Juridicum
The most controversial crime of international concern? An analysis of gender-based persecution under international criminal law
Hanna Isaksson HT 2019
RV101A, Rättsvetenskaplig masterkurs med examensarbete, 30 högskolepoäng
Examinator: Cristina Trenta Handledare: Maria Sjöholm Abstract Through the establishment of the Rome Statute of the International Criminal Court, gender- based persecution was incorporated as a crime and is today regarded as one of the most serious crimes of international concern. However, the inclusion of gender was subject for long and intensive debates, e.g. with regards to the very definition and protection of LGBTIQ persons. Since gender-based persecution has never been tried before an international criminal court or tribunal, no explicit guidance exists in relation to the application and interpretation of the crime. In the light of these question marks, the purpose with this thesis is to analyze the development and current status of gender-based persecution as a crime against humanity under international criminal law such as the challenging aspects of gender-based persecution and if such challenges results in the gap of the protection of certain groups. Contributions from international refugee law will also be analyzed as well as the recent proposed convention on crimes against humanity by the international law commission. This thesis concludes that the most challenging aspects of gender-based persecution is the very definition and how the link between persecution and gender should be established. The undefined definition of gender risks to exclude protection of primarily LGBTIQ persons, even though the material provided for in the thesis rather speaks for inclusion than exclusion. The existence of sexual- and gender-based violence exceptionalism risks to exclude protection of victims of these crimes, primarily women, since there is a tendency to ignore the discriminatory purpose behind sexual violence. There is a risk that the practical application of the crime results in a gap in the protection of victims of sexual violence. Even if the prohibition of analogy applies, this thesis argues that the ICC still can draw inspiration from both international refugee law and the proposed convention on crime against humanity regarding if gender should be defined in a narrow or board manner. International refugee law especially can provide contributions on the establishment of causal link between persecution and gender. The first case with regards to gender-based persecution is currently pending before the International Criminal Court. Regardless of the outcome, the judgment will be a deal breaker and decide how far the protection of all human beings reaches before the International Criminal Court.
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List of abbreviations
CIL – Customary International Law CRC – Convention of the Right of the Child CEDAW – Convention on the Elimination on All Forms of Discrimination Against Women IBA – International Bar Association ICC- The International Criminal Court ICL – International Criminal Law ICTY – The International Criminal Tribunal of Former Yugoslavia ICTR – The International Criminal Tribunal of Rwanda IHL – International Humanitarian Law IHRL – International Human Rights Law ILC – International Law Commission IRL – International Refugee Law LGBTIQ – Lesbian, Gay, Bisexual, Transgender, Intersex, Queer OHCHR – Office of the High Commissioner for Human Rights. OTP – Office of the Prosecutor at the International Criminal Court UNGA – United Nations General Assembly UNHCR – United Nations High Commissioner for Refugees
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Table of content 1. Introduction ...... 5 1.1 Background ...... 5 1.2 Purpose and research questions ...... 6 1.3 Delimitations ...... 6 1.4 Method and material ...... 6 1.5 Outline ...... 7 2. Persecution as an International Crime ...... 8 2.1 Introduction – From Nuremburg to Rome ...... 8 2.2. Persecution before the Nuremburg Tribunal ...... 9 2.3 Persecution before the ICTY ...... 11 2.3.1 Analysis and discussion ...... 14 2.4 Persecution before the ICTR ...... 15 2.4.1 Analysis and discussion ...... 16 3. Persecution before the ICC ...... 17 3.1 Scope of interpretation ...... 17 3.2 Persecution under the Rome Statute ...... 18 3.3 Elements of persecution ...... 19 3.3.1 The chapeau elements ...... 19 3.3.2 Severe deprivation of one or more fundamental rights ...... 19 3.3.3 Targeted by reason of the identity of a group the group or collectivity as such. .... 21 3.3.4 Targeted on one of the grounds listed in the statute ...... 21 3.3.5 The "connection requirement" ...... 22 3.3.6 Analysis and discussions ...... 23 4. Gender-based persecution before the ICC ...... 24 4.1 Introduction – the debate ...... 24 4.2 Defining "gender" under the Rome Statute ...... 25 4.3 Defining "gender" under IRL ...... 27 4.3.1 Analysis and discussion ...... 28 4.4 Gender-based persecution and LGBTIQ ...... 29 4.4.1 Analysis and discussion ...... 31 4.5 Persecution on the basis of gender? ...... 31 4.5.1 Analysis and discussion ...... 34 4.6 Cases before the ICC ...... 35 4.6.1 Analysis and discussion ...... 38 4.7 Feminist critique of CIL ...... 39 5. ILC draft articles on crimes against humanity ...... 41
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5.1 Introduction – a pressing need for a specialized convention? ...... 41 5.2 Gender-based persecution under a specialized convention ...... 42 5.2.1 Analysis and discussion ...... 43 6. Summary and analysis ...... 45 Conclusion ...... 49 Bibliography ...... 50
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1. Introduction 1.1 Background The crime of persecution can be described as being the core of crimes against humanity under International Criminal Law (ICL),1 primarily because of its unique character.2 It was first in the Nuremburg Tribunal that persecution was codified as an international crime. However, persecution could only be adjudicated by reason of political opinion, race or religious belief.3 Consequently, gender-based persecution could not result in any successful convictions. The International Criminal Tribunal of Former Yugoslavia (ICTY) and the International Criminal Tribunal of Rwanda (ICTR), were the first international criminal tribunals to address gender- related crimes, but gender was still not included as a ground for persecution.4
Through the establishment of the International Criminal Court (ICC), gender was included as a ground for persecution under the Rome Statue of the ICC (the Rome Statute)5 and subsequently recognized as one of the most serious crimes of international concern.6 However, the inclusion of gender was subject for long debates. Conservative states expressed their concerns that their national legislation on domestic violence against women and LGBTIQ7 persons would amount to persecution, as the term "gender" would imply more generous rights than those already recognized by states.8 After more than 20 years after the inclusion of gender no judgment has been delivered and big question marks still exists in relation to the crime, such as which groups that are protected, which acts that amounts to persecution and the causal link between gender and persecution. Gender-based persecution has for a long time been a part of international refugee law (IRL) and it is argued that the ICC, in the absent of own case-law and guidelines, should draw inspiration from IRL.9 In addition, the international law commission (ILC) will soon deliver a specialized treaty on crime against humanity, where gender-based persecution once again been subject for discussion. In summary, gender-based is one of the most serios international crimes where big gaps in the interpretation and application is evident.
1 William Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd edn OUP 2016) 194. 2 Prosecutor v. Krnojelac, (Judgment) IT-97-25-T, T Ch II (15 March 2002) paras 435-436. 3 Charter of the International Military Tribunal (entered into force 8 August 1945) 82 UNTS 279 (Nuremburg Charter) art. 6(1)(c). 4 Statue of the International tribunal of former Yugoslavia, (adopted 25 May 1993, by Resolution 827) UN doc. S/RES/827 (The Statue of the ICTY), art 5(h) and Statue of the International Criminal Tribunal of Rwanda (adopted 8 November 1994, by UNSC resolution 955) UN doc. S/RES/955 (The Statue of the ICTR) art 3(h) and Cate Steains 'Gender Issues' in Roy S. Lee (eds) The International Criminal Court – the Making of the Rome Statute, Issues, Negotiations, Results (Kulwer Law International 1999) 358-59. 5 The Rome statue of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNITS (The Rome Statue) art 7(1)(h). 6 Steains (n 4) 357. 7 Abbreviation of Lesbian, Gays, Bisexuals, Transgender, Intersex and Queer. The author is aware of the fact that most scholars refers to sexual orientation or gender identity. However, considering the purpose in this thesis LGBTIQ better applies as a term in this thesis. The term can be described as composing sub-categories of sexual orientation and gender identity, see UNCHR 'Guidelines On International Protection No 9: Claims to Refugee Statutes Based On Sexual Orientation and/or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Statutes of Refugees' (Geneva, 2012) paras 9-10. 8 Steains (n 4) 372 and 'United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court' (15 June – 17 July 1998) A/CONF.183/13 (Vol.11), Agenda Item 11 para 61. 9 Valerie Oosterveld, 'Gender, Persecution and the International Criminal Court: Refugee Law's Relevance to the Crime Against Humanity of Gender Based Persecution' [2006] Duke J of Comparative and Int'l 49. 5
1.2 Purpose and research questions In the light of these question marks, the purpose with this thesis is to analyze the development and current status of gender-based persecution as a crime against humanity under ICL. In order to achieve the purpose, following questions will be answered: 1. What elements defines persecution as an international crime? 2. What challenges exist concerning adjudicating gender-based persecution from a legal perspective and do these challenges generate gaps in the protection of certain groups? 3. Can IRL offer some guidelines with regards to the application of gender-based persecution and with regards to the challenging aspects? 4. Do the recent proposed articles by the ILC provide guidelines to these challenges?
1.3 Delimitations This thesis will only cover the material scope of gender-based persecution under ICL and will not discuss questions of jurisdiction. This thesis will not discuss the other grounds for persecution or other crimes against humanity under the Rome Statute more than is necessary.10 However, sometimes other crimes against humanity may be necessary to discuss, even though the prerequisites of the crime will not be discussed in detail. The proposed convention on crime against humanity will only be analyzed from the perspective of gender-based persecution. The case-law is limited to the Nuremburg Tribunal, the ICTY, the ICTR and the ICC, where the most relevant and influential judgment will be presented and analyzed.
1.4 Method and material This thesis will use a combination of primarily two legal methods in order to achieve the purpose presented. The major method that will be used is the legal dogmatic method. The purpose by using such a method can be described as solving a legal issue by applying already existing law, meaning presenting de lege lata. By using a legal dogmatic method, the author aims to find the answers in recognized legal sources, such as the legal rules, caselaw, preparatory work and judicial literature.11 This method will therefore primarily be used when the development and current statues of gender-based persecution under ICL are presented.
In addition to a legal dogmatic method, a feminist legal theory will be used. This thesis focuses on the method 'Asking the woman question' presented and explained by Katherine Barlett.12 Asking the women question examines how the law fails to take into account experience and values that appears more typical for women than men and how existing rules and legal standard may be a disadvantage to women or other excluded groups. This method assumes that some features of law is not neutral but also "male" in some sense.13 'Asking the women question' therefore asks for the perspective of females and other excluded groups in the application of the law. The method therefore aims to identify the gender implications of the rules.14 The purpose of this method is to expose these features of law and suggest how these problems might be
10 See the Rome Statute (n 5) art 7(1) and 7(1)(h). 11 Jan Kleinman 'Rättsdogmatisk metod' in Fredric Korling and Mauri Zamboni (eds) Juridisk Metodlära (Studentlitteratur 2013) 21–23. 12 Katherin T. Barlett 'Feminist Legal Methods' (1990) 103, 4 Harv L Rev 829, 836. 13 Ibid 837. 14 Ibid 838 – 843. 6 fixed.15 This method will primarily be applied in relation to research question number two and three. Even if this method primarily applies in relation to women as an excluded group, the method can extend and apply in relation to the protection of other excluded groups as well, which will be the case in this thesis.
Since ICL is a branch of public international law (PIL), the sources used when the legal dogmatic method is applied will be the category of sources listed under Article 38(1) of the Statue of the International Court of Justice (ICJ), namely international conventions, international customs, general principles of law and judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.16 These categories can be described as the classical sources of PIL.17 Although the ICJ does not explicitly recognizes a formal hierarchy among these sources, the order of the sources implies a hierarchy, where the international treaties and customary law are of highest relevance and will be the primarily sources in this thesis.18 Judicial literature, articles and legal principles will complement the primary sources. This thesis will mainly refer to known statues under ICL, as well as treaties under international humanitarian law (IHL), international human rights law (IHRL) and IRL. Concerning customary international law (CIL), a lot of references will be made to the ILC. This thesis will primarily discuss the specific principles of ICL, as described and mentioned in the Rome Statute, most importantly the principle of nullum crimen sine lege.19 This thesis will also discuss case-law regarding persecution from the Nuremburg Tribunal, the ICTY, the ICTR and the ICC. Even though the case-law not formally binds the international court and tribunals they are still important with regards to the interpretation and the application of persecution and will therefore be used in a great detail in this thesis. For gender-based persecution, judicial literature and articles will instead of international treaties, CIL and case-law, be of most relevance, since no judgment yet exists with regards to gender-based persecution. Concerning judicial literature, the work and contributions by primarily Valerie Oosterveld will be paid special attention.
1.5 Outline Except for Chapter 1, the introductory chapter, Chapter 2 of the thesis focuses on the historical background of persecution before the Nuremberg tribunal, the ICTY and the ICTR. Chapter 3 focuses on the elements of persecution before the ICC. Chapter 4 focuses on the challenging aspects concerning adjudicating gender-based persecution and contributions from IRL. Chapter 5 focuses on the proposed convention on crime against humanity and which kind of guidelines that can be offered in the light of gender-based persecution. Chapter 6 will present the summary and analysis together with the conclusion.
15 T. Barlett (n 12) 837. 16 Statue of the international Court of Justice (entered into force the 26 June 1945) 33 UNTS 993 (the Statute of the ICJ) art 38 (1). 17 Raphaël Van Steenberghe 'Sources of International Humanitarian Law and International Criminal Law' in Jean d'Aspremont and Samantha Besson (eds) The Oxford Handbook of the Sources of International Law (OUP 2017) 891. 18 Alain Pellet and Daniel Müller 'Competence of the Court, article 38' in Andreas Zimmermann and others (eds) The Statute of the International Court of Justice: A Commentary (3rd edn, OUP 2019) 932 – 933. 19 The Rome Statute (n 5) art 22. 7
2. Persecution as an International Crime 2.1 Introduction – From Nuremburg to Rome Even though ICL can be described as a rather new branch of PIL, attempts of establishing an international criminal court for trying individual criminal responsibility for committing crimes of international concern can at least be traced back to the 1472, when an ad hoc tribunal was set up as a result of the occupation of Breisach.20 But, it was first as a result of the acts committed during the First World War (WW 1) and in the Ottoman Empire, that serious attempts were made in holding individuals responsible for the crimes committed. At the Paris Peace Conference, the winning side of WW 1 , the Allied Powers, established the 'Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties' in order to investigate the responsibility for starting WW 1 and the war crimes committed.21 But even if the guilt fell on Germany22, and that a treaty was adopted which contained provisions relating to individual criminal responsibility,23 the Second World War (WW2) came between. The treaty was consequently never adopted and an international criminal tribunal was not established.24 Regarding the attempts for holding the leaders of the Ottoman Empire responsible for committing crimes against humanity and civilization25 against the Armenian population in 1915, Turkey refused to ratify such a treaty and this attempt also failed.26
Following WW2, the Allied powers reached the conclusion that the horrific events conducted during the war by primarily Nazi Germany could not go unpunished. Consequently, the Allied powers gathered and after several negotiations, the London Agreement was adopted.27 The agreement stated that the International Military Tribunal in Hague (the Nuremburg Tribunal) should be established with purpose of trying individual criminal responsibility for the atrocities committed.28 The agreement was attached with the Nuremburg Charter which stated that the tribunal shall have the power for trying individual criminal responsibility for committing war crimes, crimes against peace and security and crimes against humanity.29 The establishment of the International Military Tribunal of the Far East (the Tokyo Tribunal) followed a similar procedure.30
Even though the jurisdiction of the Nuremburg Tribunal was limited to the crimes committed by Nazi Germany during WW2 and was only an ad hoc tribunal, ICL had come to stay. Lawyers and policymakers argued that some crimes, because of their gravity, scale and motivation are so horrific that they can be regarded as crimes against the mankind and the international legal
20 International Criminal Law Manual (International Bar Association 2010) (IBA) 48. 21 Ibid 48. 22 Report of the Commission to the Preliminary Peace Conference (1919) AJIL, 95. 23 Treaty of Peace with Germany (28 June 1919) (Treaty of Versailles) art 227. 24 IBA (n 20) 49 and Schabas (n 1) 1. 25 Joint Declaration of the 28th of May 1915 by France, Great Britain and Russia. 26 IBA (n 20) 49. 27 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (8 Aug 1945) (London Agreement). 28 Ibid preamble and article 1. 29 The Nuremburg Charter (n 3) art 6. 30 Schabas (n 1) 6. 8 order as a whole.31 Many of these crimes cross borders, which makes prosecution of this crimes to fall within the interests of several states. The importance of having individual criminal responsibility derives from the fact that perpetrators, mostly members of the governments, may never face prosecution in their national systems.32 Hence, these crimes threatens the legal order on such a large scale, that the international community cannot let these perpetrators go unpunished.
