimes, including in Myanmar regarding the crimes against Rohingya, and in Syria and northern Iraq concerning the crimes against the Yazidis.

Al Hassan’s Alleged Crimes in Mali

One reason why the trial of Al Hassan is significant is because it involves crimes that the Al Mahdi case left unaddressed. Eight years after Mali referred the situation to the ICC, Al Hassan is facing charges of both crimes against humanity and war crimes. The counts include torture, persecution on religious and gender grounds, rape, sexual slavery, forced marriages, allegations of sentencing without due process, and attacking religious buildings.

In the context of a non-international armed conflict with Malian armed forces, two Islamist extremist groups, Ansar Dine and Al Qaeda in the Islamic Maghreb (AQIM), occupied Timbuktu and the surrounding region in the north of Mali between April 2012 – January 2013. According to court documents, Al Hassan was a de facto head of the Islamic police – one of the institutions through which Ansar Dine and AQIM sought to impose their ideology and vision of religion.

During the 10-month occupation, the two jihadist groups enforced a harsh version of Sharia law, controlling people’s private and public life – especially women’s – by imposing rules such as a strict dress code and a ban on music, tobacco, alcohol, and religious celebrations. Those who did not respect the rules were harshly punished with beatings, floggings, arrests, amputations, and detention in inhumane conditions. Al Hassan was in charge of enforcing the new rules by taking part in police patrols, arresting and detaining civilians, participating in the policy of forced marriages, and implementing sanctions imposed by the Islamic court.

Considering that the ICC has handed down only one conviction of sexual and gender-based violence and that many of Al Hassan’s charges are related to such crimes, the expectations regarding his trial are high. Last year, former Congolese militia leader Bosco Ntaganda was convicted for rape and sexual slavery. This would have been the second ICC conviction of sexual violence had the Appeals Chamber not reversed the conviction of Jean-Pierre Bemba for crimes committed by his troops, including rape, in the Central African Republic.

Gender-based Persecution Before the ICC

Apart from the case of Al Hassan and the initial charge of gender-based persecution in the 2010 case of Callixte Mbarushimana, which was ultimately left out at the confirmation of charges stage, this crime was included in only one other investigation. The Prosecutor’s 2017 request for the authorization to start an investigation in Afghanistan – which was authorized by the Appeals Chamber in March this year – alleges that the Taliban and affiliated armed groups targeted civilians based on their gender:

Although in many cases it appears that female politicians, public servants and students were also killed based on their political affiliation or beliefs, the information available provides a reasonable basis to believe that they were also targeted by reason of their gender […] 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, through intimidation, death threats, abductions and killings. As a result of such attacks, countless other women and girls have reportedly stopped going to school or working due to the attendant climate of fear. (para.115-116)

In addition to the investigation in Afghanistan, according to the 2018 Preliminary Examinations Report (para.225), the Office of the Prosecutor is also considering evidence of gender-based persecution committed by Boko Haram and national security forces against both female and male victims in Nigeria:

The Office further found a reasonable basis to believe that the targeting of females including of student girls for attending public schools, the use of girls as suicide bombers and the targeting of males including student boys by means of forced conscription to fight for the group and through the selective execution of men of fighting age constitute acts of persecution on gender grounds […]. Similarly, the crimes allegedly committed by the NSF [Nigerian security forces] against military aged males suspected of being Boko Haram members or supporters may constitute persecution on gender grounds.

What’s in a Name?

In 1998, the Rome Statute was the first international tribunal statute to include persecution on the grounds of gender as a crime against humanity. It was also the first statute to define the term ‘gender.’

According to Article 7(3) of the statute, gender refers to “the two sexes, male and female, within the context of society.” The definition has been criticized for being circular, conflating notions of gender and sex, and risking the reinforcement of binary notions of gender. As one commentator put it, the definition “awkwardly sits somewhere between a sociological and biological conception of gender […] but this constructive ambiguity also leaves room for creative lawyering.” Ultimately, it leaves much of the interpretation to the judges.

The ICC Office of the Prosecutor’s Policy Paper on Sexual and Gender-Based Crimes unpacks the statute’s definition of ‘gender,’ explaining that it “acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys.” As scholars who examined the preparatory work of the Rome Statute highlight, not only does the statute’s drafting history confirm the view that gender, as defined in Article 7(3), is a social construct rather than a biological category, but this interpretation also ensures consistency with the evolution of international human rights law and practice.

