Al Hassan: The International Criminal Court’s First Judgment on Gender Persecution (Part 2)

[Rosemary Grey is a Senior Lecturer at Sydney Law School, The University of Sydney.

Valerie Oosterveld is Western Research Chair in International Criminal Justice and Professor at the Faculty of Law, Western University (Canada). While she serves as Special Adviser to the Prosecutor of the International Criminal Court on Crimes Against Humanity, this post was written in her personal capacity, and she was not involved in the Al Hassan case.]

Although the ICC’s Al Hassan case seemed like a clear example of gender-based persecution, the Trial Chamber did not all see it in that way, as our previous post explained. Here, we delve into each judge’s reasoning on gender-based persecution, showing that there is some useful judicial analysis on this crime, as well as potential for judicial corrections on appeal. 

Prost and Mindua

Judges Prost and Mindua found that persecution on both religious and gender grounds had been established beyond reasonable doubt, forming a Majority on this point. 

Moving through the elements of the crime, they first found that Ansar Dine & AQIM severely deprived victims of fundamental human rights. In addition to the right not to be subjected to Rome Statute crimes, these were the rights to bodily integrity, to freedom of religion, and freedom from torture, cruel and degrading treatment. Women and girls were deprived of all of those rights and the rights to freedom of movement and freedom from discrimination on gender grounds (paras trial judgment 1527-1556). 

Next, they held that the victims belonged to an identifiable group, namely, the population of Timbuktu, whom the perpetrators saw as ‘ignorant’ and not ‘real Muslims’ (para. 1557-1560).

As to the ‘discriminatory grounds’ element, all three judges agreed this was persecution on religious grounds (paras 1562-1565). Prost and Mindua also found that there was persecution on gender grounds, finding that ‘Ansar Dine/AQIM members specifically targeted local women and girls by reason of their gender, depriving them of some of their fundamental rights because of the particular roles, expectations and conduct Ansar Dine/AQIM assigned to their gender’ (para. 1566). Prost and Mindua further linked the violence towards women in forced marriages to the ‘roles and expectations assigned to women by Ansar Dine/AQIM’, including their expectation that women in such ‘marriages’ had no right to refuse to have sexual relations with their ‘husband’ (para. 1572).

Here, Prost and Mindua cited evidence that the jihadists sought to control women and girls and subjected them to additional offences beyond those against the population at large, in line with their belief that women should stay home to take care of children and household affairs (paras 1568-1569). They noted that this control extended inside spaces such as hospitals and homes, which Ansar Dine & AQIM searched in order to impose ‘the correct implementation of the dress code’ on women (para. 1569). Recognising the cumulative impact of these discriminatory rules, they explained:

While Ansar Dine/AQIM did not prohibit women from going to the market or working, in fact women found it difficult to continue their regular trade due to Ansar Dine/AQIM’s rules and prohibitions and feared going outside, drastically reducing their activities outside of the home for fear of arrest and punishment.

para. 1570

Fourth, Prost and Mindua found that the deprivation of women’s and girls’ fundamental rights was connected to other crimes within the jurisdiction of the ICC, including Ansar Dine & AQIM’s use of torture and other inhumane acts to enforce their discriminatory rules (paras 1577-1578).

As to Al Hassan’s criminal responsibility, Prost and Mindua accepted the Prosecutor’s argument that he was liable for persecution on religious and gender grounds under Article 25(3)(d) of the Rome Statute (contributing to the commission of a crime by a group acting with a common purpose, where such contribution is made with the aim of furthering the group’s criminal purpose or with knowledge of its intent to commit a Rome Statute crime). Their Honours noted his knowledge of and deliberate involvement in the imposition and promotion of Ansar Dine & AQIM’s system of surveillance and punishment (paras 1727-1736).

Mindua

Despite finding that the charged crimes (including gender-based persecution) had been committed, Judge Mindua nonetheless indicated in his separate opinion that he would have acquitted the accused because the defences of duress and mistake of law applied.

