Gender-based Persecution against Men: the ICC’s Abd-al-Rahman Case

[Dr Rosemary Grey is a lecturer at Sydney Law School.]

Last week’s hearing in the Abd-al-Rahman case, one of the ICC’s long-awaited ‘Sudan’ cases, marks a step forward in the Court’s practice in prosecuting gender-based crimes. It is the first ICC case in which crimes committed exclusively against men and boys have been expressly charged as gender-based crimes (specifically, as persecution on intersecting political, ethnic and gender grounds).

The case concerns war crimes and crimes against humanity allegedly committed against civilians in Darfur, during Sudan’s internal armed conflict in the early 2000s. On one side of this conflict was the Sudanese government and aligned militia, including armed horsemen known as janjaweed. On the other side were rebel groups that recruited mainly from the Fur, Zaghawa and Masalit tribes – groups perceived by their adversaries as “African” rather than “Arab”.

And caught in this clash were several million civilians, seeking to survive a horrific war in what the UN classifies as one of “least developed countries” in the world.

Many of those civilians were “deliberately and indiscriminately” attacked by the government-aligned forces during the conflict, according to the UN Commission of Inquiry in Darfur.

The ICC Office of the Prosecutor agrees. In several of the Sudan cases, it argues that government-aligned forces perceived villages that were inhabited primarily by Fur, Zaghawa and Masalit people as rebel strongholds, and therefore mercilessly attacked these villages, even though their populations were civilians and unarmed.  

The suspect in the courtroom last week, Ali Muhammad Ali Abd-al-Rahman*, is said to have fought on the government side. A senior janjaweed leader, he is alleged to have personally committed heinous crimes, as well as ordering, inducing, aiding and contributing to many others.

Kicking off the hearing last Monday, in her final court appearance as ICC Prosecutor, Fatou Bensouda sketched out the charges that she seeks to bring against Abd-al-Rahman. They cover incidents in which government-aligned forces allegedly attacked, raped, and murdered Fur men, women, and children, as well as incidents in which they allegedly rounded up and slaughtered male Fur civilians in cold blood.

The Prosecutor’s decision to foreground the gendered nature of the crimes allegedly committed against Fur men and boys is to be commended, as I argue in this post. However, we might ask why the alleged sexual crimes, which were apparently committed exclusively against Fur women and girls, are not likewise charged as persecution on intersecting political, ethnic and gender grounds.

A Long Lead Up

The hearing that started on Monday is a “confirmation of charges hearing”, in which the pre-trial judges vet the Prosecutor’s allegations and decide if there is sufficient evidence to send the case to trial.

This particular confirmation hearing has been a long time coming.  The victims have been waiting almost twenty years to see the suspect in court, and are still yet to see any of relevant government officials brought to The Hague, as victims’ counsel Paolina Massidda observed in court last week.  

The alleged crimes occurred in August 2003 and February-March 2004, while the ICC was still in its infancy (its first Prosecutor, Louis Moreno Ocampo, had only started in June 2003).  

As the ICC was finding its feet, Darfur was heading into a crisis. When they arrived there in 2004, the UN Commission of Inquiry found over one million people who had been internally displaced by the fighting, a further 200,000 who had fled across the border to Chad, and several hundred destroyed and burned villages throughout Darfur.

In 2005, the UN Security Council referred the situation in Sudan to the ICC. Thus began the ICC’s toxic relationship with Sudan, which until recently refused entry to ICC investigators, despite being legally obligated to cooperate with the Court in accordance with the Security Council resolution.

Moreno Ocampo initiated cases against leaders from both sides of the conflict, including alleged genocidaire Omar Hassan Ahmad al-Bashir, who until 2019, was Sudan’s President. He applied for Abd-al-Rahman’s arrest warrant in 2007, and the Pre-Trial Chamber issued the warrant that same year. 

Sudan would ignore that arrest warrant for over a decade. Thus, the Abd-al-Rahman case, and the other Sudan cases, made little public progress in this time. But there was some movement behind the scenes. For example, in 2018, Bensouda secretly obtained a second arrest warrant for Abd-al-Rahman, which expanded the localities covered by the case.