The cold war hindered the establishment of a permanent international criminal court for decades.33 A new attempt was initiated in 1989 and the war in Former Yugoslavia and Rwanda called for a response from the international community, which resulted in the establishment of the two ad hoc tribunals ICTY and ICTR.34 The establishment of the ICTY and the ICTR inspired the ILC in establishing a permanent international criminal court, a task which was handed over to the ILC by the United Nations General Assembly (UNGA). The draft statue was concluded in 199435 which became the framework in the making of a statue for a permanent international criminal court.36 The Rome Statue of the International Criminal Court (the Rome Statute) was adopted in 1998 and entered into force the 1st of July 2002.37 It states that the ICC shall have the power of trying individual criminal responsibility for the 'most serious crimes of international concern', namely the crime of genocide, crime against humanity, war crime and crime of aggression.38
2.2. Persecution before the Nuremburg Tribunal The following sections will present important case-law from the Nuremburg Tribunal, the ICTY and the ICTR regarding prosecuting persecution as an international crime. Except for providing an historical background of the crime, the purpose by presenting and analyzing this case-law is that several of these cases defines the core elements of persecution under ICL, elements which will have strong impact on future cases before the ICC. These elements will also have strong impact when the challenging aspects of gender-based persecution is analyzed.
Persecution has been codified as a crime under ICL ever since the Nuremburg Tribunal and the Tokyo Tribunal were established, and can therefore be described as one of the core international crimes.39 Through the Nuremburg Charter and The Charter of the Military Tribunal of the Far East (Tokyo Charter) persecution was listed as a crime against humanity. Even though individuals for the first time in the Nuremburg and Tokyo Tribunal could be prosecuted for committing crimes against humanity, including persecution, the underlying concept was not
31 Emily Chertoff, 'Prosecuting Gender-Based Persecution: The Islamic State at the ICC' (2017) 126 Yale L J 1050, 1065-1066. 32 Ibid 1066. 33 Philippe Kirsch and John T Holmes, 'The Birth of the International Criminal Court: The 1998 Rome Conference' (1998) 36 Can YB Int'l L 3, 4. 34 Ibid 5. 35 ILC 'Draft Statute for an International Criminal Court with commentaries' (1994) Ybk vol. II. 36 Kirsch and Holmes (n 33). 37 The Rome Statute (n 5) preamble 38 Ibid arts 1 and 5. 39 Schabas (n 1). 9 new.40 Already the Hague Conventions expressed that inhabitants and belligerents remain 'under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.'41 Hence, persecution is a crime that violates the very core of a human being. In the Nuremburg Charter, crimes against humanity referred to: murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian populations, before or during the war; or persecutions on political, racial or religious grounds inexecution of or in connection with any crime within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country where perpetrated […].42 (emphasis added)
A similar definition was incorporated in the Tokyo Charter. Although, under the Tokyo Charter persecution needed to be based on political and religious grounds.43 Hence, "race" was excluded and a cumulative requirement was added between the grounds.
Even though either the Nuremburg Charter nor the Tokyo Charter defined persecution, crimes against humanity were divided into two categories of crimes; "inhuman acts", covered offences that were normally illegal under the national criminal laws and the victims were limited to the civilian population. With regards to "persecution", actions which were not prohibited under the national criminal law system could be included. In other words, persecution had to be other types of offences than those listed under inhuman' acts. Another difference was that persecution did not limit the scope of victims to the civilian population, meaning that e.g. members of armed forces could also fall within the scope of persecution.44 The Nuremburg Tribunal referred to series of acts that constituted persecution on the Jewish population, e.g. deprivation of citizenship and family life, no possibility to hold public office, creation of ghettos, burning and demolishing of synagogues, looting of Jews business and a law forcing Jews to wear a yellow star, even though the persecutory acts taking place before the war was nothing in comparison to the acts taking place during the war, the extermination of the Jews.45 The tribunal referred to those acts as 'consistent and systematic inhumanity on the greatest scale'.46 However, jurisdictional limitations existed.
In contrast to war crimes, crimes against humanity had not explicitly before the WW2 been codified as an international crime.47 Prosecuting crimes against humanity therefore risked violating an important principle under ICL, the principle of nullum crimen sine lege, also called the principle of legality. The principle encompasses primarily four elements: the prohibition of
40 Schabas (n 1) 147. 41 The Hague Convention Regarding the Laws and Customs of Land Warfare (adopted 18 October, entered into force 26 January 1910), preamble 1907. Similar quote in the The Hague Convention with Respect to the Laws and Customs of War on Land (adopted 29 July 1899, entered into force the 4 September 1900) preamble. 42 The Nuremburg Charter (n 3) art 6(c). 43 The Charter of the International Military Tribunal of the Far East (1946) (the Tokyo Charter) art 5(c). 44 Antonio Cassase 'Crime against humanity' in Antonio Cassese and others (eds) The Rome Statute of the International Criminal Court (OUP 2003) 354 45Judgment of the Nuremberg International Military Tribunal 1946 (1947) 41 AJIL, 75 – 77. 46 Ibid 75. 47 M. Cherif Bassouni, 'Crimes Against Humanity: The Need for a Specialized Convention' (1994) 31, 3 Columbia Journal of Transnational Law 457, 461. 10 non-retroactivity, the prohibition against analogy, the principle of certainty and the prohibition of unwritten criminal law provisions. The very core is that a person can only be punished for committing a crime, which by the time the crime took place was clearly codified as a criminal offence with a sufficiently certain sanction attached.48 In order to solve this issue, a requirement of a connection to another crime within the charter was added. Thus, crimes committed before the war fell outside the jurisdiction of the Tribunal.49 These connectional crimes were later clarified as being war crime or crimes against peace50 where crimes against humanity also was confirmed as an international crime, including persecution.51 The connection requirement was later dropped in the Control Council Law No. 10.52 Hence, acts of persecution taken place before the war fell outside the jurisdiction of the Tribunal:53 'revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime'.54 The presecretory grounds were also limited to political, racial and religious grounds. Gender was, for example, not included as a ground for persecution. Overall, it is convincingly clear that a gender-perspectives of the crimes prosecuted in the Tribunal did not exist. The evidence of the sexual violence that had occurred did not lead to any successful convictions, and the rapes committed were rather regarded as a by-product of the war than an actual crime.55
2.3 Persecution before the ICTY As a response to the crimes and evidence of "ethnical cleansing"56 taking place in the Former Yugoslavia during the 1990s, a new ad hoc tribunal was set up in order to adjudicate the crimes committed. In the Statue, Article 5(h) stated that the International Tribunal shall have the power to prosecute the crime of persecution on political, racial and religious grounds when committed during an armed conflict against any civilian population.57 The first definition of persecution in the context of ICL was stated in the case of Tadic and contained two criteria: '(1) the accused committed a specified act or omission against the victim; and (2) the specified act or omission was intended by the accused to harass, cause suffering, or otherwise discriminate against the victim based on political, racial or religious grounds'.58 The Tribunal also clarified, despite the formulation in the Statute, that each ground in itself are sufficient to constitute persecution.59
48 Claus Kreß, 'Nulla poena nullum crimen sine lege' (February 2010) in Rüdiger Wolfrum (ed), Max Planck Encyclopedias of International Law (online edn) 49 Antonio Cassese (ed.) The Oxford Companion to International Criminal Justice (OUP 2009) 285-286. 50 ILC 'Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal' (1950) Ybk vol. II principle VI (c). 51 Ibid. 52 Allied Control Council Law No 10: Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, art II. 53 Fausto Pocar, 'Persecution as a Crime under International Criminal Law' (2008) 2 J National Security Law & Policy 355, 358. 54Judgment from the Nuremburg tribunal (n 45) 80. 55 Widney Brown and Laura Grenfell, 'The International Crime of Gender Based Persecution and the Taliban' (2003) 4, 2 Melbourne J Int'l 347, 355. 56 Women2000 ‘Sexual Violence and Armed Conflict: United Nations Response’, United Nations Entity for Gender Equality and the Empowerment of Women (UN Women) (1998) 9. 57 See the Statute of the ICTY (n 4) art 5(h). 58 Prosecutor v. Tadic (Opinion and Judgment) IT-94-1-T, T Ch (7 May 1997) para 698. 59 Prosecutor v. Tadic (n 58) para 713. 11
Before the establishment of ICTY, persecution had never explicitly been defined under ICL. In contrast to the rather slow development of a definition of persecution under ICL, persecution had been defined and clearly develop in the context of IRL.60 However, the ICTY argued that persecution under IRL rather relates to the state of mind of the person claiming persecution than the factual findings of persecution. Therefore, persecution under IRL is 'cast much wider than is legally justified for the purposes of imposing individual criminal responsibility'.61 Therefore, a direct reference to the definition of persecution under IRL and IHRL would violate the principle of legality.62
In the Krnojelac judgment, persecution was described as an act that: '1. discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); 2. and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).' 63 Hence, a clear connection between the actus reus (discrimination in fact) and the intension by the perpetrator, mens rea (discriminatory intent) on one of the grounds listed in the statute must exist. Solely a discriminatory intent was not enough and the discrimination must have led to consequences for the victim. Only requiring a discriminatory intent, would not make the crime persecution different from any other crime listed in the Statute, and the very purpose with the crime would be rendered pointless.64 However, a couple of years later, Prosecutor v. Naletilić and Martinović stated that discrimination in fact appears just through the identification of the group by the perpetrator, since the victims have no influence of the identification of themselves. Hence, persecution in fact is depended on the identification of the group by the perpetrator and may exists solely on the basis of the perception of a group by the perpetrator. 65
The intent-requirement gives persecution its special character.66 It is not enough that the perpetrator knew that the act or omission discriminates, the specific consciously intent to discriminate must be established but there is no requirement that a discriminatory policy must exists. The discriminatory intent must be linked to the act charged as persecution rather than the act in general.67 The ICTY has stated that the intent requirement is higher than for other crimes against humanity. Therefore, persecution belongs to the same genus as genocide, since both crimes concerns perpetrating an act against a particular group who are targeted because of that. Hence, genocide is an extreme form of persecution.68 It has been argued that ICTY drew
60 UNCHR 'Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status – under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugee (1992) (The UNCHR Handbook). (Reissued in Genève, 2019) paras 51-65. 61 Prosecutor v. Kupreikici (Judgment) ICTY-95-16-T (14 January 2000) para 589 62 Ibid and Prosecutor v. Tadic (n 58) para 694. 63 Prosecutor v. Krnojelac (n 2) para 431. 64 Ibid para 432. 65 Prosecutot v. Naletilić and Martinović, (Judgment) IT-98-34-T (31 March 2003) para 636. 66 Caroline Fournet and Clotilde Pegorier, 'Only One Step Away from Genocide: The Crime of Persecution in International Criminal Law' (2010) 10 International Criminal Law Review 713, 717. 67 See Prosecutor v. Krnojelac (n 2) paras 435-436. 68 Prosecutor v. Kupreikici (n 61) para. 636 12 inspiration from its findings in the Nuremburg Tribunal, where the persecution of the Jews was described as being a step in the 'final solution'.69
The ICTY also declined the connection requirement in the Nuremburg Charter, stating that a connection to another inhuman act within the Statue of the ICTY is not required under CIL in order for persecution to constitute crime against humanity.70 Hence, acts of persecution (intentional deprivation of fundamental rights on discriminatory grounds) did not under the Statute of the ICTY need to be conducted through another crime e.g. rape or murder within the Statute as was the case under the Nuremburg Charter.
The ICTY did not provide an exhaustive list of acts of persecution, but stated that the civil and political rights contained in the Bill of Rights (the Universal declaration of Human Rights71, the International Covenant on Civil and Political Rights72 and the International Covenant on Economic Social and Cultural Rights73) sets up a catalogue of rights that is apparent to any human being.74 Persecution was not limited to acts enumerated in the Statute and any act that leads to a violation of the rights listed in these treaties may be acts of persecution.75 In the Tadic case, the Tribunal stated that 'the crime of persecution encompasses a variety of acts, including, inter alia, those of a physical, economic or judicial nature, that violate an individual’s right to the equal enjoyment of his basic rights'.76 Thus, discrimination needs to be present in relation to the enjoyment of fundamental human rights.77 However, only underlying acts that reaches a level of equal gravity as the other crimes against humanity listed in the statute can be regarded as acts of persecution. Therefore, not all deprivations of human and fundamental rights are serious enough to constitute persecution.78
In order for a deprivation or infringement of a fundamental rights to constitute persecution the act must be a gross or a blatant denial, on discriminatory grounds, of a fundamental rights recognized under CIL, in order to not violate the principle of legality.79 The most important aspect of this test it the gravity of the act itself, rather than which type of fundamental right the person is deprived of.80 The Tribunal also stated that if the crime persecution in a specific situation is a combination of series of action, the whole context needs to be considered. Not all single acts must constitute a gross deprivation of a fundamental right.81 The ICTY has for example recognized, murder, sexual assault, beatings, imprisonment, inhuman treatment,
69 Judgment from the Nuremburg Tribunal (n 45) 65 and Fournet and Pegorier (n 66) 718. 70 Prosecutor v. Kupreškić (n 61) paras 580 – 581. 71 UNGA Res 27 A (1948) 'Universal Declaration of Human Rights' (UDHR). 72 International Covenant on Civil and Political rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). 73 International Covenant on economic, Social and Cultural rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR). 74 Prosecutor v. Kupreškić (n 61) paras 621, 363-364. 75 Brown and Grenfell (n 55) 364 and Prosecutor v. Krnojelac (n 2) para 433. 76 Prosecutor v. Tadic (n 58) para 710. 77 Ibid para 707. 78 Prosecutor v. Kupreškic (n 61) para 618 - 619 and Prosecutor v. Krnojelac (n 2) para 434. 79 Ibid para 620-622; para 434. 80 Brown and Grenfell (n 55) 364. 81 See Prosecutor v. Krnojelac (n 2) para 434 13 infliction of mental suffering, serious deprivation of property and cultural rights as acts of persecution.82 In addition, the ICTY has recognized that using the legal system in order to implement a discriminatory policy, e.g. the prohibition imposed in Germany of marriage between Jews and other Germans, constitutes persecution.83 What is also important, although not related to persecution, is that the ICTY has recognized that sexual violence as an act of torture amounts to gender-based discrimination.84
It has been argued that evidence of non-discrimination of sex and gender were a part of CIL even before the ICTY and ICTR were set up and that IHL early recognized that women are more likely than men to fall victim of certain specific crimes, particularly sexual violence.85 The IV Geneva Conventions of 1949 recognizes that women shall be especially protected in times of armed conflicts86 and Additional protocol I states that women shall be especially protected in particular against rape, forced prostitution or any form of indictment assault.87 Additional protocol II also protects women in non-international armed conflicts.88 The Convention on Elimination on All Forms of Discrimination against Women (CEWAD) had also been drafted, recognizing non-discrimination on the basis of sex as a fundamental human right.89 The Convention of the Rights of the Child recognize non-discrimination on the basis of gender as a fundamental human right.90 Also, UNCHR has recognized gender-related forms of persecution even since 1985.91 Even though the ICTY rejected analogy between ICL and IRL, it is argued that this would not hinder the ICTY, the ICTR or the ICC from drawing inspiration from other areas of law where gaps needs to be filed.92 Also, the ILC Draft Code on Crime against Peace and Security of Mankind, published 1996, stated that gender-based persecution might be a violation of crimes against humanity. However, the ILC saw no reason from departing from what been stated in previous legal framework, despite that fact that the ILC recognized that gender-based persecution violated several international human rights treaties.93
2.3.1 Analysis and discussion Even though the ILC confirmed that gender-based persecution is a part of CIL, by referring to e.g. IHRL treaties, it was still not explicitly recognized. In the light of the fact that the Rome Statute just a couple of years later listed gender as a ground for persecution, it apparently existed
82 See Cassasion (n 49) 454. 83 See Prosecutor v. Kupreskic (n 61) 612 and Brown and Grenfell (n 55) 364. 84 Prosecutor v. Delić (Judgment) IT-96-21-T, T Ch (16 November 1998) paras 493-497 85 Brown and Grenfell (n 55) 358. Following reasoning inspired by Brown and Grenfell. 86 Geneva Convention Relative to the protection of civilian persons in time of war (adopted 12 August 1949, entered into force 21 October 1950) (IV Geneva Convention) art 27. 87 Protocol Additional to the Geneva Conventions of 12 1949, and relating to the protection of Victims of International Armed conflicts (adopted 8 June 1977, entered into force 7 December 1978) (AP I) art 76. 88 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force, 7 December 1978) (AP II) art 76. 89 Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW). 90 Convention of the Rights of the Child (adopted 20 December 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC). 91 See Oosterveld (n 8) 50. 92 Brown and Grenfell (n 55) 361. 93 ILC 'Draft Code on Crime against peace and security of mankind with commentaries' (1996) Ybk vol. II art 18, para 16 and footnote 141. 14 enough evidence under CIL several years earlier that "gender" might be a ground for persecution also under ICL. Even though the code was drafted in 1996 and the ICTY in 1993, the human rights treaties referred to by the ILC were drafted before the Statute of the ICTY. Thus, including "gender" as a ground for persecution already in the Statute of the ICTY would not have violated the principle of legality, if it already had been codified under international law. As a conclusion, no legitimate argument existed that would had justified the non-inclusion of gender as a ground for persecution under ICL.