For Judge Mindua, the ‘duress’ lay in the pressure to join the jihadists when they took power (notably, his Honour did not identify a threat of imminent death or of continuing or imminent serious bodily harm, nor discuss whether the defendant intended to cause a lesser harm than the one sought to be avoided). Indeed, he dismissed the prevailing approach to duress adopted in the Ongwen Appeals Judgment. The ‘mistake of law’ lay in the defendant’s belief that his actions accorded with Sharia. While it is not entirely clear from Judge Mindua’s decision, it appears from paras 57 and 124 that he did not consider flogging on its own as a criminal punishment to rise to the level of a crime (Mindua at paras 57 and 124).

Prost 

In her individual opinion, Judge Prost took a proverbial axe to Judge Mindua’s findings on duress and mistake of law, which she described as ‘devoid of legal reasoning and without any evidentiary support.’ (para. 3). She also emphasised the inseparability of gender and religious persecution in this case, stating: 

[I]n addition to, and in the context of, targeting on religious grounds, women and girls were not only particularly affected, but they were also specifically targeted on the basis of their gender. Accordingly the facts of this case support a conviction for the crime against humanity of persecution on the basis of two inseparable grounds: gender and religion. In particular, the conviction for persecution should reflect the multiple and intersecting nature of the targeting of women and girls by Ansar Dine/AQIM.

para. 26

Akane

By contrast, Judge Akane held that only religious persecution had been established. In large part, this was the flow-on of her finding that the sexual violence against women and girls in forced marriages and detention, along with the Heshah’s practice of detaining and punishing women who violated the dress code when Moussa was emir, fell outside Ansar Dine & AQIM’s ‘common purpose’. Thus, unlike the other judges, Akane did not regard the more extreme forms of violence against women as continuous with and enabled by Ansar Dine & AQIM’s dissemination of an ideology that disempowered women and made men their de facto masters. Rather, she appeared to regard the more extreme forms of violence against women as the work of a few ‘bad apples’. 

Judge Akane relied on the much maligned Katanga trial judgment for this point, stating: ‘the fact that rape was perpetrated in a coercive environment does not per se bring those acts of rape within a group’s common purpose’ (para. 32). This is despite the fact that those who created the coercive environment appear to have done so with the explicit shared purpose of controlling sexual and other aspects of the lives of women and girls in Timbuktu. 

This tendency to isolate the most conspicuous forms of violence against women from the jihadists’ gender ideology is apparent in Judge Akane’s incomplete use of the Prosecution’s submissions. After noting that Ansar Dine & AQIM’s ‘official position’ was to prohibit extra-marital sex, her Honour continued: ‘[t]he Prosecution itself has previously argued that the rape in detention ‘did not fit within the proclaimed ideology or the rules imposed by the [Ansar Dine & AQIM] Organisation in Timbuktu’ (para. 28). This selective excerpt misconstrues the position of the Prosecution, which had argued:

Rape in detention did not fit within the proclaimed ideology or the rules imposed by the Organisation in Timbuktu. Such rape, however, like forced marriages, was a direct result of the coercive and violent environment established and nurtured by the Organisation, aimed at asserting its power and authority over the population, including women.

OTP trial brief, para. 256, emphasis added

Reflections

As scholars whose primary lens is gender analysis, we find Judge Akane’s decision almost incomprehensible. ‘Almost’ because her Honour’s viewpoint is not an isolated example. Rather, and unfortunately, it continues certain past approaches in international criminal justice in which gendered violence was routinely erased from narratives of conflict and genocide. These now-discredited approaches were rooted in outdated assumptions about the nature of that violence as separate from and unconnected to other crimes committed by armed groups, and inaccurate conclusions about the evidentiary weight of any ‘policies’ prohibiting that violence within those armed groups.

As with Judges Mindua and Prost, we find it impossible to untether the rape, detention and ill-treatment of women and girls by members of Ansar Dine & AQIM from these groups’ gender ideology, their belief in their entitlement to control the minutiae of women’s lives, their imposition of rules that made it impractical for women to participate in public life, and their enforcement of those rules through institutions in which no women held positions of power.