The overthrow of Bashir’s government in 2019 helped to move the Sudan cases forward. In June 2020, Abd-al-Rahman  surrendered himself to the ICC, apparently fearing arrest by Sudan’s new leadership. In late 2020, Bensouda and her team conducted a mission in Sudan, for the first time in the Court’s history.

Bensouda filed for confirmation of the charges against Abd-al-Rahman in March 2021, and the Pre-Trial Chamber will render its decision soon after Karim Khan begins his term as Prosecutor in June. Thus, the proceedings against Abd-al-Rahman will span three ICC Prosecutors, each of whom will bring their own approach to the case.

Gender-based Persecution Enters the Case

Over the case’s long pre-trial phase, the charges have expanded and developed.

The 2007 arrest warrant listed 51 counts of crimes committed against Fur civilians, which covered alleged indiscriminate killings, pillage, and property destruction in the towns of Kodoom, Bindisi and Arawal, as well as sexual crimes against the women of those towns. It also covered crimes in the town of Mukjar, when Fur men were allegedly rounded up, tortured, and killed.

“Gender” was not listed as a ground of persecution in the 2007 arrest warrant application, nor in the later arrest warrant application filed by Bensouda. However, some commentators suggested that the alleged sexual crimes against Fur women, and the alleged sex-specific killings of Fur men, seemed to constitute persecution on intersecting gender and ethnic grounds (here and here).

The charges were further refined in the Prosecutor’s 2021 Document Containing the Charges, which formed the basis of the confirmation hearing this week.

Those charges can be parcelled into two sets. Set one concerns crimes allegedly committed against Fur civilians in Sudan’s Wadi Salih province in 2003. Government-aligned forces allegedly raped at least seventeen women in this area, two of whom were subsequently shot dead, and killed at least fifty other Fur civilians (six women, forty-three men and one infant).

The rape allegations are based on multiple sources, including statements from the direct victims and other eyewitness. According to their accounts, unarmed women and girls were stripped, held to the ground by armed men and raped, sometimes in view of their families.

The second set of charges concern the slaughter of Fur men and boys in the towns of Mukjar and Delieg in 2004. The prosecution has identified at least eighty-seven Fur men and boys who were rounded up, detained in filthy conditions, beaten severely, and then killed in mass executions, often with their hands bound and their faces pressed to the earth.

As well as charging this litany of offences under applicable heads such as murder and rape, the Prosecutor has also charged it using the crime against humanity of persecution.

In fact, there are three counts of persecution in this case: Count 11 covers the crimes allegedly committed against Fur civilians in 2003; while Counts 21 and 31 concern the alleged detention, torture, and murder of Fur men in 2004.

In line with the ICC Elements of Crimes, these persecution charges distinguish between the group that was targeted, and the ground(s) on which they were persecuted.

For Count 11, the target group is “persons in Bindisi, Kodoom and surrounding areas (the populations of which were predominantly Fur) perceived as belonging to, or being associated with, or supporting the rebel armed groups”. The Prosecutor argues this group was persecuted on “political and ethnic grounds.” Gender is not listed as a ground of persecution, although this count covers the rapes allegedly committed against Fur women and girls, among other crimes.

However, gender is listed a ground of persecution in Counts 21 and 31.  In these counts, the target group is ‘Fur males in [Mukjar and Delieg] perceived as belonging to, or being associated with, or supporting the rebel armed groups”, who were allegedly persecuted on “political, ethnic and gender grounds.”

The gendered basis of Counts 21 and 31 is explained in the Document Containing the Charges, which states:

[T]he targeting of males during the Mukjar and Deleig incidents because of their presumed role in society as current or potential future rebel fighters was on the ground of gender. At Mukjar and Deleig, the 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.

Prosecution witnesses claim that some Fur men tried to disguise themselves as women, in order to avoid being arrested and killed. But many did not escape that fate, according to the evidence presented so far.

Comment

In the Abd-al-Rahman case, Bensouda and her team have interrogated the way that socially constructed ideas about gender – specifically, the idea that men and boys represent potential fighters – can contribute to extraordinarily violent crimes.