2.4 Persecution before the ICTR Just like the ICTY was set up with the purpose of prosecuting the crimes committed in the Former Yugoslavia, the ICTR was set up in order to prosecute the crimes committed during the genocide in Rwanda 1994. Similar to the Statute of the ICTY, the Statute of the ICTR stated in Article 3(h) that the Tribunal shall have the power to prosecute persons responsible for committing acts of persecution on political, racial and religious grounds when committed as part of a widespread and systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.94 In the Akayseu judgment "widespread" was described as a massive and large-scale action, carried out collectively with a considerable seriousness and directed against a large scale of victims. "Systematic" was described as an organized action following a regular pattern on the basis of a common policy.95 One of the most important cases from the Tribunal is the Nahimama judgment (Media case) where it was stated that hate speech can constitute a crime against humanity if the act reaches the same level of gravity as the other crimes within the Statute. On Appeal, the tribunal emphasized that in the context that the speeches, which had been broadcasted at a private radio station, had encourage genocide of the Tutsi people through a massive campaign of acts of violence, rape, murder and torture, it amounted persecution. Thus, those specific hate speeches reached the level of gravity as required by case-law in order to constitute persecution.96
It has been argued that adding ethnicity and nationality as general grounds for crime against humanity under the Statute of the ICTR illustrates that ICL has the possibility to evolve in relation on the nature of the conflict.97 Even though the crimes committed against the Tutsi men and women in Rwanda were perpetrated on the basis of their ethnicity, the sexual violence was particularly directed against Tutsi women meanwhile the Tutsi men were rather subject for murder.98 Rape and sexual violence had for example been encourage against Tutsi women by the fact that these women through radio broadcasting been described as 'seductive agents of the enemy'.99 In the light of this, Emily Chertoff argues that even if both Tutsi men and Tutsi women were persecuted on basis of their ethnicity they were treated differently because of their gender, a treatment 'rooted in gender roles, not individual behavior'.100 The same situation also
94 The Statute of the ICTR (n 4) art 3(h). 95Prosecutor v. Jean-Paul Akayesu (Judgment) ICTR-96-4-T, T Ch (2 September 1998) para 580. 96 Prosecutor v. Nahimama (Judgment) ICTR-99-52-A, Appeals Chamber (28 November 2007) paras 987-988 (the Media case) 97 Brown and Grenfell (n 55) 357. 98 Brown and Grenfell (n 55) 358. 99 Prosecutor v. Nahimama (Judgment and Sentence) ICTR-99-51-T, T Ch I (3 December 2003) para 1079. 100 Chertoff (n 31) 1079. 15 appeared in Former Yugoslavia where a majority of the victims of sexual violence were Bosnian Muslim Women.101 As a matter of fact, many of the most horrific crimes perpetrated were directed against women, both in Rwanda and the Former Yugoslavia, on a large scale.102 Hence, gender-based persecution as a self-standing ground has been hard to identify.103 According the Brown and Grenfell, '[…] it would not serve justice to restrict the prosecution of one type of crime against humanity (ie persecution) to a few, narrowly restricted grounds'.104 ICTY has also stated that persecution does not have definitive grounds, since persecution also during the WW2 was carried out on the basis of physical or mental disability and sexual preferences.105 Although, it is also important to mention that despite that the gender-aspects of persecution were absent in the reasoning by the ICTR, several of the crimes committed against women were prosecuted as other crimes. For example, the Akayseu judgment declared that the massive rape of Tutsi women amounted to genocide.106
2.4.1 Analysis and discussion The Media case clearly illustrates that it is rather the gravity of the act than the specific act that is the important aspect of persecution. As long as the act in question constitutes a gross denial of fundamental rights, all such infringement has the capacity to constitute persecution. In the light of the arguments that international law can evolve in relation to the nature of the conflict it aims to regulate, gender as a ground for persecution could potentially been recognized. The non-inclusion of gender by the ILC, supports the theory that ICL has rather recognized gender- based persecution through other grounds of persecution than as a self-standing ground. However, the critic for restricting the presecretory grounds should rather be directed against the drafters of the Statute, than the judgments from the Tribunal, having the principle of legality in mind. Neither the ICTY or the ICTR could have prosecuted gender-based persecution, despite the evidence.
101 Women2000 (n 56) 9. 102 Steains (n 4) 357. 103 Brown and Grenfell (n 55) para 358. 104 Ibid 358. 105 Prosecutor v. Tadic (Judgment) ICTY-94-1-A, Appeals Chamber (15 July 1999) para 285. 106 Prosecutor v. Jean-Paul Akayesu (n 95) para 731-734. 16
3. Persecution before the ICC 3.1 Scope of interpretation Before analyzing persecution before the ICC, some important aspects of ICL must be presented in order to understand the challenging aspects of gender-based persecution. The application of the Rome Statute is restricted by the principle of legality. The Statute refers to the classical conception of the principle, namely that a person can only be individually criminally responsible for a conduct which by the time the conduct took place, constituted a crime within the Rome Statute.107 The second paragraph makes clear that the crime shall be strictly constructed and shall not be extended by analogy. In case of ambiguity, the definition shall be used in favor of the person investigated, prosecuted or convicted. The purpose with the prohibition of analogy is to not impose individual criminal responsibility to that extent that it amounts to a new crime. The judges of the ICC cannot not create law, regardless of pressing international need.108 However, the principle does not prohibit all use of analogy since it may be a valid and necessary tool in order to construct a definition of the crimes within the Rome Statute, e.g. in order to fil gaps.109 The principle of legality is also reflected by the fact that the Statute provides a detailed regulation and an exhaustive list of the crimes, which makes ICL a special branch of PIL.110 Article 21 of the Rome Statue lists a hierarchy of the sources of law the ICC should apply when solving cases. First, the Rome Statute, Elements of Crimes111 and its Rules of Procedure and Evidence112, second, applicable treaties, principles of public international law and principles of IHL and third, general principles of law derived from national law systems, as long as they are not inconsistent with norms and principles of PIL.113
In addition, Article 21(3) explicitly states that the application and interpretation of the sources under ICL, e.g. the Rome Statute, cannot be inconsistent with internationally recognized human rights and must be applied without any adverse distinction on the grounds enumerated, such as gender.114 The purpose by adding the article, was to make international human rights an additional source of law for the Court.115 This articles applies in relation to both binding and non-binding international law instruments as well as principles under CIL.116 Thus, a too broad definition of gender may violate the principle of legality and a too narrow definition may violate fundamental human rights. But what also becomes clear is that the prohibition of analogy does not exclude means that may be necessary for the very application of the crime itself, which makes it possible to draw inspiration from other sources of law, e.g. IRL. The question of the
107 The Rome Statute (n 5) art 22. 108 Bruce Broomhall 'Article 22 – Nullum Crimen Sine Lege' in Kai Ambos and Otto Thriffterer (eds) The Rome Statute of the International criminal court- A Commentary (3rd Verlag C.H Beck 2015) 961. 109 Ibid 961. 110 Van Steenberghe (n 17) 901 and 892-893 111 International Criminal Court 'Elements of Crimes' (2011). 112 Rules of procedures and Evidence (2005). 113 The Rome Statute (n 5) article 21(1). 114 The Rome Statute (n 5) art. 21(3). 115 Margaret M.deGuzman 'Article 21 – Applicable law' in Ambos and Thriffterer (eds) (n 108) 945-946. 116 Schabas (n 1) 530 – 531. 17 balance between these principles have special importance with regards to the definition of gender the protection LGBTIQ persons.117
3.2 Persecution under the Rome Statute Under the Rome Statute, persecution is listed as a crime against humanity under article 7(1)(h) of the Rome Statute:
[…] crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: […] Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; 118 (emphasis added)
The wording of article 7(1)(h) makes persecution both a broader and a narrower crime in comparison to previous statues and case law.119 The grounds for persecution have been expanded and now includes, ethnicity, nationality, cultural, gender (as a result of strong lobbying by non-governmental organizations)120 or other grounds that are universally recognized under international law, even though it has been argued that including gender as a ground for persecution is rather a codification of already existing CIL than creation of new law.121 In a more narrower sense, persecution is not a crime self-standing since it must be executed in connected to another crime within the jurisdiction of the court.122
Persecution is defined as 'the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity'.123 At the time the Rome Statute was drafted, Tadic was the only case that explicitly had provided a definition of persecution. According to Darryl Robinson, some states were afraid of making the ICC to an activist court, and because of that, a threshold of 'severe' and a connection to another crime was added.124 Even if the ICC probably will apply and refer to the jurisprudence from the ICTY and the ICTR it is interesting to analyze the approach taken by the ICC. The Elements of Crime125 lists six prerequisites for persecution, all which will be presented and analyzed with a focus on the ICC's findings in Prosecutor v. Bosco Ntaganda, the first conviction on persecution and
117 Inspiration from balancing these principles against each other deprives from Valerie Suri 'Rainbow Jurisdiction of the International Criminal Court?' (Voelkerrechtblog, 12 March 2018)
3.3 Elements of persecution 3.3.1 The chapeau elements All crimes against humanity within the Rome Statute must fulfil the contextual elements of the crime, the so-called chapeau,127 which encompasses two elements of the crime of persecution. These contextual elements are stated in the very first paragraph of article 7 of the Rome Statute, as cited above. The conduct must constitute an "attack". "Attack" is by article 7(2) of the Rome Statute described as 'a course of conduct involving the multiple commission of acts […] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack'.128 It is not a requirement that the act is of a military nature or even a physical attack, but the policy to commit such an attack must have been actively encourage by a State or an organization.129 "Directed against" refers to the intention by the perpetrators130 and civilians must be the primary target and not just be incidental victims.131 "Civilian population" means that the attack can be directed against any civilian population as long as it is not directed against 'only a limited and randomly selected group of individuals'.132 "Widespread" refers to the large-scale nature of the attack, as well as to the number of victims. 'Systematic' refers to the organized nature and pattern of the attack. 133 "Knowledge" requires that the perpetrator knew that conduct was, or intended to be, part of a widespread and systematic attack directed against any civilian population, a requirement which stems from article 30 of the Rome Statute.134
3.3.2 Severe deprivation of one or more fundamental rights The other four elements are the characteristic elements of the crime of persecution, the elements which characterize persecution as a unique crime against humanity under the Rome Statute. The term "fundamental rights" is not defined in the Rome Statute except that such rights cannot be contrary to international law. Article 21(3) of the Rome Statute makes references to
126 Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04-02/06 536-537, Judgment (8 July 2019) and Wairagala Wakabi, 'Ntaganda Convicted at ICC for Rape, Sexual Violence, and Murder' (International Justice Monitor, 8 July 2019)
In Prosecutor v. Laurent Gbagbo, the Pre-Trial argued that the killings, rapes and violence committed against at least 316 people amounted to persecution based on the targeted group perceived political affiliation, ethnical, national and religious grounds.138 However, the Chamber concluded that not enough evidence existed in order to prove that crimes against humanity in general had been committed.139 In the case Prosecutor v. Kenyatta, the Pre-Trial argued that killings, displacement, rapes, sexual violence and forcible displacement constituted severe deprivation of fundamental rights.140 But also in this case, the Chamber decided to withdraw the charges.141 In the case of Prosecutor v. William Samoei Ruto and Joshua Arap Sang the Pre-Trial stated that persecution had been conducted through acts of murder, deportation and forcible transfer of population by reason of political grounds of the targeted group. The Pre-Trial chamber also stated the differences in prosecuting murder as a crime against humanity and prosecuting persecution through the acts of murder as a crime against humanity. 142 The Pre-Trial explained that persecution contains certain distinct elements than the other crime against humanity, namely a discriminatory intent on one of the grounds listed in the Rome Statute. However, also this case was dismissed by the Trial Chamber. In Prosecutor v. Patrice-Eduardo Nagissona and Alfred Yekatoma, at Pre-Trial stage, the perpetrators are accused of committing acts of persecution through severely depriving the victims of their right to e.g. religious freedom against the Muslim population in the Central Republic of Africa.143
The judgment in Prosecutor v. Bosco Ntaganda confirmed a number of statements from the ICTY, e.g. the rights contained in the Bill of rights, other international human rights law instruments as well as IHRL as being fundamental human rights.144 Hence, depending on the gravity of the act and surrounding circumstances, a number of rights, if infringed, may amount to persecution which must be decided on a case by case basis. Therefore, the rights infringed
135 The Rome Statute (n 5) art 21(3) and Schabas (n 1) 195. 136 Schabas (n 1) 195. 137 Cassasion (n 44) 454 and The Office of the Prosecutor 'Policy Paper on Sexual and Gender-Based Crimes' (June 2014) fn 23. 138 Prosecutor v. Laurent Gbagbo, Case No. ICC-02/11-01/11, Decision on the confirmation of charges against Laurent Gbagbo (12 June 2014) paras 204-206. 139 Prosecutor v. Laurent Gbagbo, Case No. ICC-02/11-01/15, Reasons for oral decision of 15 January 2019 (16 July 2019). 140 Prosecutor v. Kenyatta, Case No. ICC-01/09-02/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (23 January 2012) count 9-10. 141 Prosecutor v. Kenyatta, Case No. ICC-01/09-02/11, Decision on the withdrawal of charges against Mr Muthaura (18 March 2013). 142 Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (23 January 2012) para 271- 281. 143 Prosecutor v. Patrice-Eduardo Nagissona and Alfred Yekatoma, Case No. ICC-01/14-01/18, Document Containing the Charges (18 September 2019) para 255-256. 144 Prosecutor v. Bosco Ntaganda (n 126) para 991. 20 must be analyzed in their context, with their cumulative effect, and must be a gross and blatant denial of those rights and fulfil the chapeau elements.145 The important aspect is the targeted group must have been hindered from the enjoyment of his/her fundamental rights. The ICC stated that in principle, any commission of an act listed as a crime against humanity under the Statute qualifies as an act that amounts to persecution.146 In this case, the ICC referred to the commission of acts of murder, pillaged, rape of women, right to life, bodily integrity, forcible displacing part of the civilian population to conditions with insufficient food, water and shelter with no access to medical care and destruction and looting of property and sexual slavery, as acts which severely deprived the targeted group of their fundamental human rights.147
3.3.3 Targeted by reason of the identity of a group the group or collectivity as such. This element excludes acts only committed against randomly selected individuals even though individuals forms a part of a group or collective.148 Since Article 7(h)(1) refers to "any" identifiable group or collective, this indicates that it can be a very small number of people that are members of the group. But the formulation of the element also indicate the group as such can be targeted.149 For example, specific laws only directed in relation to that group.150 Since the grounds for persecution under the Rome Statue is not limited, the only criteria is that the group or collectively are "identifiable", 'based either on objective criteria or on the subjective notions by the accussed'.151 The group or collective may be identified both in a positive or a negative manner either by the fact that the perpetrator targets the group for belonging to a certain group, or for not belonging to a certain group.152 However, it is not a criteria that all victims are related to the group in order for the targeting to constitute persecution.153 It is the perpetrators identification of the group that is the crucial and important element.154
3.3.4 Targeted on one of the grounds listed in the statute This is the most important criteria which distinguish persecution from other crimes against humanity in the statute, the fact that the perpetrator must have had a discriminatory intent. The violation in itself is not enough to constitute persecution, as stated in the case-law from the ICTY. Hence, the targeting must be based on a discriminatory intent on one of the grounds listed in the Rome Statue.155 So, even if all crimes against humanity requires that the perpetrator had knowledge of the attack, through Article 30 of the Rome Statute, persecution requires that the intent was a significant part of the attack and based on one of the listed grounds and must be present in every perpetrator.156 Consequently, Kai Ambos argues that the intention
145 Ibid para 992–993. 146 Prosecutor v. Bosco Ntaganda (n 126)993–994. 147 Ibid paras 995 – 1008. 148 Christopher K. Hall and others 'Crime Against Humanity' Ambos and Thriffterer (eds) (n 108) 220-221. 149 Ibid. 150 Werle and Jeßberger (n 124) 988. 151 Christopher K. Hall and others (n 108) 220-221. 152 Prosecutor v. Bosco Ntaganda (n 122) 1009. 153 Ibid para 1011. 154 Weler and Jeßberger (n 150) referring to Prosecutot v. Naletilić and Martinović (n 64). 155 Ibid 997. 156 Ambos (n 122) 107 referring to Prosecutor v. Krnojelac (n 2) paras 435 21 requirement, the mens rea of the crime, is the real restriction of the crime rather than the connection requirement.157
