{"id":7377,"date":"2017-04-15T17:19:09","date_gmt":"2017-04-15T15:19:09","guid":{"rendered":"https:\/\/openasia.org\/en\/?p=7377"},"modified":"2017-04-15T17:21:09","modified_gmt":"2017-04-15T15:21:09","slug":"gender-based-persecution-on-the-international-criminal-courts-radar","status":"publish","type":"post","link":"https:\/\/openasia.org\/en\/2017\/04\/gender-based-persecution-on-the-international-criminal-courts-radar\/","title":{"rendered":"Gender-based persecution on the International Criminal Court\u2019s\u00a0radar"},"content":{"rendered":"
\n

IntLawGrrls<\/a><\/p>\n

ROSEMARY GREY<\/a><\/span><\/span><\/p>\n<\/header>\n

\n

Sexual and gender-based crimes\u00a0were\u00a0high on the ICC\u2019s agenda in 2016\u00a0\u2013 a trend which looks set to continue this year. In March 2016, the Court handed down its\u00a0first conviction for rape<\/a>, and\u00a0in December,\u00a0its first trial to feature charges of\u00a0forced pregnancy and forced marriage<\/a>\u00a0began.<\/p>\n

There was also a focus on sexual and gender-based crimes in situations under\u00a0preliminary examination,\u00a0including the crime against humanity of \u2018gender-based persecution\u2019, which has never before been prosecuted by an international\u00a0criminal tribunal.<\/p>\n

\n

\"burkas\"<\/p>\n

Women in Afghanistan, one of the two preliminary examinations where the \r\nICC Office of the Prosecutor is reviewing information on \r\ngender-based persecution (Photo credit: Shah Marai \/ AFP).<\/em><\/pre>\n<\/div>\n
This focus on gender-based persecution can be seen in the ICC Office of the Prosecutor\u2019s most recent Preliminary Examinations Report<\/a>,\u00a0which\u00a0gives an update on the ten situations currently under \u2018preliminary examination\u2019 (an initial filtering process, in which the ICC Prosecutor reviews information on alleged crimes and decides whether a full-scale investigation is warranted).<\/p>\n
The report\u00a0confirms 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.<\/p>\n
This investigation, if it goes ahead, will be historic. It\u00a0will\u00a0be the first time that any international criminal tribunal, past or present, has looked into war crimes by US nationals<\/a>.\u00a0It\u00a0will also be the first investigation to specifically contemplate\u00a0the crime against humanity of gender-based persecution \u2013 or the first one\u00a0on public record, at least.\u00a0<\/span><\/p>\n
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<\/em>their gender.\u00a0The targeting must include\u00a0the deprivation of rights protected under international law, and must involve the commission of\u00a0another crime listed in the ICC Statute.<\/p>\n
But whatever the targeting looks like, the\u00a0Prosecutor must prove that it was based on<\/em>gender grounds. This discriminatory intent\u00a0is what sets gender-based persecution apart from\u00a0other offences\u00a0that the ICC Office of the Prosecutor describes as\u00a0\u2018sexual and gender-based crimes\u2019<\/a>, such as rape and sexual slavery.<\/p>\n
As a result of this unique legal requirement, the crime of gender-based persecution requires the ICC Prosecutor to articulate the\u00a0links between individual acts of violence and\u00a0broader ideas about gender. Links to other relevant\u00a0factors, such as age and ethnicity, may\u00a0also need to\u00a0considered.<\/p>\n
For example, the Prosecutor may lead\u00a0evidence to show that women were raped in a conflict setting because they were regarded as \u2018war booty\u2019, or that\u00a0men were rounded up and shot because,\u00a0as males of a certain age, they were viewed\u00a0by the enemy as\u00a0potential combatants.<\/p>\n
In turn, if the Prosecutor brings a charge of gender-based persecution, the\u00a0Court will be forced to\u00a0think through\u00a0the links between gender and violence in its judgment.<\/p>\n
Prosecuting this crime\u00a0also has an expressive function. It sends the message that, just like persecution on other grounds which have long been tried\u00a0as international crimes,\u00a0persecution on the grounds of gender\u00a0is\u00a0repugnant\u00a0to the values of the international community as a whole.<\/p>\n
Despite its prevalence, both in situations of armed conflict and otherwise,\u00a0the 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.<\/p>\n
In fact, apart from one charge of gender-based persecution in Mbarushimana <\/em>case<\/a>, which the (then) Prosecutor did not include in the final charging document<\/a>, there have been no charges of gender-based persecution at the ICC to date.<\/p>\n
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.<\/p>\n
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 \u2018gender\u2019 (which the ICC Statute defines as \u2018the two sexes, male and female, within the context of society\u2019).<\/p>\n
This peculiar definition, which sits somewhere between a\u00a0biological 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.<\/p>\n
After much debate, the above definition of \u2018gender\u2019 was included in the ICC Statute because it was vague enough to satisfy both sides<\/a>, and any further questions about this definition were left for\u00a0the Court to resolve another day.\u00a0As the most recent\u00a0Preliminary Examination Report indicates, that day may not be far off.<\/p>\n
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.<\/p>\n
The Office has also considered the\u00a0long-term\u00a0consequences of this persecution when applying the \u2018gravity\u2019 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.<\/p>\n
This discussion of gender-based persecution and its consequences\u00a0stands in contrast to last year\u2019s preliminary examination report<\/a>, which made no reference to gender persecution in Afghanistan.<\/p>\n
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\u00a0issue.<\/p>\n
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,\u00a0and the use of female suicide bombers.\u00a0It 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.<\/p>\n
Again, this is progress on last year\u2019s report, which made no mention of\u00a0gender-based persecution in Nigeria, but noted\u00a0that the Office was making \u2018particular efforts to determine the gender component of crimes\u2019 in this situation.<\/p>\n
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.<\/p>\n
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\u00a0for generations, this crime is at last\u00a0starting to be seen as one of the most serious crimes of concern to the international community as a whole.<\/p>\n
Stay tuned for further updates on this\u00a0topic as\u00a02017 unfolds, and the preliminary examinations in Afghanistan\u00a0and Nigeria move forward.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"
IntLawGrrls JANUARY 6, 2017 \/ ROSEMARY GREY Sexual and gender-based crimes\u00a0were\u00a0high on the ICC\u2019s agenda in 2016\u00a0\u2013 a trend which looks set to continue this year. In March 2016, the Court handed down its\u00a0first conviction […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6,16,85,43,627,12,48,49],"tags":[632,628,145],"class_list":["post-7377","post","type-post","status-publish","format-standard","hentry","category-afghanistan","category-expert-narratives","category-human-rights","category-human-rights-online-library","category-international-criminal-court-icc","category-transitional-justice-and-peace","category-war-and-peace","category-womens-rights","tag-crimes-of-sexual-and-gender-based-violence","tag-international-criminal-court","tag-usa","country-afghanistan","Documents-statements-multimedia"],"acf":[],"_links":{"self":[{"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/posts\/7377","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/comments?post=7377"}],"version-history":[{"count":3,"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/posts\/7377\/revisions"}],"predecessor-version":[{"id":7379,"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/posts\/7377\/revisions\/7379"}],"wp:attachment":[{"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/media?parent=7377"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/categories?post=7377"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/tags?post=7377"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}