To describe the violence and violations that women and girls experienced in this context as persecution only on ‘religious’ grounds is, to our eyes, absurd. Indeed, the primary reason that women’s rights advocates and like-minded states insisted that ‘gender’ be named as a ground of persecution in the Rome Statute was to correct centuries of blindness to the ways in which fighting forces use socially constructed gender norms, and gendered crimes, to control and punish civilian populations. 

While it remains to be seen whether the Prosecution appeals on this point, it does appear that Judge Mindua’s conclusions on duress/mistake of law and Judge Akane’s conclusions on ‘opportunistic’ sexual violence and insufficient evidence of gender-based persecution reveal appealable issues. We hope that the Appeals Chamber will be provided with the opportunity to revisit the issue of gender-based persecution, with a view to altering Al Hassan’s conviction in respect of persecution on both gender and religious grounds. 

Silver Linings

Yet if one looks beyond the immediate issue of an acquittal for gender-based persecution, there are some positive points in the analysis of Prost and Mindua, who form the Majority on the question of whether gender-based persecution occurred. 

First, their Honours’ discussion of the ‘roles and expectations’ assigned to women by Ansar Dine & AQIM follows the ICC Office of the Prosecutor’s view that the Rome Statute’s definition of ‘gender’ refers to the socially constructed meanings given to the categories of ‘male’ and ‘female’ in a given society. In particular, Prost and Mindua’s phrasing resembles the Office’s 2023 Policy on Gender Crimes, which interprets the Statute’s definition of ‘gender’ to include ‘social constructs and criteria used to define maleness and femaleness, including roles, behaviours, activities and attributes.’  

This is not the first time that ICC judges have favoured a social interpretation of the Rome Statute’s definition of ‘gender’. In the Abd-al-Rahman case, the Pre-Trial Chamber took a similar view when it confirmed a charge of persecution on political, ethnic and gender grounds in relation to the detention and execution of male Fur civilians by government-aligned forced in Darfur. Echoing the Prosecution’s submissions, the Chamber held that ‘[t]he victims’ Fur ethnicity, combined with the socially constructed gender role presuming males to be fighters, underpinned the perpetrators’ perception of them as rebels or rebel sympathisers’ (confirmation decision, paras 80 & 116). 

The affirmation of this interpretation in the Al Hassan case puts the Office of the Prosecutor in an even stronger position to make full use of the crime of gender persecution going forward, including the persecution of LGBTIQ people, in line with its 2022 Gender Persecution Policy. 

It may also have ripple effects beyond the ICC, including in national courts prosecuting gender-based persecution under domestic law (such as in Colombia), or in the United Nations’ Sixth Committee (legal committee), where states have been discussing whether to incorporate the Rome Statute’s definition of ‘gender’ into a potential new convention on the prevention and punishment of crimes against humanity.

In terms of positive points from Al Hassan, Prost and Mindua’s response regarding women’s status in Mali prior to Ansar Dine & AQIM’s occupation also bears noting. In its final brief, the Defence had argued that because women faced discrimination in Mali prior to Ansar Dine & AQIM’s occupation, the subsequent discrimination by these groups did not constitute persecution on gender grounds (see para. 591). Rejecting that contention, Prost and Mindua stated:

[t]he Majority considers irrelevant the Defence argument concerning the alleged existence of systematic discrimination against women embedded in Malian society, noting that the Chamber is tasked with assessing the charged acts and conduct in light of the legal requirements of the Statute, and not in comparison with alleged pre-existing domestic practices.

The point is critical. In this case, the conduct charged as gender-based persecution was not a continuation of the status quo ante, and in any case, it is no defence to assert that others have committed a similar crime. Moreover, victims in countries where women’s rights are more restricted must have the same right to justice and reparation for gender-based persecution as those in countries where women’s rights are more protected. Otherwise, the crime will have little meaning for the world’s most oppressed women and girls.

Photo attribution: “13-12-05-QIP in Timbuktu 23” by UN Mission in Mali is licenced under CC BY-NC-SA 2.0