Prosecutor v. Bosco Ntaganda concerned the targeting of a group on grounds of ethnicity. In this case, it was beyond doubt that the Lendu group constituted an ethnic group and that the crimes were specifically committed against that group. Most of the individuals which fled the attacks were members of the Lendu group and Lendu people which previously had fled belonged to the villages where the Lendu group lived.158 As an example, seven people were targeted. Those belonging to the Lendu group were killed, meanwhile a woman having a child with the ethnicity of the perpetrator was released.159. Even in villages where the Lendu were not the majority population the victims were mostly Lendu people. Also, even though the ICC could not establish the identity of all the victims of sexual violence and rape, it was a part in the destruction of the Lendu people. Comments by the perpetrators had also been made that the Lendu people were not humans, but wild animals, which the perpetrators could treat however they wanted. In the light of that, the ICC concluded that the Lendu people had been targeted based on their ethnic origin, and were severely deprived of their fundamental human rights because of their ethnicity.160 3.3.5 The "connection requirement" In order for an act to constitute persecution, persecution must have been committed in relation to another crime within the jurisdiction of the court, a requirement rooted in the Nuremburg Charter but rejected in Tadic by the ICTY as a violation of CIL. The ICTY even stated that the connection requirement in the Rome Statute is not in accordance with CIL.161 Even though the Statute only require a connection to one other act under the jurisdiction of the court, such formulation clearly limits acts that fulfil the other elements of persecution but is not conducted through another crime under the Rome Statute.162 But, it is also important to remember that the list of crimes against humanity within under the Rome Statute is open-ended, through the crime of "other inhuman acts".163 The combination that interpretations of the ICC cannot be inconsistent with fundamental human rights law also provides flexibility for the ICC.164 Also, this connected crime does not need to fulfil the chapeu element for crimes against humanity, which illustrates the fact that the only purpose with the connection requirement is to limit the jurisdiction of the ICC to cover the crimes of most serious concern.165 In the case Prosecutor v. Bosco Ntaganda this connection requirement was not discussed in detail and the court simply stated that most of the underlying acts of persecution are connected to another crime within the jurisdiction of the court, without further analysis.166
157 Ibid. 158 Prosecutor v. Bosco Ntaganda (n 126) paras 1012-1016. 159 Ibid para 1017. 160 Ibid paras 1018-1022. 161 Ambos (n 122) 105 and Prosecutor v. Kupreškić (n 2) para 580. 162 Ambos (n 122) 105. 163 The Rome Statute (n 5) art. 7(1)(k). 164 Pocar (n 53) 363. 165 Robinson (n 124) 55 and Ambos (n 122) 166 Prosecutor v. Bosco Ntaganda (n 126) 1054. 22
3.3.6 Analysis and discussions It becomes clear that primarily the ICTY has provided a detailed legal base for persecution, which influence the jurisprudence from the ICC as well. Even though the ICC is not formally bound by the case-law of the ICTY or the ICTR, the most important elements of the crime have been developed under the ICTY and the ICTR. It is also evident that IHRL has served as important guidelines for international criminal courts and tribunals. Putting a connection between fundamental human rights and criminal law also makes criminal law possible to evolve. This can be seen for example as the prosecutor has charged persecution in relation to religious freedom.
However, Prosecutor v. Bosco Ntaganda does not break any new grounds regarding persecution specially not in relation to the Rome Statute. Mostly, the court refers to findings already made by the ICTY. But the judgment is important as it sends a message that persecution is not an "ignored" crime before the ICC. Also, this is the first judgment which has adjudicated ethnicity as a ground for persecution. However, this would have been an opportunity for the court to explain the connection requirement in more detail, what it requires but also discuss the specific discriminatory intent by the perpetrators in more detail, especially when it comes to the identification of the targeted group by the perpetrator. The identification of the group by the perpetrator is one of the most important aspects concerning how broad gender-based persecution should be interpreted, which this thesis will present int he next chapter. Even if it is likely that the ICC also in future cases will refer to findings of the ICTY and the ICTR, it is still different courts with different statutes attached to it. For example, the definition of persecution is not entirely the same since the Rome Statute is guided by the definition contained in Tadic. The Rome Statute makes persecution both a narrower and broader crime. Consequently, it is not certain that the judgment in the ICTY will be directly transferred into the jurisprudence of the ICC and the ICC needs to build its own case-law, even though specifically the ICTY has provided important guidelines.
However even if it is possible to argue that the connection requirement restricts persecution before the ICC in comparison to the ICTY and the ICTR, the connection requirement must rather be described as symbolic than a clear restriction. It is rather the high intension requirement which is the real restriction of the crime, a criterion which serves the purpose of making persecution a special kind of crime. What is although interesting about the judgment in Bosco Ngtanda, considering the purpose of this thesis, is the fact that the sexual violence which was regarded as being an act of persecution was not analyzed through a gender perspective. Thus, the court did not take into consideration whether the sexual violence taking place could have been conducted by reason of the victims' gender from the perspective of persecution.
23
4. Gender-based persecution before the ICC 4.1 Introduction – the debate Under the Rome Statute it is stated that '[…] "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.'167 Gender-based persecution, and its definition, was subject for discussion when the Rome Statute was drafted. In the light of the recent developments under IRL168 and the recent adopted Beijing Declaration dedicated to gender equality,169 gender was put in brackets as an enumerated ground for persecution, which clearly illustrated that a consensus on gender-based persecution not existed.170 States and non-governmental organizations raised their concerns, that treatment of traditional gender-based practices and criminalization of homosexuality could result in persecution as a crime against humanity. For an example, it was argued that the term "gender" could indicate more generous rights than those already protected under several national legal system, e.g. protection of homosexuals or domestically protection of women.171
At the end, it was decided that a definition of gender was required in the light of the principle of legality. Those states which from the very beginning opposed the inclusion of gender favored a definition which limited gender to the two biological sexes, male and female and those which favored an inclusion, argued that the definition should refer to social constructed gender roles.172 Arguments in favor were that gender would reflect the current status of international law and several United Nations (UN) system had preferred the use of the word "gender" rather than "sex" since gender also captures the social construction and not just the biological determination.173 As a compromise, it was decided to include both sides in the definition, where gender referred to both two sexes male and female in the context of the society. By adding that gender does not indicate any meaning different from that above, the states which opposed inclusion, were granted that gender only referred to the two sexes male and female, meanwhile those states favoring the use of gender, were satisfied that it referred to 'in the context of the society'.174 Including gender as a ground for persecution confirmed that women is a particular vulnerable group in certain need of protection.175 However, it is important to not interpret "gender" as equivalent to "women", as it risks to exclude other groups in need of protection.
167 The Rome Statute (n 5) art 7(3). 168 UNHCR EXCOM Conclusion No. 39 (XXXVI) 'Refugee Women and International Protection' (1985). 169 'Report of the Fourth World Conference on Women, Beijing' Beijing Declaration and Platform for Action (4– 15 September 1995) Un doc. A/CONF.177/20/REV.1. 170 Valerie Oosterveled 'The Definition of “Gender” in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice?' 18 Harvard Human Rights Law Journal 55, 59, fn 23 and 'Report of the Preparatory Committee on the Establishment of an International Criminal Court' United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (15 June-17 July 1998) (14 April 1998) UN doc. A/CONF.183/2/Add.1 art Y(1)(h). 171 Oosterveld, (n 170) 62-63 fn 44 and 51. 172 Ibid 63-64 173 Steains (n 4) 373. 174 Oosterveld (n 70) 64-65. 175 Jocelyn Campanaro, 'Women, War, and International Law: The Historical Treatment of Gender-Based War Crimes' (2001) 89 Georgetown L Rev 2557, 2590. 24
4.2 Defining "gender" under the Rome Statute The definition of "gender" in the Rome Statute has been described as peculiar.176 It is argued that the definition confuses the two terms "sex" and "gender", and risks to refer to gender as a biological construction rather than a social construction, which directly limits the applicability of the term.177 The definition has been described as a 'stunningly narrow conception of gender'178 and that the definition is explicitly limited to the two biological sexes, male and female.179 According to Valerie Oosterveld, if gender is read as equivalent to sex, the ICC will probably only consider the factual biological sex of the victims and not take social construction of what it means as being a male or a female and gender roles in a given society into consideration.180 This risk to directly excluding people which in their behavior challenge their traditional gender roles, e.g. LGBTIQ persons but also gender perspectives.181
According to Joycelyn Campanaro and Brook Sari Moshan, the fact that gender, and not the other grounds for persecution is defined, indicates that gender-based persecution is different, encourages attitudes that crimes committed on the basis of gender does not serve equal attention, risks being considered as less grave and the definition makes the term hard to apply.182 Because of the narrow definition, the judges in the ICC may be less positive in prosecuting gender-based persecution.183 It is also argued that 'in the context of society' in itself limit which factors the ICC can take into consideration. However, it gives the court flexibility on deciding on a case-by-case basis.184 According to Oosterveld, this is a direct reference to article 21 of the Rome Statute. When the judges evaluate the definition of gender it cannot limit itself to the society where the gender-based persecution took place, regardless of if the society defines gender in a broad or a narrow manner. It must evaluate the definition within the context of an international society.185
In the light of these concerns and arguments, the Policy Paper on Sexual and Gender-based Crimes published by the Office of Prosecutor at the ICC (OTP) is an important step regarding the definition of gender under the Rome Statute.186 The purpose of this Policy Paper is to make sure that the OTP systematically takes sexual and gender-based crimes into consideration during investigations of crimes committed.187 In the Policy Paper, it is stated that the definition
176 Rhonda Copelon, 'Gender Crimes as War Crimes: Integrating Crimes against Women into International Criminal Law' (2000) 46 McGill L J 217, 236. 177 Oosterveld (n 170) 71 and Hilary Charlesworth 'Feminist Methods in International Law' (1999) 93 American Journal of International Law 379, 394. 178 See Oosterveld (n 170) 71 citing Brenda Cossman, 'Gender Performance' Sexual Subjects and International Law' (2002) 15 Canadian Journal of Law and Jurisprudence 281, 283-284. 179 Cossman (n 178) 284. 180 Oosterveld (n 170) 72. 181 Ibid 182 Ibid 80, referring to Campanaro (n 175) 2591 and Brook Sari Moshan, 'Women, War, and Words: The Gender Component in the Permanent International Criminal Court's Definition of Crimes against Humanity' (1998) 22 Fordham Int'l L J 154, 179, 182-183. 183 Oosterveld (n 170) 80. 184 Ibid 74-75. 185 Ibid 75-76. 186 Valerie Oosterveld 'The ICC Policy Paper on Sexual and Gender-Based Crimes: A Crucial Step for International Criminal Law' 24, 3 William and Mary J of Race, Gender and Social Justice 443, 443. 187 Oosterveld, (n 187) 444. 25 of gender in the Rome Statute 'acknowledges the social construction of gender, and the accompanying roles, behaviors, activities, and attributes assigned to women and men, and to girls and boys' and specifically points out that the definition of gender under the Rome Statute will be interpreted in accordance with internationally recognized human rights as stated in article 21(3) of the Statue.188 "Sex" is by the Policy Paper defined as referring to 'the biological and physiological characteristics that define men and women'.189 Regarding article 21(3), the Policy Paper clearly states that the OTP will take into account evolution of internationally recognized human rights, with a particular reference to CEDAW.190 Hence, the definition of gender in the Rome Statue cannot justify discrimination.191 The paper will consider discrimination on sex as well as socially constructed gender roles and understand the intersection with e.g. religion, political opinion, gender, sexual orientation and other statues.192
Regarding gender-based persecution, the prosecutor states that valuable precedent in IRL will be taken into account when interpreting gender-based persecution.193 It also states that it considers gender-based crimes as crimes committed against persons, 'whether male or female, because of their sex and/or socially constructed gender roles'.194 The Policy Paper also points out that gender-based crimes does not necessarily need to be executed as a sexual crime, and can also encompass non-sexual attacks against men and women.195 Consequently, all crimes under the jurisdiction of the ICC may be based on gender, even those of non-sexual nature.196 The Policy Paper highlights that 'persecution on the basis of gender […] will be utilised to the fullest extent possible'.197 It also states that the staff at the OTP needs to adopt both gender perspective and gender analysis, which will help the office of the prosecutor to better understand the crime and whether the crimes are connected to gender norms and inequalities.198 One important purpose with this Policy Paper was to make sure that gender is not defined as equivalent to "woman", "sex" or "female".199 Hence this Policy Paper tries to define gender as a social constructed norm rather than the biological state of the person and the Policy Paper can be defined as nuanced.200 Importantly is although that the Policy Paper only binds the OTP, it does not extend to the judiciary.201 However, these guidelines may sharpen the argumentation and investigation by the prosecutor, and from that point of view, guide the ICC in its interpretations and judgment.202
188 Policy Paper (n 137) para 15. 189 Ibid Use of Key terms. 190 Ibid para 26 and fotnot 23. 191 Oosterveld (n 186) 451. 192 Policy Paper (n 137) para 27. 193 Ibid para 33 fn 34. 194 Ibid para 16. 195 Ibid para 16. 196 Oosterveld (n 186) 453. 197 Policy Paper (137) para 67. 198 Ibid Use of Key Terms. 199 Oosterveld, (n 186) 447. 200 Ibid 447 and 449. 201 Valerie Oosterveld 'Gender at the Intersection of International Refugee Law and International Criminal Law' 12 Journal of Int Crim Law [2014] 953, 962. 202 Oosterveld, (n 186) 446 and Valerie Oosterveld 'Constructive Ambiguity and the Meaning of “Gender” for the International Criminal Court' 16 Int'l Feminist J Pol [2014] 563. 26
4.3 Defining "gender" under IRL Except for the Policy Paper, little guidance exists on how "gender" should be applied under ICL. In order for principles and definitions under IRL to apply as sources before the ICC, it must be proven that these principles and guidelines reaches the level of principles of international law or domestic law, through article 21 of the Rome Statute.203 As stated, definitions under IRL cannot be directly transferred to ICL. However, as argued, the ICC can be inspired by IRL as a tool for interpretation since no jurisprudence exists under ICL. Jurisprudence and guidelines from domestic legal systems can also be relevant.204 Since the Rome Statute is the first ICL instrument explicitly recognizing gender-based persecution and no judgment yet exists, contributions from other sources of law becomes important.205 Considering that developments of gender-based persecution under IRL supported the inclusion of gender-based persecution under the Rome Statue, a clear link between IRL and ICL exists.206
The term "Persecution" is not defined within the 1951 Convention Relating to the Statues of Refugees (the Refugee Convention), but it is understood as serious human rights violations.207 It is important to highlight that "gender" is not a ground for persecution under the Refugee Convention. Persecution is limited to the grounds of race, religion, nationality, membership of a particular social group and political opinion.208 Although, the United Nations High Commissioner for Refugees (UNCHR) has stated that taking gender-dimension of persecution into consideration is important with regards to refugee determination.209 UNCHR has also emphasized that the concept of gender is applicable to all categories of persecutory grounds, particular 'membership of a particular social group'.210 Hence, gender-based persecution under IRL is structed in a rather narrow sense. Since gender is a specific ground for persecution under the Rome Statute, the judges of the ICC should not evaluate all this narrow definition, since these are specific to IRL. Instead, the judges may use decisions under IRL and guidelines provided for under UNCHR in order to seek guidance of which kind of actions that may amount to persecution as well as definitions.211 According to UNHCR, "gender" refers to:
[…] the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another, while sex is a biological determination. Gender is not static or innate but acquires socially and culturally constructed meaning over time. 212
This definition clearly distinguishes between "sex" and "gender".213 Even though the prohibition of analogy applies in relation to the definition of gender, it is possible to argue that
203 Oosterveld, (n 8) 52. 204 Ibid 50-53. 205 Ibid 87-89. 206 Ibid 50-51. 207 The Refugee Handbook (n 60) para 51. 208 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) art 1(A). 209 UNHCR 'Guidelines on International Protection: Gender-Related Persecution within the Context of article 1A (2) of the 1951 Convention and/or its 1967 Protocol Relating to the Statutes of Refugees' (Geneva, 2002) para 1. 210 Oosterveld (n 201) 956 and UNHCR Gender Guidelines (n 229) para 22-34. 211 Oosterveld (n 8) 68-69. 212 UNCHR Gender Guidelines (210) para 3. 213 Oosterveld, (n 8) 77. 27 the prosecutor in the Policy Paper has drawn inspiration from the definition provided for by the UNHCR, since they are similar.214 Consequently, the definitions provided for by the prosecutor and UNCHR are similar to each other and inspiration from IRL is evident, which indicates that inspiration from IRL is legitimate.
