ICC Preliminary Examinations – Where is the Gender Analysis?

[Indira Rosenthal is a legal consultant in international human rights law and international criminal law, with specialisms in women’s human rights, gender justice, law reform and access to justice. She is currently a PhD candidate in the Faculty of Law, University of Tasmania, Australia, researching possible impacts of (mis)understandings of ‘gender’ on accountability for atrocity crimes at the ICC.]

As the ICC ‘s third decade and the term of its third Prosecutor, Karim Khan, get underway, forensic examination of its every move continues unabated. This includes its record on investigation and prosecution of sexual violence and other gender-based crimes (SGBC). 

In an interview prior to his election, Khan said that he would review the ICC Office of the Prosecutor’s (OTP) SGBC Policy 2014, now in its eighth year of operation. The Policy was a central part of the former Prosecutor Fatou Bensouda’s push to elevate SGBC and improve the ICC’s record on investigating and prosecuting these crimes. It applies to all OTP activities, yet it has not been subjected to a comprehensive evaluation by ICC watchers or the OTP itself. A review is critical and must include, as a central element, examination of the Policy’s application to the preliminary examination (PE) process because this is an aspect of the OTP’s work that seems to need a thorough gender analysis. 

Gender and the ‘Preliminary Examination’ Process 

Those behind the push to establish the ICC as the most gender responsive and competent of any international criminal court or tribunal – feminist scholars, activists and practitioners – continue to monitor and critique the ICC’s record on meeting its Rome Statute mandate and potential on ‘gender’. 

However, the way in which the OTP approaches SGBC allegations in its PE activities remains under-scrutinized. Plenty has been written about PEs, including FIDH’s recent survey of PEs under Bensouda. There is also a large body of work on the ICC’s jurisdiction over, and track record in prosecuting, SGBC. But, with limited exceptions (e.g. Tandon, Tandon and Lalit; Chappell, Grey and Waller; Kapur; de Vos), the scholarship has not addressed the intersection between the two, and no comprehensive gender analysis of this important part of the OTP’s responsibilities has been undertaken. 

Preliminary examinations are the critical first step contemplated in the Rome Statute on the pathway to trials of individuals for ICC crimes. All of the 100’s of allegations conveyed to the Prosecutor each year go through a vetting process to determine if a formal investigation is warranted. If a basic threshold for credibility is met, the Prosecutor must then assess if the ICC has the authority to prosecute the allegations, including whether they could amount to ICC crimes (‘jurisdiction’), the allegations are sufficiently grave (‘admissibility – gravity’) and have not been, or are not being, dealt with in another court (‘admissibility – complementarity’). The last phase of this preliminary examination asks if there are any ‘interests of justice’ reasons not to open an investigation. 

The process is contemplated in the Rome Statute (articles 15(6) and 53), but fleshed out in the OTP’s PE Policy 2013 and, in relation to allegations of sexual violence or other gender-based crimes, Part IV of the SGBC Policy. The core of the SGBC Policy is the requirement for OTP staff to apply a gender perspective to all aspects at every stage of their work, and to conduct gender analyses to expose ‘whether, and in what ways, crimes, including sexual and gender-based crimes, are related to gender norms and inequalities’ (SGBC Policy, 4). 

Eighteen PEs were conducted by the OTP during Bensouda’s term following the adoption of the SGBC Policy (i.e., July 2014-July 2021). A close document analysis of the OTP’s public PE reporting in this period raises a question as to whether its policy framework and its PE practice are aligned. In particular, whether the OTP follows the SGBC Policy and integrates a gender perspective and conducts gender analysis in relation to all allegations of crimes it examines in its PEs. 

Which Crimes (Jurisdiction)? 

Of these eighteen, OTP reports reveal only two in which it is clear that it conducted gender analysis, namely Afghanistan and Nigeria. They were also the only situations under PE in this period in which the Prosecutor characterized attacks as the crime against humanity of gender-based persecution (Rome Statute, art. 7(1)(h)).

In both situations, victims were female and male and the alleged underlying crimes amounting to persecution were both sexual (e.g rape, sexual slavery) and non-sexual (e.g. conscription, killings, targeting girls’ schools). For example, the OTP’s reports on whether the crimes alleged in Nigeria fell within the ICC’s subject-matter jurisdiction, stated that, ‘[i]n line with its [SGBC Policy], the Office conducted further analysis into Boko Haram’s [sexual and non-sexual] attacks against women and girls… with a view to assessing whether such conduct was targeted at females because of their sex and/or socially constructed gender roles, and therefore could qualify as gender-based crimes’ (para 292). 

It also looked at whether non-sexual crimes targeting only males – killings of military aged boys and men (para 294) and the forced conscription of boys by Nigerian State Forces – were gender-based (paras 225-226). Similarly, on Afghanistan, the OTP reported that it considered if female ‘[v]ictims were deliberately targeted on a discriminatory basis based on … gender grounds’ (para 262). In both cases, the Prosecutor decided that they were, and that the attacks amounted to persecution on the ground of gender. 

Proving gender-based persecution necessarily requires analysis of the connection between the acts that underlie the persecution charge, such as killings or sexual violence, and the construction of ‘gender’, in order to uncover, and ultimately prove, discriminatory or persecutory intent. It is no surprise then that the OTP would conduct gender analysis here. 

However, between July 2014-July 2021, outside of the framework of gender-based persecution allegations in Nigeria and Afghanistan, the OTP’s PE reports did not discuss gender dimensions of alleged SGBC, or in what ways they may have been ‘related to gender norms and inequalities’ per the SGBC Policy (para 20). 

