ICC Case Could Make History with Gender Prosecution

Last week, the International Criminal Court (ICC) began its presentation of what could be a landmark case for the prosecution of gender-based crimes. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (“Al Hassan”) has been charged with war crimes and crimes against humanity, including torture, rape, sexual slavery, and gender persecution surrounding Mali’s 2012-2013 internal armed conflict. The ICC has not had a standing conviction for persecution on the basis of gender due to the overturning of the conviction of former Congolese military leader, Jean-Pierre Bemba, in 2018.

The Al Hassan case has the potential to shine light on the unique harm perpetrators commit against individuals based on their gender, which enforces patriarchal social norms and increases the potency of their crimes. It could also chart a path forward for international criminal law to define gender.

Al Hassan is a high-level administrator of Ansar Dine (“Defenders of the Faith”) — a Malian political group organized to enforce and police strict Sharia Law. The people of Timbuktu were subjected to regulations on tobacco and alcohol use, dress codes, restrictions on music and celebrations, and religious freedom. Failure to comply was met with severe punishments.

In his capacity as the de facto chief of the Islamic police, Al Hassan executed court decisions to punish those found in violation of Sharia law, took part in the destruction of religious and cultural property, and participated in the policy of forced marriages against women and girls in Timbuktu. The practice led to repeated rapes and sexual enslavement.

Persecution on the basis of gender

While acts of sexual violence are expressly criminalized — alongside persecution on the basis of gender — as crimes against humanity in the Rome Statute, they are exemplary of patriarchal forms of violence that underlie many other crimes within the jurisdiction of the ICC. Perpetrators use rape and sexual violence to further weaponize rigid gender binaries that reduce women to their sexual and reproductive capabilities and enforce expectations of what it means to be a man or woman in society. These tactics intentionally exploit the shame, stigma, ostracization, and violence that survivors face due to patriarchal conceptions of “honor” to break the bonds of social cohesion within a group. As a result, the harm to victims and their communities is made more destructive and potent. These gendered experiences must be centered in all substantive crimes under the Rome Statute.

The Al Hassan case marks the first time in which the underlying offense of rape may be successfully held to prove gender persecution. Whereas Bemba was charged with the failure to prevent and punish these acts — where the extent of his power to do so was ultimately the reason the conviction did not stand on appeal — Al Hassan is accused of directly enforcing the policy of sexual slavery. While novel, using the offense of rape to prove an additional crime against humanity is not unprecedented.

In fact, the ICC has held that rape may be used to prove the distinct offense of torture so long as the necessary elements of both crimes are present. Earlier criminal tribunal cases recognized that “severe suffering inflicted for the purposes of discrimination constitutes torture,” finding that “discriminatory purpose” occurred when a women was raped during the internal armed conflict in Rwanda in 1994 because she was of the Tutsi ethnicity. Similarly, in Al Hassan’s case, the court should find gender persecution occurred where an individual was raped on account of their gender.

Defining gender persecution

But what does gender persecution mean? The Rome Statute narrowly defines gender as “the two sexes, male and female, within the context of society.” However, the ICC’s Office of the Prosecutor recently released a policy paper defining gender more expansively to acknowledge the social construction of gender — including roles, behaviors, activities, and attributes assigned as male or female. Civil society organizations and international experts have further called for the removal of the exclusionary definition entirely.

The Al Hassan case presents two diverging paths for international criminal law: broadly include gendered experiences or replicate historical obstacles to justice. While the Ansar Dine’s express policy of forced marriage and sexual slavery on the basis of their sex fits within the Rome Statue’s definition, other aspects may be excluded. Forced marriage is not solely about sex and biology but also about expected gender roles — wives, mothers, and domestic laborers. The Sharia law restrictions enforce social constructions of gender through dress code and behavior.

The Rome Statute’s current gender definitions also fail to reckon with the lived reality that morality-based laws have a disproportionate effect on the LGBTIQ+ community that may not conform to the expected behaviors, dress, and presentation of their perceived gender and the regime’s sanctions against “unorthodox practices,” including same-sex relationships.

Gender persecution and the underlying offense of rape directly implicate the patriarchal foundation of many mass atrocity crimes. The patriarchy is broadly understood as the male dominance over women in society, but this dominance relies on adherence to, and reinforcement of, the strict male-female binary. Thus, sexual violence committed against any gender can be understood as a tool of patriarchal violence. For example, cisgender men may be targeted as a means of emasculation or asserting power, cisgender women as a result of their perceived roles as mothers and keepers of family honor, and members of the LGBTIQ+ community as punishment for failure to adhere to these prescribed norms.

By incorporating a broader gender definition, the ICC has the groundbreaking opportunity in the Al Hassan case not only to link gender persecution to rape but also to acknowledge the underlying offense of rape as a means of enforcing a patriarchal social reality.



A previous version of this article stated that the Rome Statute intentionally omitted any protections for LGBTIQ+ people from persecution. Upon further review, we have concluded that the Statute does not explicitly exclude such protections and can therefore be used for actions to do so.