4.3.1 Analysis and discussion What at least can be said, is that "gender" within the Rome Statute is very undefined. What is clear, although, is that several states did not think that persecution based on gender, basically protection of women and LGBTIQ persons, should be an explicit concern for ICL. This confirms the arguments put forward that violence against women rather been argued to be a by- product of war or conflict, and that cultural and social understandings of gender had a big influence on the definition. This debate also shows that even if the purpose of ICL is to prosecute the crimes of the most serious concern for the international community, ICL is limited by social and cultural values of states. The concern expressed by primarily Campanro and Moshan would result in the ICC taking the "easy way out" with regards to gender-based persecution, and prosecute gender-based persecution on other, less controversial grounds, as far as possible. Hence, the narrow definition of gender might be too overwhelming for the judges at the ICC to handle that it rather hinders gender-based persecution from being prosecuted in the first place, than providing a guidance for the judges.
However, the OTP has provided clear guidelines with regards to the definition of gender and that social constructed norms needs to be taken into consideration. Therefore, this should rule out that the ICC will only take the biological sex of the victim into consideration and ignore the Policy Paper but also take gender as a social construction, taking e.g. behaviors and expectation of traditional gender roles into consideration. The Policy Paper makes a lot of references both IHRL and IRL which confirms that even though the ICC because of the principle of legality cannot directly transfer definitions and principles from other branches of law, it can still be inspired and guided by it. Hence, it is possible to argue that drawing inspiration from IRL, a branch under PIL, better complies with the principle of legality than not relying on any legal material at all. Referring to already established legal material arguably better complies with a strict interpretation. The Policy Paper also specifically refers to internationally recognized human rights as they evolve over time. Thus, the definition of gender cannot be permanently determined and cannot be limited to the biological sex of the victims, as also the definition under IRL implies. As a conclusion, one of the most challenging aspects of the interpretation and application of gender-based persecution is the very definition of gender itself. Even though the prosecutor has provided a nuanced definition of gender, it is not legally binding for the ICC. There is still concerns that the definition might hinder prosecution of gender-based persecution because of an unclear definition and consequently result in a strict definition, which risks to exclude e.g. LGBTIQ persons
214 Oosterveld (n 186) 448. 28
4.4 Gender-based persecution and LGBTIQ The very purpose with the definition was by some states to exclude LGBTIQ persons. Some authors have also argued that such a definition in the Rome Statute reflects the will of the conservative states.215 However, inclusion or exclusion was not decided upon.216 It is argued that the very wording of "gender" does not support an exclusion, since the wording embraces discrimination on the basis of gender for not complying with stereotypical gender roles and that an unclear definition of gender should not be resolved by excluding LGBTIQ persons from protection under the 'highest international institution for universal justice', in favor of discrimination.217 Thus, Oosterveld argues that ignoring aspects of sexual orientation and gender identity would be difficult for the ICC, since the wording is open for interpretation.218 It is also argued that since sexual orientation contradicts prescribed gender norms it falls within the general definition of gender and consequently do not violate the principle of legality, since it do not cause ambiguity. Although it is more uncertain with those defining themselves outside the traditional scope of male and female, e.g. transgender, intersex and queer.219
Andrew Hagopian argues that persecution of men and women on the basis of their sexual orientation is persecution on the basis of gender, since it is possible to argue that the perpetrators may use sexual orientation to characterize gender. Hence, persecution of homosexual men or women by reason of their sexual orientation may be persecution on the basis of gender.220 Also the Policy Paper, when discussing Article 21(3) of the Rome Statute, makes references to efforts by the UN Human Rights Council and the Office of the High Commissioner for Human Rights (OHCHR) which highlights that discrimination on the basis of sexual orientation and gender identity must come to an end as well as CEDAW which states that gender is interlinked with sexual orientation and gender identity, indicating sexual orientation and gender identity as being a part of IHRL.221 In the light of that Oosterveld argues that the link between gender and sexual orientation and the references to article 21(3) and sexual orientation, the Policy Paper indicates that gender and sexual orientation are interrelated.222
The UNCHR Gender Guidelines has stated that persecution on the basis of sexual orientation contain a gender element. This can e.g. be the case, where the victim in question has not behaved in a manner that is expected through the biological sex of the victim.223 In 2012, the UNCHR released their special guidelines on sexual orientation and gender identity, which also states that LGBTIQ persons may be persecuted because they challenge behaviors and attributes assigned to their biological sex.224 The UN High Commission for Human Rights (UNCHR) also stated
215 Stephanie Farrior, 'The Rights of Women in International Human Rights Law Textbooks: Segregation, Integration, or Omission' (2003) 12 Colum Journal of Gender & L 587, 589 and Cossman (n 179) 284. 216 Andrew Sumner Hagopian, 'Persecution and Protection of Sexual and Gender Minorities under Article 7(1)(h) of the Rome Statute' (2016) 3 SOAS L J 55, 61. 217 Copelon (n 176) 237. 218 Oosterveld (n 8) 80. 219 Suri (n 117) 220 Hagopian (n 216) 61-62. 221 Policy paper (n 184) fn 23 222 Oosterveld (n 186) 452. 223 UNCHR Gender-Guidelines (n 209) para 16. 224 UNHCR Guideline (n 7) paras 12-15. 29 that violence against LGBTIQ persons, such as killing, rapes and sexual assaults constitute gender-based violence for those challenging the traditional gender roles assigned to them through their biological sex and that discrimination on the basis of sexual orientation or gender identity violates IHRL.225
However, with regards to regards to transgender or those identifying themselves outside the traditional scope of male and female, different opinions exist. Arguments has been mad that transgenders that identifies themselves as males or females, despite their biological sex prescribed to them by birth, might be included under the definition of gender considering the references to male and female in the definition of the Rome Statute. However, persons defining themselves outside the traditional scope of male or female, e.g. not defining themselves as either male or female or those which have unclear boundaries between their gender, gender identity or sexual orientation, falls outside.226 The same author also argues that 'within the context of society' is a hinder from including transgender within the definition of gender under the Rome Statute, since transgender has not become accepted in all countries.227 Hagopian argues that no such implications has been made by other scholars. He also argues that it is the identification of the group by the perpetrator and the intention by the perpetrator which is the crucial factor of an identifiable group and not the victims' identification of themselves, which would also capture those defining themselves outside the concept of male and female.228 References is made to the arguments by the Pre-Trial in the Prosecutor v Kenyatta, where the perpetrators assumption of the targeted group was enough.229 It is argued that persecution of e.g. female transgender might be persecution on the basis of gender, if the perpetrator assumes the victims of the targeted group to be males even though the victims does not identify themselves as males. Such an approach would also protect those defining themselves outside the traditional scope of male and female, as long as the perpetrator defines the victims of the targeted group as being males or females.230 It is also argued that the references to male and female should rather be interpreted in the light of a biological foundation than a biological determination and that the definition of gender must be broad enough to included groups which challenging traditional gender roles, e.g. LGBTIQ persons.231
In 2017 a communication with regards to persecution on the basis of gender by the Islamic State (ISIS), including sexual orientation and gender identity, were handed over to the ICC. In the communication, it is argued that both men and women which has not complied with prescribed gender norms or has not performed actions as expected of their gender identity, has being
225 UNHCR 'Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity' (17 November 2011) UN Doc. A/HRC/19/41, paras 8 and 20. 226 Brian Kritz, 'The Global Transgender Population and the International Criminal Court' (2014) 17 Yale Hum Rts & Dev LJ 1, 36. 227 Ibid. 228 Hagopian (n 216) 63 229 Ibid and Prosecutor v Kenyatta (n 140) para 144. 230 Hagopian (n 216) 63. 231 Oosterveld (170) 72 and 78. 30 accused of being homosexuals and has for that reasons been subject for e.g. torture and execution.232 However, no proceedings has yet been initiated.
4.4.1 Analysis and discussion Differences in opinion exists if sexual orientation and gender identity is a part of gender-based persecution, especially gender identity. The Policy Paper is so far is the only legal document under the ICC to explicitly support an inclusion under the Rome Statute, by referring to both IHRL and IRL. Considering the position of the Policy Paper, it would be hard for the ICC to ignore it, despite its non-binding effect. The Policy Paper has made clear that gender refers to socially constructed norms and attributes assigned to males and females. It is possible to argue that the crucial is the underlying assumption of the victims' gender by the perpetrator and behaviors and attributes addressed to that gender that is excepted by the perpetrator. Hence, if the targeted group is severely deprived of their fundamental rights because they are challenging traditional gender roles (e.g. by being homosexual or transsexual) from what it expected of their perceived gender (male or female) through the perspective of the perpetrator, is arguably gender-based persecution. In the light of that, it is difficult to understand why transgenders which identify themselves as the opposite sex and people of different sexual orientation should be protected against gender-based persecution and those identifying themselves outside the traditional scope of male and female, should be excluded. Thus, it is possible to argue that an interpretation giving protection to all LGBTIQ persons challenging traditional gender roles prescribed to males and females, falls within the general definition of gender since all at the end is challenging the attributes to the biological sex assigned to them by birth. In the light of the result of the Rome Conference, a strict and clear definition of gender does not exist, which gives the ICC room for interpretation. In sum, it is possible to argue that inclusion of LGBTIQ persons challenging gender norms assigned to males and females does not violate the principle of legality.
4.5 Persecution on the basis of gender? In order for an act to constitute gender-based persecution, the targeting of the group must be based on the specific intent to discriminate on the basis of the gender of the victim. Even though several crimes in the Rome Statute are explicitly recognized as gender-related, such as rape, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilization233 it must be proved that the crimes took place with an intent to severely deprive the victim of fundamental human rights because of their gender. Hence, a causal connection must exist.234 But it is also important to remember that gender-based persecution does no need to be conducted through a gender-specific crime or a sexual crime. Both the ICTY, the ICTR and the ICC has recognized that sexual violence and "gendered media" can constitute acts of persecution.235 The ICTY has also recognized that a personal motive behind the sexual violence committed, does not exclude
232 Communication to the ICC Prosecutor Pursuant to Article 15 of the Rome Statute Requesting a Preliminary Examination into the Situation of: Gender-Based Persecution and Torture as Crimes Against Humanity and War Crimes Committed by the Islamic State of Iraq and the Levant (ISIL) in Iraq (8 November 2017) para 83. 233 Policy paper (n 137) Executive Summary and the Rome Statute, art 7(1). 234 Oosterveld (n 8) 81-82. 235 Ibid 60, referring to e.g. see the Media case (n 98) and Prosecutor v. Kvočka (Judgment) IT-98-30/1-T, T Ch (2 November 2001) paras 752 and 327, Prosecutor v. Bosco Ntaganda (n 126). 31 a discriminatory intent.236 Thus, in addition to the definition of gender another challenge regarding gender-based persecution is how the link between the targeting and the gender of the victims should be established.237
The UNHCR gender guidelines has stated that rape and other forms of gender-related crimes, female genital mutilation and trafficking are acts which inflict severe pain and suffering, both mental and physical and may amount to persecution.238 Since it previously been stated that the Rome Statute contains gender-related crimes against humanity, logically, these crimes can amount to persecution, as well other crimes without sexual elements. The ICC has stated, see above, that theoretically, a violation of any of the crimes listed under article 7 is regarded as a severe deprivation of fundamental human rights. However, the challenging aspect is to recognize the severe deprivation of fundamental rights by reason of the gender of the targeted group.