Gravity (Admissibility)

In the Afghanistan PE, the OTP also took account of gendered harms ensuing from the crimes. ‘Harm’ is one factor assessed to determine if the alleged conduct is of sufficient gravity to be admissible before the ICC. 

For example, the OTP indicated that it analysed the harms caused by a wide range of crimes, sexual and non-sexual, as well as relevant contextual factors (e.g. PE and SGBC Policies, paras 86 & 29 respectively). Specifically, it identified a range of social, economic and other harmful impacts of Taliban crimes that it characterised as gender-based persecution. Its analysis exposed harms beyond those caused by the persecutory attacks themselves, including longer-term and inter-generational gendered harms to female victims of the Taliban (para 206). It also included direct harms caused, for example by Taliban attacks on girls’ schools, as well as indirect harms caused, for example, by the killing or injuring of male family relatives (e.g. para 125). 

Behind this analysis is the acknowledgement of the context in which these crimes were committed, namely women’s low socio-economic status and lack of freedom and agency in Afghanistan under Taliban rule, which compounded the impacts on them of the Taliban’s crimes.^. 

However, OTP commentary on ‘gender’ in the context of its assessments of the gravity of allegations, has otherwise been almost non-existent, limited only to brief acknowledgements of the gendered phenomena of under-reporting of SGBC in the PEs of Venezuela (para 79) and Ukraine (para 183).

Complementarity (Admissibility)

With only one exception, the PE on the Central African Republic II (CAR II) situation, the OTP’s reporting has not included discussion of the gendered flaws that are found in many national criminal justice systems, and which even the most superficial gender analysis can expose. The OTP’s Article 53 Report on CAR II, in which rape as a war crime and a crime against humanity were alleged, stated: 

In line with its [SGBC Policy], the Office also assessed the existence of barriers to genuine proceedings, including discriminatory attitudes and gender stereotypes in substantive law as well as other factors related to SGBC (para 249).

This was the only occasion in which the OTP reported that it had considered the possibility of gendered barriers in a national legal system as part of a PE complementarity assessment.

Interests of Justice

No reasoning of any kind, including on ‘gender’, is reported publicly on the OTP’s determinations of the interests of justice test. As with the other PE phases, applying a gender lens here could affect a final determination on whether to recommend an investigation. 

For example, taking the views of victims into account is a relevant factor for the ‘interests of justice’ determination (Rome Statute, art 51(3)). Gender analysis would help to identify potential victims other than those who are the most prominent, powerful or easily accessed in the community. It might also reveal gendered and other biases of OTP staff, local contacts and other information sources relied on at the PE stage, which could affect the weight and credibility given to the views of different victim cohorts.  

A gender analysis at this stage should also lead to a more gender-sensitive and victim-centred approach to any subsequent investigation affecting, for example, how the OTP takes oral evidence, ensures witness protection and well-being and conducts outreach to affected communities. It might also disclose that the interests of victims would be better served by non-judicial mechanisms than by a formal ICC investigation. 

The Interests of Justice Policy 2007 (at 8) impliedly allows the OTP to take into account the existence of non-judicial mechanisms, such as truth-telling and traditional reconciliation measures, in this phase of a PE. Examining the powers and structures of such a mechanism from a gender perspective is essential to assess if its existence should have a bearing on the OTP’s ‘interests of justice’ determination. Gender analysis would expose, for example, discriminatory practices or structures that might exclude, formally or informally, women or other marginalised groups, such as ethnic minorities and LGBTIQ+ people, or which might impose gender discriminatory reparative measures, such as forcing rape victims to marry the perpetrator. 

Gender analysis could also reveal broader contextual factors affecting a person’s likely experience of, and ability to participate in, non-judicial mechanisms. These might include marginalisation of community members, security fears, fear/likelihood of stigmatization or reprisal, or lack of child care or other material support. While these factors may also be present in formal criminal proceedings, the OTP should have already considered this in its gender analysis of complementarity at the admissibility phase. 

What’s Next 

More detailed reporting on the application of the SGBC Policy to PEs would increase transparency of the process, the first of the OTP’s stated objectives in publishing regular PE Reports (PE Policy, paras 94-99). It would also enhance the legitimacy of the Court by promoting informed evaluations of the Prosecutor’s PE determinations. 

More detailed reporting would allow for informed assessments of whether and how the OTP is implementing the Policy and whether the Policy’s objectives are being met. These include: ‘ensur[ing] the effective investigation and prosecution of [SGBC] from preliminary examination through to appeal’ (SGBC Policy, para 6); and promoting genuine national proceedings of SGBC to advance ‘a culture of best practice’ in their investigation and prosecution (SGBC Policy, 22-25). 

Greater transparency in PE reporting should start with the 2021 annual PE report. Bensouda presented her PE reports to the annual December meeting of the Assembly of States Parties. This year’s meeting concluded without Prosecutor Khan having presented his 2021 report. The delay is an opportunity to add more detail on when and how the OTP’s applied its SGBC Policy to each PE during 2021.

Conclusion 

There are limitations in drawing conclusions solely from OTP documents created for its own purposes. Nonetheless, they convey the impression that its PE gender analysis is limited, largely confined to its determination of subject-matter jurisdiction and to those situations in which gender-based persecution is suspected. 

Consistent and diligent implementation of the Policy at each stage of a PE – jurisdiction, admissibility and interests of justice – and in relation to all crime allegations in all situations, is an essential element of accountability for sexual violence and other gender-based crimes. Ensuring that the OTP’s PE practice and its SGBC Policy are in sync is, therefore, critical to the fulfilment of a core mandate of the Court.