By listing “gender” as a ground of persecution in respect of the Fur men and boys, the Office of the Prosecutor has made these links between gender and violence explicit.

This charging strategy was not possible in previous international tribunals, whose statutes recognised persecution only on “political, racial and religious grounds.” But the Rome Statute extends that list to include other grounds, including “gender”.

The male-focused persecution charges in Abd-al-Rahman put that Rome Statute provision into practice, and help to correct the historic inattention to men’s experiences of gender-based violence in international criminal law.

As such, these charges are one of several ways in which the Prosecutor’s Office has advanced the Court’s gender jurisprudence during Bensouda’s term. The 2014 “Gender Policy” is another way; others include:

• securing convictions, which have been confirmed on appeal, for sexual crimes committed against child soldiers by their commanders (Ntaganda),
• securing the first convictions for forced pregnancy in any international criminal tribunal to date (Ongwen),
• bringing the ICC’s first charge of gender-based persecution, which related to female victims (Al Hassan), and
• identifying further possible examples of gender-based persecution in the Afghanistan and Nigeria situations.

As these examples show, gender is more than a buzzword for Prosecutor Bensouda and her Office. It is a conscious consideration, which affects how they shape their cases.

As such, we might query why the charges of gender-based persecution in the Abd-al-Rahman relate to male victims only. What are we to make of the fact that “gender” is listed as a ground of persecution for the massacres of Fur men, but not the sexual assault of Fur women?

These decisions are based on confidential evidence, making it difficult to comment on the charging approach in this case. Nonetheless, the case raises some difficult questions that might confront the incoming ICC Prosecutor in future proceedings from Sudan and elsewhere.

One question is: “how best to define the ‘group’ that is the target of persecution?”. In the Abd-al-Rahman case, the “group” to which the rape victims belong is defined to include Fur men, women and children in Bindisi and surrounds.

But only some of this group – namely, those who were subjected to rape – appear to have been targeted on the basis of gender. As such, introducing gender as a ground of persecution might require describing the rape victims as a separate group to the other civilians who were attacked in those locations.  

Another question is: when sexual crimes are committed exclusively against women and girls, as they apparently were in this case, how might the prosecution demonstrate an intent to discriminate on gender grounds?

It is well established that a discriminatory intent may be inferred from the perpetrators’ behaviour (e.g. Popović et al. para. 713; Krnojelac para. 184-186). But such behaviour often includes explicit statements by the perpetrators that make a discriminatory intent easier to prove.

For instance, in the ICTY’s Popović et al. case,the defendant’s use of the term “balija”, a derogatory word for Muslims, was seen as evidence of an intent to persecute on “political, racial and religious grounds” (para. 713).

Similarly, in the Abd-al-Rahman case, the Prosecutor has cited slurs that the perpetrators allegedly hurled at Fur victims, such as “tora bora” (rebels) and “nuba” (a pejorative term for black people) as evidence of an intent to persecute on “political and ethnic grounds.”

When it comes to sexual violence against women and girls, inferring an intent to persecute on gender grounds may be more difficult. Explicit statements indicating such intent may be rare, as the belief in men’s entitlement to women’s bodies is often so internalised, so normalised, that people do not think to articulate it.

In such cases, the most compelling evidence of an intent to discriminate on gender grounds may be the pattern of victimisation. That is, the intent may need to be inferred from the fact that women and girls comprise the majority, if not totality, of rape victims in a particular locale.

However, there seems to be no precedent in which a persecutory intent has been inferred solely from the pattern of victimisation. Hence, if the ICC prosecutors take this approach, they might  have to be the first.

Conclusion

The 2014 “Gender Policy” published by the ICC Prosecutor’s Office makes strong commitment to prosecuting sexual and gender-based crimes. Among other things, it vows that “the provision relating to persecution on the basis of gender – an innovation in the [Rome] Statute – will be utilised to the fullest extent possible.”

Almost twenty years since the Rome Statute entered force, we’re starting to see how far that innovative provision can go, and where its limits might lie.

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* The Prosecutor claims that the suspect also goes by the alias ‘Ali Kushayb’, a claim that is supported by the victims’ legal representatives on behalf of their clients, but which the Defence disputes.