Even though the ICC can draw inspiration from IRL with regards to the application and interpretation of gender and which circumstances that amounts to persecution, evidence under IRL exist that e.g. rape has rather been considered as a personal desire for the perpetrator or as a private common criminal offence, rather than a form of persecution.239 Examples of this can be found in several refugee cases from national courts, where rape has been described as a simple lust for the perpetrator and forced marriage has rather been regarded as an act of aggression against the enemy than an act of gender-based persecution.240 Another concern under IRL is that decision-makers have often regarded acts of rape as an indirect consequence of a conflict and not as a self-standing act of gender-based persecution.241 It has been argued that rape is a gender-based discrimination and is used to control the civilian population. Therefore, the perpetrators intent behind the rape, must be considered. This interpretation and applications have been called gender-based violence, particularly sexual violence, exceptionalism.242
The same kind of exceptionalism has been proved to exists also under ICL.243 In the Dordevic judgment, the ICTY concluded that the sexual assault taking place did was not persecution, since the discriminatory intent could not be identified.244 Another example is the case Rukundo where the ICTR concluded that the rape was 'unplanned and spontaneous' and not a part of the genocide taken place.245 Even though the ICC as the first International Criminal Court explicitly lists gender-related crimes under the Statute246, gender-related crimes has not been successfully prosecuted. One of the purposes with the Policy Paper by the OTP was to combat the difficulties
236 Prosecutor v. Kvočka (Judgment) IT-98-30/1-A, A Ch (28 February 2005) para 463. 237 Oosterveld (n 8) 63. 238 UNHCR Gender Guidelines (n 209) 9. 239 Oosterveld (n 201) 957-959. 240 Ibid. 241 Ibid. 242 Ibid 957, 959-960. 243 Ibid 960. 244 Prosecutor v. Dordevic, Judgment, (IT-05-87/1-T) T Ch II (23 February 2011) paras 1796-1797. 245 Prosecutor v. Rukundo, Judgment (ICTR-2001-70-A) A Ch (20 October 2010) para 236. 246 Steains (n 4) and the Rome Statute (n 5) art 7(1). 32 regarding retaining charges of sexual violence. Between the years of 2002-2014, the prosecutor brought 57 charges of sexual and gender-based violence in 20 cases. At the end, none of these charges resulted in conviction.247 This shows an overwhelming vulnerability of bringing charges of sexual violence and gender-based violence.248 A more recent judgment is the Prosecutor v. Jean Pierre Bemba Gombo, where Bemba, first at the ICC, was convicted for rape as a crime against humanity and rape as a war crime.249 Although, on appeal, Bemba was acquitted of all the charges, including acts of rape and sexual violence.250 Prosecutor v. Bosco Ntaganda is so far the only judgment where the prosecutor has succeeded in retaining charges of sexual violence even at the stage of conviction. However, even though the case is important with regards to gender-based violence the perpetrator was also convicted for acts of persecution through rape and sexual slavery, but on the grounds on ethnicity. The judges did not go any further in exploring the gender dimensions on the sexual violence that occurred.
Under IRL, divided opinion exists regarding the link between sexual violence and gender-based persecution. It has been argued that just because a person is victim of a gender-related crime, e.g. rape, it does not mean that the person was persecuted because of their gender, just like a person victim of a non-gender-related crime may be persecute because of their gender.251 Since gender-based persecution is a specific ground for persecution under ICL, the need to find persecution on the grounds of gender through the other grounds, as is the case under IRL, is not necessary. However, the arguments of a direct link between the gender of the person, the violation taking place and the persecution is still important to have in mind for the judges at the ICC.252 On the other hand, it is argued that rape and sexual violence against women always constitutes gender-based persecution, since gender-specific violence is always guided by gender-based discrimination and can never be gender-neutral.253 All of this approaches will probably help the ICC in understanding the link between persecution and gender.254 Oosterveld argues that IRL can offer important guidelines on how gender dimension can be identified and consequently the link between gender and persecution. References is mad to UNHCR Gender Guidelines, which states that a woman challenging certain acts required by them through religion, may be classified as unaccepted political opinion. Hence, if the intersection between gender and e.g. religion is not analyzed, the persecutory ground may be classified as religion rather than religion and gender.255 If such an approach is ignored, there is a risk that ICC will overlook gender dimensions of e.g. a woman having a political opinion, and simply classify the act as persecution on the basis of political opinion, without considering gender dimensions.256
247 Oosterveld (n 186) 445-446. 248 Ibid 445-446. 249 Prosecutor v. Jean Pierre Bemba Gombo, Judgment, ICC-01/05-01/08 (21 March 2016) para 752 250 Prosecutor v. Jean-Pierre Bemba Gombo, Case Information Sheet, ICC-01/05-01/08 (March 2019). 251 Oosterveld (n 8) 82-83 referring to Audrey Macklin, 'Refugee Women and the Imperative of Categories' (1995) 17 Human Rights Quartely 213, 258-259. 252 Oosterveld (n 8) 84. 253 Ibid 85 and Anthea Roberts 'Gender and Refugee Law' (2002) 22 Australian YB of In´t Law 159, 189. 254 Oosterveld (n 8) 85. 255 Ibid 86 and UNHCR Gender Guidelines (n 208) para 26 256 Ibid 86 33
Hence, IRL can provide contributions on which violations of fundamental rights that may amount to gender-based persecution, understand gender as a social construction as well as how the causal link between gender and persecution should be established. But it is also important that the ICC, if seeking guidance under IRL, can identify the flaws of gender-based persecution under IRL. Otherwise there may be the risk that the exceptionalism applied in domestic will be applied by the ICC was well.257 Considering gender-based persecution through acts of sexual violence, it is important for the ICC to understand that both a personal motive and a discriminatory intent can exist simultaneously, and does not need to exclude each other. Thus, the underlying motive behind sexual violence must always be considered.
4.5.1 Analysis and discussion Even though males, females and LGBTIQ persons may fall victims for sexual violence and other forms of gender-based violence, the history and drafted treaties under primarily IHL and IHRL shows that women, or those by the perpetrator defined as women, are more likely to fall victims of primarily rape and sexual violence. Through the findings under IRL and ICL concerning sexual violence as an act of persecution, flaws in the application exists. Under IRL, there is tendencies in domestic legal systems that rape is not regarded as an act of gender-based persecution, rather as a personal or private act. Under ICL there is also a tendency that rape and other forms of sexual and gender-based violence is rather regarded as a byproduct of war, than as an independent crime. A debate under IRL is whether sexual violence always constitutes an act of gender-based persecution or not.
The intent requirement of persecution leads the crime to be the one containing the highest bar of crimes against humanity, a requirement closer to genocide. Regarding the history of the flaws in adjudicating sexual and gender-based violence such as rape as independent crimes, adding an even higher requirement, persecution through acts of sexual violence because of the gender of the victim, will probably be even harder to prove. Also, by the fact that sexual violence as a discriminatory act been hard to recognize. Even though it has been argued that rape and sexual violence always constitutes acts of gender-based persecution, the specific intent requirement and cited case-law indicates that just conducting the act is not enough to constitute persecution under ICL, even though the crime is classified as gender-related. Consequently, there is a risk that victims (primarily women) of gender-based persecution through the acts of sexual violence, indirectly risks being excluded. Not because they are not protected under the definition of "gender" (as might be the case for LGBTIQ persons), but because of the existence of "exceptionalism". Even though just the conduct of sexual violence not automatically results in persecution, the gender elements behind the sexual violence must be investigated.
But IRL can serve as important guidelines with regards to the definition of gender, its intersection to sexual orientation and gender-identity, which acts that may amount to persecution and especially in understanding the connection between gender and persecution. Even though the definition of gender under IRL and the prosecutor's definition in the Policy Paper are similar, such similarities will probably apply more edge to the definition provided for
257 Oosterveld (n 8) 52, 87-89 and Oosterveld (n 201) 973-974. 34 by the prosecutor, and legitimate the position by the prosecutor. The IRL can also offer guidelines in identifying gender elements of persecution, in order to avoid a situation where gender dimensions are overlooked.
4.6 Cases before the ICC So far, no conviction on gender-based persecution exists. However, prosecutions have been brought before the ICC a few times. The first case, Prosecutor v. Callixte Mbarushimana, was initiated in 2010. The case concerned widespread and systematic attacks against civilians in Congo by the FDLR, also called the 'Liberation Force'. Callixte Mbarushimana was pointed out as one of those bearing the greatest individual criminal responsibility for committing these crimes.258 The prosecutor brought accusations that acts of gender-based persecution had been committed by the FDLR. According to the prosecutor, gender-based persecution had taken place by intentionally and in a discriminatory manner targeting women and men by conducting rapes, torture other inhuman acts and inhuman treatment.259 The prosecutor argued that sexual violence regardless of the gender of the victim, in addition of being an violation against the individual on the basis of gender 'is a particularly efficient manner to provoke ostracisation of those violated, to break down communities, and to spread disease'.260 When carried out in a large scale it is not only sexual violence against the individual but also persecution on the basis of gender against the collective.261 The women and girls are being raped because they are easy targets and can be put as objects of the FDRL versus their families. Men and boys are being raped because it violates their manhood. This results in communities that lives in fear.262 However, in the decision on confirmation of charges, the Pre-Trial stated that it had not been sufficiently proved that Mbarushimana was individual criminal responsible for committing the acts in question.263 The prosecutor was also criticized for presenting the charges in 'vague' terms.264 Hence, the accusations were never tried before the ICC. Oosterveld argues that the Policy Paper will help the OTP to avoid such outcomes because of inadequate investigations.265
Another case is the Situation in the Islamic Republic of Afghanistan where the prosecutor in 2017 requested an authorization in order to initiate an investigation for the crimes taking place on the territory of Afghanistan.266 It was argued that the group in question had been targeted based on their actual or perceived political affiliation with the Afghan government and that female politicians, public servants and students were also targeted because of their gender, in addition to their political affiliation. This is pursuant to the political ideology of the Taliban, which has prevented girls and females from studying, teaching, working or participation in
258 Situation in the Democratic Republic of Congo, Case No. ICC‐01/04, Prosecution’s Application under Article 58, (20 August 2010) 4. 259 Ibid 17. 260 Ibid para 97. 261 Ibid para 97. 262 Ibid. 263 Prosecutor v. Callixte Mbarushimana, Case No. CC-01/04-01/10, Decision on the confirmation of charges (16 December 2011) paras 293-303. 264 Ibid para 110. 265 Oosterveld (n 186) 446. 266 Situation in the Islamic Republic of Afghanistan, Case No. ICC-02/17, Public redacted version of 'Request for authorization of an investigation pursuant to article 15 (20 November 2017). 35 public affairs, through intimidation, death threats, abductions and killings.267 As an example, the prosecutor brought up the killings and threats against female politicians and female members of the Afghan police force. As evidence of gender-based persecution, the prosecutor brought up public announcements and "night letters", with the purpose of threatening females away from work or parents from sending their girls to school, and threats directed to teachers, the school administration and students.268 However, the Pre-Trial concluded that even though sufficiently evidence existed that acts of gender-based persecution had taking place, a scenario of a successful investigation was regarded as extremely limited and would rather risk creating frustration and hostility in relation to the ICC. Initiating an investigation would therefore not serve the interest of justice.269 Although recently, the decision was allowed to be appealed.270
The third case will be first one to be tried before the ICC. Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud concerns accusations that crimes against humanity, including gender-based persecution, and war crimes had taken place on the territory of Timbuktu, Mali. In the context of the conflict taken place, the two groups Al-Qaeda in the Islamic Maghreb (AQIM) and Ansar Dine, took control over the city in Timbuktu and used terror to impose their vision of religion over the civilian population by imposing their own men and structure of e.g. the Islamic Police.271 Mr. Al Hassan, as the in facto chief of the Islamic Police, played an important role in carrying out primarily the persecution on religious and gender grounds.272 In the Pre-Trials decision, is it argued that the people of Timbuktu had been severely deprived their rights of freedom of religion, freedom of expression, freedom of thought, freedom of association and assembly, freedom of movement, equality, education, privacy, personal dignity, security and property. Thus, through the acts of violence to person, outrages upon personal dignity, passing of sentences without previous judgment pronounced by a regularly constituted court, other inhumane acts, rape, sexual slavery and attacking monuments dedicated to religion, the deprivation of those rights are argued to constitute persecution on the grounds of religion.273
Regarding gender-based persecution, the Pre-Trial argues that AQIM and Ansar Dine specifically targeted women and girls on gender and religious grounds. It is argued that women and girls were hounded in the city, in schools and in hospitals. Women and girls were harassed daily and were subject to abusive systematic searches in a humiliating manner. Women and girls were detained under inhuman conditions were some of them were subject for rape and
267 Situation in the Islamic Republic of Afghanistan (n 265) Para 113 – 116. 268 Ibid paras 117 – 121. 269 Situation in the Islamic Republic of Afghanistan, Case No. ICC-02/17, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Islamic Republic of Afghanistan (12 April 2019) paras 87-96. 270 Situation in the Islamic Republic of Afghanistan, Case No. ICC-02/17, Decision on the Prosecutor and Victims’ Requests for Leave to Appeal the ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan (17 September 2019). 271 Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Case No. ICC-01/12-01/18, Warrant of Arrest for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (27 March 2018) paras 5-11 272 Ibid paras 6– 11. 273 Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Case No. ICC-01/12-01/18 Decision on the Prosecutor’s Application for the Issuance of a Warrant of Arrest for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (22 May 2018) paras 89. 36 sexual violence.274 Any form of belief or practice contrary to the new rules established were punished, and the most severe restrictions applied to women and girls and were particularly targets of humiliating treatment, sexual violence and forced marriage.275 In the light of these findings, the prosecutor argues that in the first place, the AQIM and Ansar Dine targeted the people of Timbuktu on religious grounds, and in the second place targeted women and girls on gender grounds, by applying stricter rules and attacking them for even the smallest breach. The Pre-Trial decided that reasonable grounds existed to believe that persecution on the basis of religion and gender had taken place.276 By the 30th of September 2019, charges were officially confirmed.277 Consequently, this will be the first case in the history of ICL where an international criminal court will be given the opportunity explore and decide upon persecution on the basis of gender. If the ICC chooses to interpret gender as a social construction the court will not be limited to decide on persecution on the basis of the biological sex of the targeted group but instead will be able explore what it means being female under the religious rules imposed in that society.278
The last and fourth case is currently pending before the ICC and does not include charges of gender-based persecution, despite the context the crimes took place within. In Prosecutor v. Dominic Ongwen, Dominic Ongwen is charged as individual criminal responsible for committing crimes against humanity and war crimes, including acts of sexual slavery, rape, forced marriages and forced pregnancies carried out by the LRA forces in the Northern part of Uganda. Except for attacks and hostilities between the LRA and the government of Uganda, attacks were also carried out against civilians, especially those residing in camps established by the government. According to the leadership of the LRA, civilians residing in the camps were supporters of the government and were therefore legitimate targets of the attacks.279
According to the evidence, gender-based crimes had been conducted on a large scale. It is stated that eight women were abducted by the LRA and distributed to the household of Dominic Onwgen. At the household, they all became the "wives" of Ongwen, became his domestic servants, were deprived of their liberty and forced to sexual intercourse, which resulted in pregnancies for several of the women abducted.280 Evidence is presented that this was a part of a common plan, and between the years of 2002-2005, girls and women were abducted from their homes in Northern Uganda to become the "wives" of the LRA fighters, deprived of their liberty, forces to perform duties and subject for sexual violence.281 However, even if these acts
274 Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (n 272) paras 90-91. 275 Ibid 91-96. 276 Ibid. 277 Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Case Information Sheet, Case No. ICC- 01/12-01/18 278 Rosemary Grey, 'International Criminal Court poised to interpret the crime of "gender-based persecution" for the first time' (International Law Girls – voices on international law, policies and practice, 12 April 2019)
4.6.1 Analysis and discussion In Prosecutor v. Callixte Mbarushimana the prosecutor argued that the conduct of sexual violence on a large-scale generally threatens societies in such a great detail that such crimes should be regarded as gender-based persecution in itself. Even though such a statement was never tried before the chamber, and that such findings finds support in primarily IRL, it is most likely that just the conduct of sexual violence would not constitute persecution on the basis of gender. The ICC would probably refer to findings already made by the ICTY that it is the intention requirement that distinguish persecutions from other crimes within the statute. But, not carefully evaluating the arguments by the prosecutor would also risk this case to fall within sexual violence "exceptionalism". The "vague" formulation of gender-based persecution also shows the need for the prosecutor to draw inspiration from e.g. IRL since no other guidance exists and the sensitivity of persecution as an international crime; the intent requirement. It also illustrates a need for the prosecutor in having guidelines on how to conduct investigation relating to gender-based persecution. Most likely, the Policy Paper by the prosecutor is such guideline which will eliminate cases where gender-related crimes, such as gender-based persecution, is rejected on the basis of an inadequate argumentation and investigation.
