Introduction

In its 2014 Policy Paper, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) reaffirmed its commitment to ‘paying particular attention to sexual and gender-based crimes’. This declaration illustrated the new dynamic observed by the ICC through which the OTP is making an effort to break with the pattern of not prosecuting crimes based on gender-based persecution. As such, several steps have been taken towards the prosecution of such crimes: in May 2020, Al Hassan became the first accused charged with gender-based persecution as a crime against humanity before the ICC. In 2017, the request to open an investigation into the situation in Afghanistan mentioned the prosecution of the murder of female politicians and intimidation of female students by the Taliban as persecution on gender grounds. These charges mark a major turn in prosecution tactical approaches and might soon be followed by other similar charges.

Prosecuting sexual and gender-based violence (SGBV) presents great challenges for international criminal law, and those violations of international law have been belatedly addressed. The Rome Statute provides for several elements of crimes prohibiting SGBV and falling under the subject-matter jurisdiction of the ICC. SGBV, in particular, can be prosecuted through non-explicit SGBV charges, especially persecution under Article 7(1)(h) of the Rome Statute.

Current state of charges: A progressive resort to gender-based persecution charges

The prosecution of sexual violence touches on various grounds of persecution. The OTP frequently resorts to political grounds as it did in the cases Ongwen, Mudacumura, Muthaura et al., Gaddafi & Al-Senussi and Al-Tuhamy. On several occasions, it has also invoked ethnic grounds such as in the cases Ntaganda, Ahmad Harun & Ali Kushayb, and Hussein. In the Blé Goudé and Gbagbo cases, the OTP had recourse to multiple grounds (political, national, ethnic, and religious). The Al Hassan case, though resorting to the previously invoked religious grounds, also invoked for the first time the gender ground. In this sense, the OTP is no stranger to prosecuting SGBV through persecution, but it rarely does so on gender grounds.

Resorting so seldom to gender-based persecution raises the question of why it is not used more often. First, the definition of gender is quite nebulous and ambiguous under international criminal law: the definition provided for under Article 7(3) sets a binary concept of biological sex but also refers to gender ‘in the context of society’. However, the OTP clarified in 2014 that Article 7(3) ‘acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys’. Such a progressive interpretation appears to be consistent with international human rights law – as instructed by Article 21(3) of the Statute – but does not seem to provide a solid enough basis for the OTP to prosecute SGBV for persecution on gender grounds.

As SGBV crimes are often part of a broader campaign of ethnic or political persecution, the OTP may have chosen to focus on the broader ground to simplify the case. Using well-known and better-defined concepts such as ethnicity or politics avoids time-consuming arguments. The OTP indeed affirmed its determination to pay particular attention and prosecute SGBV, but this determination does not appear to be a sufficient reason to tactically raise gender-based persecution and establish legal precedents on that crime.

The pervasive character of SGBV can also explain why the OTP so rarely solicits the gender ground. At different levels, SGBV crimes are ubiquitous and become invisible, unremarkable and almost inevitable, especially in armed conflicts. Thus, it is possible that the prosecution does not automatically link SGBV to the gender ground of persecution, and according to Grey, perpetrators might not recognise their actions as SGBV. This does not impede the OTP from proving such intent, only that it might need to resort to circumstantial evidence.

Of course, the reasons for limiting prosecution on the basis of gender-based persecution are numerous, and they are both technical and institutional. If they are difficult to correct, one must keep in mind the opportunities that this charge offers and the elements that would contribute to facilitating it.

Time for a ‘big-picture’ approach: Prosecuting on intersectional grounds

The intersection of grounds could serve the prosecution of SGBV on the basis of gender-based persecution. Indeed, since SGBV often takes place in a broader context of persecution based on ethnic, national, religious or political grounds, the OTP could use the notion of intersectionality and thus recognise that individuals who are persecuted may be persecuted on more than one ground.

According to scholars, intersectionality offers the benefit of identifying gender discrimination ‘during persecution campaigns in which the violations of rights experienced by men and women tend to be very different’ and also contributes to explain ‘the complexity of the (discriminatory) persecutory intent and reflect it in the charges; which may involve charging cumulative grounds of persecution’. Scholars have suggested that the OTP should analyse each ground separately and then explain ‘how the crime was compounded by all the discriminatory grounds as necessary factors of the attack’. As such, when reporting on the gender ground, the OTP could be true to the definition of gender provided in Article 7(3) and address how the social construction of masculinity and femininity impacted the persecution, how men and women (and boys and girls) were targeted and if they were targeted in different ways.

Intersectionality can also be an opportunity as it can ‘explain the discriminatory nature of SGBV in the charges’ and shed some light on gender-specific harms, which could be obscured while charging: ‘Since intersectionality uncovers gender interplaying with other forms of contextual discrimination, it looks at the harms from a gendered perspective not limited to the physical harm but inclusive of “connected” harms”’. The Gender Advisor to the ICC acknowledged the relevance of prosecuting persecution on intersecting grounds: she argued that it would be a logical follow-up to look at a person ‘in a more integrated way. … It will sound almost like an old-fashioned judgement if we only look at one aspect of it’. However, it is not solely because intersectionality is the ‘next logical step’ in the prosecution of SGBV that it should be applied and studied, but also because it is more effective and above all more reflective of the reality of sexual violence.

Conclusion

In this sense, the recent election of the Prosecutor may have consequences for the future prosecution of SGBV crimes on the basis of gender persecution. One can only hope that Karim Khan will follow the steps taken by Fatou Bensouda in matters of selection and prioritisation of SGBV, especially in regard to persecution as a sexual crime.