Notably, some scholars emphasize that for the crime of gender-based persecution, the term ‘gender’ describes the grounds on which a group is victimized rather than the identifiable common feature that a group must share. Therefore, persecution takes place on the grounds of socially constructed ideas about what it means to be male or female, rather than the targeting of a group’s members because they are biologically male or female. This distinction is important because it emphasizes that persecution acts are motivated by discriminatory views regarding “appropriate” social behavior for men and women.

Persecution on the Grounds of Gender in the Mali Situation

In addition to suffering religious persecution enacted through rules, such as banning talismans, religious practices, smoking, TV, and drinking alcohol, women and girls were also subjected to gender-based persecution. The new rules imposed by Ansar Dine and AQIM specifically targeted women, controlling and oppressing them because of their gender (DCC, p.378-394). Prosecutor Fatou Bensouda underlined Tuesday in her opening remarks, “it was the women and girls of Timbuktu and the region who were targeted and suffered the most.”

The two extremist groups introduced an ample set of rules and sanctions in order to force women and girls to conform to discriminatory gender roles and to control all aspects of their lives. They had to follow a strict dress code, including wearing gloves at the market in order to avoid touching men’s hands, were not allowed to speak in public with any men other than their husbands or brothers, had restrictions on freedom of movement, and were segregated from boys in schools. In addition to these discriminatory rules, they were raped, forcibly married, and subjected to sexual slavery (DCC, para.949, 960).

Sexual and gender-based violence was used strategically as a tactic of the Islamists’ common plan to control and subjugate the people of Timbuktu (DCC. para.212, 882). For example, not only did rape undermine women’s social status, but also their husbands’ and families’, precisely because of deeply rooted ideas about gender and honor. The members of the occupying groups specifically targeted women and girls for sexist reasons and severely deprived them of fundamental rights (DCC, para.1091, 1092).

Severe deprivation of fundamental rights under international is a key element of the crime of persecution. According to Article 7(2)(g) of the Rome Statute and the Elements of Crimes, in order to charge the crime of persecution, the Prosecutor must establish that “the perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights.” Given the cumulative effect of the underlying acts of persecution, women in Timbuktu were severely deprived of fundamental rights, such as: freedom from slavery, freedom of religion and expression, liberty, the right to be judged by an independent and impartial judge, physical integrity, the right to health, freedom from inhumane treatment, freedom from torture, and the right to free assembly (DCC, para.972). These rights are enshrined under international human rights law, including in the Convention on the Elimination of All Forms of Discrimination against Women and the Maputo Protocol on the Rights of Women in Africa – both of which were ratified by Mali.

Al Hassans Trial and the Quest for Accountability for Sexual and Gender-based Violence

The Al Hassan trial constitutes an important moment in the adjudication of sexual and gender-based crimes. The start of the trial this year is also symbolic, given the anniversary role that 2020 has in the ecosystem of international women’s rights.

Twenty-five years ago, 189 states unanimously adopted the Beijing Declaration and Platform for Action. This was the first blueprint document to comprehensively advance women’s rights, including in situations of armed conflict. Later on, the document contributed to international law recognizing that conflict-related sexual violence is not just a by-product of conflict. Notably, one of the objectives of the Platform for Action (para.142) is to “protect women living in situations of armed and other conflicts or under foreign occupation”, by ensuring that governments and international bodies, including international tribunals, are able to:

[A]ddress gender issues properly by providing appropriate training to prosecutors, judges and other officials in handling cases involving rape, forced pregnancy in situations of armed conflict, indecent assault and other forms of violence against women in armed conflicts, including terrorism, and integrate a gender perspective into their work.

2020 is also an anniversary year for the UN Women Peace and Security (WPS) agenda. Twenty years ago, the UN Security Council laid the foundation of the WPS agenda by adopting Resolution 1325, which addressed, for the first time, the disproportionate and unique impact of armed conflict on women. Today, the WPS agenda recognizes that sexual violence is a weapon and tactic of war, that rape and other forms of sexual violence can constitute international crimes, and it calls for enhanced criminal accountability, improved responsiveness to victims, and extended judicial capacity (Resolutions 1820, 1888, 2467).

In this context, Al Hassan’s trial is yet another important step in advancing the goals enshrined in the international legal system of women’s rights, as well as in bringing justice to the victims in Mali, especially since Al Hassan’s charges are much broader than those adjudicated in the Al Mahdi trial.  

Georgiana Epure is an Aryeh Neier Fellow at the Open Society Justice Initiative. The views and opinions expressed in this article are those of the author alone and do not represent the position of any organization. Follow her on Twitter @GeorgianaEpure.

A shorter version of this article originally appeared in the Justice in Conflict blog.

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