In the other cases involving prosecutions on gender-based persecution, the persecution has not primarily been based on the sexual violence conducted, even though sexual violence also took place. The prosecutor rather argues that differences in treatment between males and females as a mean of religion or political opinion through a policy, e.g. stating that women were particularly targets under this regime or that harder rules applied for women than men, constitute gender-based persecution. Hence, the gender-aspects of the offences have been taken into account, an approach which finds support in the IRL as well. Even though the Situation in Afghanistan, were rejected by the Pre-Trial (a decision which is appealed) it was confirmed that the material elements of all the crimes were fulfilled, including gender-based persecution. Also, this year it became clear that the ICC will deliver its first judgment of gender-based persecution. Despite the outcome, the case will be important considering the intention requirement on the basis of gender, as well as the definition of gender. The ICC will probably consider what it means being a female within the context of the specific political society, in this specific case. But, even if it is a positive development that gender dimensions are recognized, gender-based persecution not explicitly conducted through a religious or a political policy, seems harder to identify.
The absence of prosecutions of gender-based persecution in Prosecutor v. Dominic Ongwen, is interesting in the light of the charges contained and the context the crimes took place in within.
282Prosecutor v. Dominic Ongwen (n 278) paras 52 and 35. 38
The crimes were only committed against women and are explicitly classified as gender-based crimes, which makes it clear that gender elements of the crimes exist. Since the targeted women became the "wives" of the perpetrator, were forced to perform duties and became pregnant as a result of rape and sexual violence, it is evident that all the woman targeted were targeted as a result of being females. The specific crimes committed against them were a result of the norms and behaviors attributed to the social construction of being a woman, being a wife and performing duties at home, and especially the forced pregnancies, since only women can be subject for pregnancy. Thus, Prosecutor v. Dominic Ongwen is a clear example where the theories of sexual and gender-based violence exceptionalism applies as well as the argument that gender-based persecution will be undermined in favor for other grounds of persecution.
In the light of the few cases presented, those cases which contained an explicit religious or political policy against females, were argued to constitute gender-based persecution and those cases in the absent of such explicit policy, did not contain this charge. On one hand, this illustrates that the prosecutor has adopted a new gender perspective. On the other hand, this risk to directly exclude the ICC from analyzing gender-based persecution in absence of such policy, explicitly through other means, e.g. religion or politic.
4.7 Feminist critique of CIL This section specifically relates to the feminist method 'Asking the women question' which serves the purpose of examining if the application and interpretation of legal rules and principles risks to exclude certain groups from protection, such as women and LGBTIQ persons. This has especially been applied in chapter 4. Therefore, in this section some critic against ICL in relation to gender-based persecution will be presented. Feminist scholars have for a long time criticized PIL for reflecting a male perspective, which consequently risks excluding women and LGBTIQ persons. One particular critic is that PIL primarily applies to matters of public concern and less in matters of private concern which risks to undermining and ignoring women.283 With regards to ICL, this critic of exclusion becomes even more relevant.
Hilary Charlesworth argues that even though feminist activism has resulted in inclusion of gender-related crimes under the Rome Statute, the new rules also indicates that the international criminal system is still not purely based on the experience of women.284 Under article 27 of the fourth Geneva Convention285 rape is recognized as a crime against the honor of the woman, indicating women as men's property rather focusing on protection than prohibition.286 Even though the ICTY and the ICTR provided a more robust answer to sexual violence, Charlesworth argues that both the ICTY and the ICTR recognized rape and sexual violence as wrongful acts, but not because of the fact that it is a crime against women and a demonstration of male dominance, but because it is an assault on the community as a whole.287 Charlesworth concludes
283 Hilary Charlesworth and others, 'Feminist Approaches to International Law' (1991) 85 Am J Int'l L 613, 621- 626. 284 Hilary Charlesworth, 'Feminist Methods in International Law' [2004] 36 Studies in Transnational Leg Policy 159, 171. 285 The IV Geneva Convention (n 83) article 27. 286 Charlesworth (n 284) 171. 287 Ibid 171-172. 39 that this results in the fact that ICL operates on the public sphere and leaves the private sphere of the individual untouched. Since women have been excluded from the public sphere, the community is often defined by the men living in it, leading to distinction between public and private to result in gender consequences, where the gender perspective risks being excluded.288 Another feminist critique against ICL is that there exists a gap in the legal reforms and its practical effect, which is also dependent on the difficult question related to individual criminal responsibility of the perpetrator. This leads to the fact that just legal reforms are not enough, e.g. by the fact that many victims experience testifying of their experience of sexual violence as humiliating.289 Also, implementing legal reforms recognizing the special concern for women also risks to reinforce the gender hierarchy rather than breaking it down, placing gender-related crimes in a limbo position. Hence, recognizing the special protection of women risks to strengthen existing gender stereotypes, but including women under general protection risks that the special need for women disappears in a masculine universe.290 Another critique by feminist scholars is that ICL has focused in such a great detail on rape that other gender-based crimes risks being ignored or sidelined and that the tendency to define gender as equivalent to women risks to exclude rape and other forms of sexual violence committed against men, even though Nicola Henry argues that the very attention given to sexual crimes, opens up the possibility in prosecuting other gender-related violence.291
In relation to gender-based persecution, Chertoff argues that the primarily focus on rape risks to reduce gender-based persecution to a genocidal purpose and fail to recognize the direct harm imposed as a consequence gender-based persecution.292 As previously discussed, there is a risk that the focus on rape and sexual violence might minimize the attention of other forms of gender-based violence, which not necessarily takes the form of sexual violence. However, the lack of a clear gender perspective becomes especially evident with regards to gender-based persecution. The question of "gender" is the very meaning of gender-based persecution. If the gender perspective is excluded when applying gender-based persecution, in the light of the argument put forward by Charlesworth, the very purpose of the crime would be rendered pointless, since such an approach would not take into consideration the gender element behind the crime. Hence, the different roles of men and women in a society would not be taken into consideration, which would exclude protection of primarily women and LGBTIQ persons. Even though strong indications exist that gender in the Rome Statute shall be interpreted as a social construction, the wording of the Rome Statute has not fully embraced such an approach. Thus, the critic of ICL by feminist scholars for still representing the public sphere, the 'male' community is evident in relation to gender-based persecution, since there is a concern that the approach to gender-based persecution under the Rome Statute risks creating gaps in the protection of LGBTIQ, through the definition, and primarily women, by not recognizing the link between sexual- and gender-based crimes and persecution on the basis of gender.
288 Charlesworth (n 284) 173. 289 Dianne Otto 'Feminist Approaches to International Law' in Anne Orford and Florian Hoffmann The Oxford Handbook of the Theory of International Law (OUP 2016) 500-502. 290 Ibid. 291 Nicola Henry, 'The Fixation on Wartime Rape: Feminist Critique and International Criminal Law' (2014) 23 Soc & Legal Stud 93, 98-99. 292 See Chertoff (n 30) 1055. 40
5. ILC draft articles on crimes against humanity 5.1 Introduction – a pressing need for a specialized convention? Already in 1994, M. Cherif Bassiouni expressed a need for a specialized convention on crimes against humanity, in addition to a permanent international criminal court.293 Arguments have been made that the international community are in need of such a convention for several reasons. First, it is argued that the fact that several states has not yet ratified the Rome Statute, in contrast to e.g. the Genocide Convention which is widely ratified. Thus, a specialized convention would probably gain more ratifications. The second aspect is the question of state responsibility, since the Rome Statute only gives rise to individual criminal responsibility. Even though the Genocide Convention, drafted in 1948, includes several acts which constitutes a crime against humanity, the intent requirement and the chapue elements of the crimes are not the same.294 This becomes significantly clear in the case of Bosnia v. Serbia295, where all crimes which did not fulfilled the prerequisites for genocide fell outside the jurisdiction of the ICJ.296 Thus, no specialized treaty exists which leads to state responsibility for committing crimes against humanity.297 Thirdly, the differences in definitions between the statutes of the ICTY, the ICTR and the ICC leads to uncertainties. Lastly, the absence of a universal treaty on crime against humanity risks leading to attitudes that the crime is less serious than e.g. genocide.298
As a response to an international need and in order to file gaps which the Rome Statue could not file, the ILC decided to include the topic of 'Crimes Against Humanity' in its program and investigate the possibilities for such a treaty.299 In the first report, the Special Rapporteur Sean D. Murphy proposed that the specialized treaty should copy the wording of crime against humanity directly from the Rome Statute.300 The first draft version of the final treaty provisions was published in 2017, containing 15 articles. In addition to complementing the Rome Statute, first draft version clearly established provisions relating to interstate cooperation, extradition and mutual legal assistance.301 Article 6 stated that each state shall take all necessary measure in order to ensure that crimes against humanity are also criminalized under national law provisions.302 Dispute shall be settled at the ICJ.303
293 Bassiouni (n 47) 458 and 466. 294 Leila Nadya Sadat 'A Contextual and Historical Analysis of the International Law Commission’s 2017 Draft Articles for a New Global Treaty on Crimes Against Humanity (2018) 16 Journal of International Criminal Justice 683, 685-686. 295 Ibid 685 and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Judgment, [2007] ICJ Rep 43. 296 Sadat (n 294). 297 Ibid. 298 Ibid. 299 ILC 'Report of the International Law Commission para on its work on the sixty-sex session' (5 May–6 June and 7 July–8 August 2014) Un doc. A/69/10, para 266. 300 ILC 'First report on Crimes Against Humanity by Sean D. Murphy, Special Rapporteur' (2015) Un doc. A/CN.4/680, para 177. 301Sadat (n 294) 687 and ILC 'Crimes against humanity Texts and titles of the draft preamble, the draft articles and the draft annex provisionally adopted by the Drafting Committee on first reading' (25 May 2017) Un doc. A/CN.4/L.892. 302 ILC (n 300) arts 12-14 and annex. 303 Ibid art 15. 41
5.2 Gender-based persecution under a specialized convention Despite arguments that there is an international need for a specialized convention on crimes against humanity, the first draft version of the proposed articles was also criticized in several aspects. One of those criticized provisions was the previous article 3(3), the definition of gender. In the first draft version of the treaty, both "persecution" and "gender" were defined in exactly the same wording as in the Rome Statute. According to the Special Rapporteur, the definition of crimes against humanity under article 7 of the Rome Statute has been widely accepted.304 As presented and analyzed above, the definition of gender under the Rome Statute has been described as peculiar and unclear, and for that reason, expectations existed that the ILC would choose a clearer definition.305 Although, important to highlight is that the first report of the Special Rapporteur explains that gender can be interpreted as referring to social constructed roles and differences assigned to the two biological sexes, and that gender is more inclusive than sex.306
However, the first draft version was heavily criticized by both states and NGO: s. For example, the Office of the High Commission for Human Rights (OHCHR) at the UN, argued that the definition of gender contained in the Rome Statute is outdated, does not reflect the evolution of international law, and risks defining gender as equal to sex. In addition to referring to IHLR treaties, references were also made to General Recommendation 28 provided for by CEDAW which defines gender as a social construction which results in a hierarchical relationship between men and women, which disadvantages women.307 The OHCHR also referred to the definition provided for by the Policy Paper which clearly distinguishes between sex and gender. Adopting the Rome definition of gender would prevent States Parties obligations to protect those individuals not complying with traditional gender roles.308 In addition, a number of Special Rapporteurs from the United Nations drafted a joint comment on the draft articles by the ILC, also arguing that the definition of 'gender' in the Rome Statue is outdated, that the definition has never been adopted by subsequent human rights treaties and refers in great detail to the definition adopted by the Policy Paper.309 Defining "gender' as equivalent to "sex" does not finds support in any of the contributions from the work by the special rapporteurs in their specific area. Hence the joint comment proposed that either the definition of gender should be excluded from the proposed convention or a definition clearly defining gender as referring to socially constructed gender roles.310
Also, NGOs have expressed that specifically General Recommendation 28, adopted by the CEDAW, recognizes the interrelation between sex, sexual orientation and gender identity just
304 First report by the Special Rapporteur (n 300) para 8. 305 Daniel Hits 'New Crimes Against Humanity Treaty Must Not Perpetuate Outdated Definition of Gender' (Opinio Juris, 24 January 2019) accessed 30 October 2019. 306 First report by the Special Rapporteur (n 300) para 168-169. 307 UN Committee for the Elimination of All Forms of Discrimination against Women, 'General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women' (16 December 2010) Un doc. CEDAW/C/GC/28. 308 OHCHR 'Observations on the text of draft articles on crimes against humanity adopted by International Law Commission on first reading' para 13-19. 309 Comments to the Draft Crimes Against Humanity Convention (30 November 2018). 310 Ibid. 42 like the Policy Paper adopted by the OTP. According to the Global Justice Center, there are no reasons that gender-based persecution should be treated differently than the other grounds and that the proposed convention fails to give adequate protection of gender-based crimes.311 The War Crimes Committee of the International Bar association (IBA) supported the definition under crimes against humanity since 123 states have ratified the Statute. However, the IBA also expressed that if any of the definitions should be overlooked, the definition of gender is of highest priority. Considering the controversy surrounding the article, drafting a permeant treaty on crimes against humanity would be an opportunity to define gender in a broader term in an international context. Also, the IBA supported that an option may be to exclude the whole definition. Having an open and undefined definition would probably be better than having an unclear and narrow definition.312 By December 2018, 103 NGO:s signed a letter addressed to the UN, arguing that either the definition of gender should be excluded or replaced with the definition provided for in the Policy Paper.313 In addition to the critics from the UN and NGO:s, several states also criticized the adopted definition of gender such as Canada, Chile, Costa Rica Estonia, Bosnia Hercegovina and all the Nordic countries also argued that such definition was outdated and did not reflect current CIL.314 Surprisingly, considering the critics and inputs from states, the UN and NGO:s, the Special Rapporteur suggested that the definition of gender should be removed from the proposed convention.315 This was later decided upon,316 and the second draft version of the convention, does not contain a definition of gender.317 According to the Statement by the Chairperson, the definition of gender should instead be incorporated in the comments to the Convention.318 However, it is still under its drafting process. Thus, the proposed convention has not been adopted yet.
5.2.1 Analysis and discussion What becomes clear is that several states and NGO: s clearly had an expectation that the drafted convention should provide something new, which would reflect the current statues of human rights and international law. In the light of the strong criticism against the identical definition, the international community has taken a stand. Since the definition was dropped, this illustrates that the ILC thought that the definition of gender stated in the Rome Statute does not reflect CIL or international human rights law. Even if the ILC did not propose a new and broader definition more in line with the definition contained in the Policy Paper (a suggestion), dropping
311 Global Justice Center – Human Rights through the Rule of Law 'Submission to the International Law Commission: The Need to Integrate a Gender Perspective into the Draft Convention on Crimes Against Humanity' (November 2018) 11. 312 War Crimes Committee of the International Bar Association (IBA) 'Comments on the International Law Commission’s Draft Articles on Crimes Against Humanity' (November 2018) 7-8 313 Letter to the Secretary-General from 583 NGOs 're: Gender in the draft crimes against humanity convention (3 December 2018) 1. 314 ILC 'Fourth report on crimes against humanity By Sean D. Murphy, Special Rapporteur' (2019) Un doc. A/CN.4/725, paras 80-83. 315 Ibid para 86. 316 ILC 'Statement of the Chair of the Drafting Committee, Mr. Claudio Grossman Guiloff' (Seventy-first session Geneva, 29 April-7 June and 8 July-9 August 2019) 7-8. 317 ILC 'Crimes against humanity Texts and titles of the draft preamble, the draft articles and the draft annex provisionally adopted by the Drafting Committee on second reading - Prevention and punishment of crimes against humanity' (22 May 2019) A/CN.4/L.935. 318 ILC (n 316). 43 the definition excludes a narrow and unclear definition, and instead give rise to a broad spectrum of interpretations, as argued.
It is important to mention that even though the ILC has taken a progressive step, have listened to critic and suggestions by possible state parties as well as NGO:s, the ICC is because of the principle of legality as well through article 21 of the Statute bound with the definition of gender in the Rome Statute. Breaches and violations of the prosed convention is to be solved before the ICJ and not the ICC. The proposed convention also only composes state responsibility, while the Rome Statute applies in relation to individual criminal responsibility. Hence, the proposed convention is not a legal document the ICC explicitly can rely upon when the Rome Statute offers a definition of gender. However, also through article 21 of the Statute, interpretations of the Rome Statute cannot be in violation of fundamental human rights and principles of international law can be applied. According to the arguments by states and NGO: s IHRL today promotes a broad definition of gender and specially highlights the protection of LGBTIQ persons. According to the Policy Paper, the prosecutor will interpret gender in relation to international human rights law as it evolves over time. Even though the ICC is not legally bound to apply the Policy Paper, it gives an indication to the court on how it should apply the law, since no other guideline under the ICC currently exists, and the OTP belongs to the same institution as the ICC. Although the ICC can only apply the definition contained in the Rome Statute, it would still be possible for the ICC to draw inspiration from the drafted convention, and having in mind that a narrow definition of gender does not reflect international CIL and most likely violates fundamental human rights, a violation of article 21(3) of the Rome Statute. Even though the definition of gender has been described as narrow, the phrase 'in the context of society' gives a window for the ICC regarding interpretation. Also, even though an argument may be that the reaction by states and NGO: s indicates that the definition in the Rome Statute not include LGBTIQ persons, this is up to the ICC to decide.
Hence, just as IRL can provide guidelines in relation to the application and interpretation of gender-based persecution, the proposed convention on crime against humanity, when adopted, can as well offer some guidelines for the ICC especially as a definition which speaks for a consensus in the international community and is consistent with international human rights law. Despite the different purposes of the Rome Statute and the proposed convention on crime against humanity, the convention can offer some guidelines for the ICC with regards to if a narrow or broad definition of gender is preferable in the light of international human rights law. Since an "undefined" pattern was chosen at the Rome Conference the proposed convention can provide directions for the ICC.
44
6. Summary and analysis Persecution has been a part of ICL ever since its foundations and can be described as one of the core international crimes as well as one of the most unique crime against humanity. The core elements of persecution have been developed before the ICTR and primarily, the ICTY, and therefore provides important guidelines for the ICC with regards to the interpretation and application of the crime.
Under the Rome Statute, the crime is composed of six elements. Except for the general chapeau elements, the act in question must be conducted with the specific intent to severely deprive the targeted group of their fundamental human rights by reason on one of the listed grounds in the Statute. The severe deprivation must also be connected to one other crime under the statute. It is argued that the intent requirement for persecution makes the crime more similar to the crime of genocide than a crime against humanity, making persecution as the crime against humanity containing the highest bar considering the intention requirement. The intention requirement is also argued to be the strongest challenge in prosecuting the crime in general. Both the ICTY and the ICTR has stated that the deprivation of fundamental rights cannot be restricted to a specific number of fundamental rights. It is rather the gravity of the conduct taking place than which rights the targeted group been deprived of that is the important aspect. Hence, deprivation of judicial and economic rights is also included. It has also been stated that even if one specific single conduct does not reach the threshold for persecution, the tribunal or court must consider the whole context of the conduct taking place. This may lead to the fact that the conduct of several actions, together reaches the threshold for persecution. So far, only one judgment before the ICC relating to persecution has been delivered, based on a similar reasoning as the one used by the ICTY and the ICTR.
The elements of persecution and its core elements before the Nuremburg Tribunal, the ICTY, the ICTR and the ICC have been important to present and analyze in order to understand the interpretation and application of the crime, but also to understand the primarily purpose of this thesis, the complexity and difficulties of gender-based persecution. Since gender was not a ground for persecution before the establishment of the Rome Statute, no guidelines exist under ICL on how this specific ground should be approached, interpreted or applied by an international criminal court which adjudicates upon individual criminal responsibility. Since the definition of gender is a controversial topic, this thesis has presented the most challenging aspects concerning adjudicating upon gender-based persecution.
This thesis reaches the general conclusion that prosecuting gender-based persecution before the ICC faces primarily two challenges. The most significant one, is how the term 'gender' should be applied and interpreted. The debate surrounding the term indicates that gender-based persecution is controversial in the international community, and the absent of prosecutions of gender-based persecution most likely speaks for itself. The controversy of gender-based persecution is also illustrated by the fact that discrimination on the basis of sex and gender has been a part of IHRL and IHL for a long time, even before the Statutes of the ICTY and ICTR were drafted. This was more or less confirmed by the ILC already in 1996, just a couple of
45 years after the Statutes of the ICTY and ICTR entered into force. Despite this, the ILC decided to not include gender as a ground for persecution.
It has been argued that just providing a definition of gender and not the other grounds for persecution, indicates that gender-based crimes in general does not deserve equal attention as the other grounds for persecution, is less serious and that such an undefined definition would rather make the ICC prosecute gender-based persecution at a last resort. Only a few cases exist which is connected to gender-based persecution, but it is to argue that gender-based persecution has only been successfully prosecuted in just one case, even though possibilities existed in especially the Dominic Ongwen case. But it is also important to have in mind that the very first judgment on persecution in general, was delivered during the summer of 2019, after more than 20 years after the establishment of the ICC. This also shows the general difficulties in prosecuting persecution regardless of the connected grounds, considering its elements.
It becomes clear that the ICC must provide a definition that is strictly composed, does not violate the prohibition of analogy and neither violates recognized international human rights. The term 'in the context of society' indicates that the definition of gender cannot be limited to the biological sexes, otherwise using the word gender and not sex would be pointless and 'in the context of society' as well. The Policy Paper as well as the UNHCR clearly distinguish between sex and gender were "gender" refers to the social construction and behaviors and attributes expected of the biological sex assigned to the person and "sex" to the biological state of that person. Hence, a group challenging such behaviors and attributes, because of their sexual orientation or gender identity, and is targeted because of that, arguably constitutes gender-based persecution. Such definition would also protect LGBTIQ persons challenging behaviors addressed to their biological sex. It is also argued that it is the perpetrators identification of the group that is the important aspect of persecution and not how the victim identify themselves, which finds support both in cases from the ICTY and the ICC, a reasoning which logically extends to gender as well. If gender is interpreted as a social construction, taking expected behavior assigned to the sexes into consideration, this would not only protect LGBTIQ persons but also females and males challenging gender-specific expectations. The bigger picture would be considered, making it possible to take surrounding circumstances such as politics and religion into consideration.
Another concern is the definition of gender and the principle of legality. Even though in case of ambiguity the case will be adjudicated in favor of the prosecuted, it is argued that gender- based persecution cannot be interpreted in a manner that justifies discrimination. The interpretation cannot conflict with international human rights law and under IHRL, evidence exists that the protection of the rights of LGBTIQ persons is a part of IHRL. If gender is interpreted as a social construction, it would be possible to take expected gender roles into consideration, which also finds support under IRL, IHRL as well as the Policy Paper. The criticism of the first draft version of the convention on crimes against humanity, indicates that the definition in the Rome Statute risks to exclude LGBTIQ persons, which do not reflect CIL. As a result, the definition was removed, making room for a wide interpretation. Even though the ICC cannot explicitly rely on the proposed convention as a source of law, considering the
46 hierarchy of applicable sources under the Rome Statute and the principle of legality, it indicates that an interpretation excluding protection of LGBTIQ persons would violate the consensus of the international community and international human rights law. Hence, the criticism was apparently big enough to remove the definition. Even if the critic of using the same definition as in the Rome Statute may indicate that the "gender" under the Rome definition actually excludes LGBTIQ persons from protection, this has not yet been ruled upon and the interpretation can still not violate internationally recognized human rights.
Considering the debate surrounding the drafting process of the Rome Statute as well as the Policy Paper, it was not at the Rome Conferences decided that LGBTIQ persons should be excluded, otherwise this debate would not have existed. Thus, in the light of that debate, the wording of the Rome Statute and the position by the OTP in the Policy Paper, interpreting gender-based persecution to include protection of LGBTIQ persons does not violate the principle of legality. The position taken by both states and NGOs with regards to the proposed convention on crimes against humanity, indicates that a wide definition of gender is a consensus in the international community in general. The Policy Paper also states that gender shall by the OTP be interpreted in relation to IHRL as it evolves over time, which would exclude a permanent definition of gender, excluding a definition equivalent to the biological sexes. Even if the ICC is bound by the parameters of the definition of gender in the Rome Statute, inspiration from the drafting process of the proposed convention can be possible for the ICC to take into consideration, since the parameters of gender under the Rome Statute is clearly undefined.
With regards to contributions from IRL and the principle of legality, the ICTY early made clear that definitions contained under IRL would violate the principle of legality if directly applied in cases under ICL. However, it would probably not be an obstacle for the ICC to draw inspiration from IRL, especially not since the Policy Paper is the only guideline under ICL regarding gender-based persecution, which also makes references to IRL. The definition of gender under the Policy Paper and the definition provided for by the UNHCR are similar to each other which indicates that the OTP has drawn inspiration form IRL. The fact that the definition under IRL and the Policy Paper is similar (and the absent of other contributions under ICL) it will probably provide some edge to the definition provided for by the OTP and justify contributions from IRL. Drawing inspiration from already established definitions and principles probably better complies with the principle of legality, than not relying on anything at all. Except for the definition of gender, IRL can especially offer guidelines when it comes to acts amounting to persecution as well as the link between gender and persecution.
Another challenging aspect is the establishment of the causal link between the act of persecution and the gender of the victim being established. Some crimes such as forced pregnancy, rape and sexual slavery is already regarded as gender-related crimes under the Rome Statute. However, just because the perpetrator has committed a gender-related crime it does not mean that the crime was conducted with an intent to severely deprive the victim of their fundamental rights because of their gender. The causal link between gender and persecution must be established. On the other hand, a crime that is not gender-related may be conducted on the basis of the gender of the victim. Arguments under primarily IRL have been made that rape always
47 constitutes acts of gender-based persecution, since the conduct has been classified as gender- related and can therefore never be gender-neutral. Although, the strong intent requirement established by the ICTY clearly illustrates that just conducting sexual violence does not in itself amount to persecution. But this does not hinder the ICC from analyzing the reasons behind the rape in order to avoid gender-related and sexual violence exceptionalism. What is also important to consider is the low amount of prosecutions of gender-related crimes that have resulted in convictions. Today, only one successful case exists. Sexual violence has for a long time only been considered as a dreadful lust by the perpetrator or just as a by-product of the war, making justice for victims of sexual violence being far away. Having the history of prosecuting sexual violence and gender-based crimes in general in mind, it is possible to argue that adding an additional prerequisite will make gender-based persecution through the conduct of sexual or gender-based violence even harder to prove. Under gender-based persecution, it is not enough to state that sexual violence has taken place, the causal link between the sexual violence and the gender of the victim must be established. The gender elements and reasons behind the rape must be analyzed, especially since rape is considered as a gender-related crime. Also, ignoring the different roles of males and females also risks to exclude a gender- perspective which is more important than ever having in mind when ruling upon gender-based persecution, where the question on persecution because of the gender of the victim is crucial. The Ongwen case is a clear illustration of such exceptionalism.
The Policy Paper must be seen as an important step under ICL in relation to gender-related crimes, including gender-based persecution, and the importance of having a gender-perspective throughout the proceedings. The case Prosecutor v. Callixte Mbarushimana clearly illustrates the need for a policy and a guideline for the prosecutor in relation to gender-based persecution is important considering the evidence and arguments put forwards. In future cases, prosecutions of gender-based persecution will most likely not fall on the basis of flaws in argumentation by the prosecutor. Since the Policy Paper has clearly been inspired by IRL, as it refers to valuable presidents under IRL, this also gives legitimacy for the ICC to draw inspiration from IRL, particularly if argued and presented by the prosecutor. Important to note is that although the Policy Paper does not extend to the judiciary, it only applies in relation to the OTP. However, since no other guideline under ICL exists in relation to gender-based persecution and this is a Policy Paper provided for by the ICC as an institution, ignoring the Policy Paper would be considered as ignorant and conservative by the ICC.
Recently, the Pre-Trial decided that enough evidence existed in order to bring charges in the case of Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud. This will be the first case of gender-based persecution before the ICC, and will be the first opportunity for the ICC to explain the causal link and the definition of gender. The fact that the prosecutor in that case been able to illustrate the gender dimensions through religious rules and prosecute this as gender-based persecution and not just persecution based on religious belief, also indicates inspiration from the UNHCR. It will be interesting to see if the ICC will apply the work by the OTP and take the expected gender roles of the females persecuted into consideration.
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In addition to a legal dogmatic method, this thesis has also analyzed gender-based persecution by using a feminist method in order to analyze if gender-based persecution under ICL risks to exclude certain groups from protection. Taking the critique of feminist scholars into consideration, it becomes clear that ICL primarily represents the interest of the "male" community. The risk of excluding women and LGBTIQ persons, because of the "male" community, becomes especially clear in relation to gender-based persecution, when questions such as gender roles, gender expectation and gender perspectives are more important than ever to take into consideration. There are no question marks whether females are included under the definition of gender, the concern is rather related to the practical enforcement of gender-based persecution, which risks leading to a gap in the protection of victims of sexual violence, primarily women, were the discriminatory practice because of victims' gender been hard to identify, especially as regarding sexual violence. Even though the material presented most likely speaks for a definition of gender as a social construction, the wording of the Rome Statute risks defining sex as equal to gender, which directly excludes LGBTIQ persons. Hence, the "male" perspective of ICL becomes especially evident under ICL.
Conclusion This thesis reaches the conclusion that persecution is one of the most unique international crimes, which also makes this crime being one of the most challenging crimes, especially concerning gender-based persecution. The two most significant requirements are that the conduct was intended to discrimination on one the grounds listed in the Rome Statute. The special character of the crime results in primarily two challenging aspect of gender-based persecution, how gender should be interpreted and applied, and how the causal link between persecution and gender should be established. These challenges risks excluding primarily LGBTIQ persons from protection and victims of sexual violence, mostly women. Although, this thesis argues that the material presented in this thesis rather speaks for inclusion than exclusion of LGBTIQ persons. The Policy paper is so far the only legal document under ICL, which is, however, not binding for the ICC to apply. This thesis suggests that in addition to drawing inspiration from IRL it is also possible to draw inspiration from the proposed convention on crime against humanity. The convention, if adopted, cannot be directly applied by the ICC, but inspiration can still be drawn, especially if gender should be interpreted in a broad or narrow sense.
The first case related to gender-based persecution is currently pending before the ICC. Regardless of the outcome, the judgment will be a deal breaker and decide how far the protection of all human beings reaches before the ICC.
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