The Potential of Gender Persecution in ICC Case Abd-Al-Rahman: A Twofold Opportunity to Interpret its Customary Status and Intersectional Discrimination

[Ana Martín is a PhD Researcher at the Transitional Justice Institute, Ulster University, investigating the topic intersectionality and sexual and gender-based crimes.]

The Appeals Chamber (AC) Confirmation of Jurisdiction Decision in Abd-Al-Rahman (1 November 2021) sets a substantive precedent regarding the challenging harmonization of two articles of the International Criminal Court (ICC, Court) Rome Statute (Statute): article 22 (1) establishing the principle of legality or non-retroactivity (nullum crimen sine lege) in international criminal law (ICL) and article 21(3) requiring interpreting and applying the law in consistency with international human rights law (IHRL). The Decision concerned the examination of the Court´s jurisdiction over a situation affecting a non-Party State (Sudan), referred by the Security Council (SC) (UNSC Res 1593 (2005)) under article 13(b), following the Defence´s allegation that the proceedings violated the principle of legality because Sudan was not a State Party when the crimes were committed (para 3).

The AC addressed the jurisdictional challenge by reviewing the Pre-Trial Chamber (PTC)´s interpretation of the principle of legality (Impugned Decision). According to the PTC, the conducts charged were, at the time of perpetration, in force for Sudan and, in any event, the reach of jurisdiction was ‘broadened’ through the SC referral (paras 40-41). Hence, the PTC found it ’unnecessary’ to engage in a legality check to determine whether the crimes were criminalised either under Sudan´s national law or as customary international law (CIL) (para 42). 

The AC overrode the PTC affirming the need to examine, for a national of a non-Party State, whether the conducts charged were criminalised at the contested time (para 87). Thus, the AC performed a legality check in two steps. First, it established the need to examine the legality of the crimes under article 22(1) by ensuring consistency with IHRL, according to article 21(3). Second, the judges found this requirement fulfilled seeing the crimes representative of CIL (para 89). From this understanding, they concluded that it must have been reasonably foreseeable and accessible for the Accused, in his position as a commander, the possibility of facing international criminal responsibility for the crimes (paras 83-86, 90). With this, the Chamber made an important finding: the ICC must assess the legality of the criminal conducts in consistency with IHRL standards considered CIL (whose status makes the crimes foreseeable).

The AC Decision is, however, ambiguous. While noting that the conducts charged constituted CIL, the majority suggested (Judge Ibáñez dissenting) the need to check this status for each individual crime to reach a final decision on this point: ‘[O]nly once a link is drawn with the charges in this case can the question of the legality of the charges be definitively answered’ (para 91). With this statement, the majority has opened the door to examine the customary status of the crimes charged in Abd-Al-Rahman. This scenario affects charges of gender persecution, whose journey in ICL has been shorter. Gender, as a persecutory ground, was first foreseen by the ICC Statute (article 7(1)(h)), and the question of determining its status is unprecedented. Al Hassan, where the Court is also examining gender persecution, concerns a State-Party (Mali), resulting in its automatic jurisdiction regardless the status of the crime.

This opinion addresses the nature of gender persecution in international law in view of the Abd-Al-Rahman Confirmation of Jurisdiction Decision suggesting the need of checking its status. Also, delving into the nature of persecution in this case, attention is drawn to the fact that the PTC has confirmed charges of gender persecution ‘combined’ with ethnic and political grounds (counts 21 and 31) and, therefore, will require the Court´s examination of the nature of compounded or intersectional discrimination. Accordingly, the post sees an opportunity to look into the meaning for the ICC of interpreting intersectional discrimination underpinning persecution charges in Abd-Al-Rahman, in consistency with IHRL under article 21(3) of the Statute – considered by the AC in this case part and parcel of the legality assessment of international crimes.  

The Customary Prohibition of Gender Discrimination

The customary nature of persecution is unmistakable. The Draft Code of Crimes against the Peace and Security of Mankind (1996) codifies persecution noting political, racial, ethnic and religious grounds (article 18 (e)), thereby, reflecting accepted law such as the Nuremberg Charter (article 7 (c)) and the statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY article 5(h)) and Rwanda (ICTR article 3 (h)). Gender discrimination should also be considered a customary ground, of more recent evolution. According to the CEDAW Committee´s General Recommendation  (GR) Nº 35 (2017 para 2), backed by the European Court of Human Rights (ECtHR Volodina v Russia 2019 para 55):  ‘The opinio juris and State practice suggest that the prohibition of gender-based violence against women has evolved into a principle of customary international law’, where, gender-based violence is defined as a crime inherently involving gender discrimination (CEDAW General Recommendation Nº 19 (1992) paras 1, 6, Interamerican Court of Human Rights (IACtHR)  Cotton Field 401-402,  ECtHR Opuz v Turkey para 200).

As the customary recognition of gender-based violence (ergo gender discrimination) has taken place within the ambit of the CEDAW Convention, which focuses on the elimination of violence against women (article 1),the question arises: ‘Does the customary prohibition of gender-based violence apply to men?’ This directly affects Abd-Al-Rahman because the charges of gender persecution refer to the targeting of ‘Fur males’ by depriving them of ‘fundamental rights, including the rights to life, and not to be subject to torture or cruel, inhumane or degrading treatment’ (counts 21 and 31).   

The prohibition of discrimination, enshrined by article 21(3) 2^nd prong of the Statue, requires interpreting and applying all the law without ‘any adverse distinction’ on ‘grounds such as gender defined in article 7’, which refers to ‘male and female within the context of society’. Therefore, interpreting the status of gender persecution in Abd-Al-Rahman by considering it a customary prohibition applicable to women but not to men would be an impermissible distinction in violation of this statutory provision.

Non-discrimination is, additionally, a fundamental ‘principle’ of international law legally binding for the Court as a source of law (article 21(1)(b)). The importance of non-discrimination in international law is reflected in the place accorded to this principle, recognized in the chapeau of all IHRL instruments (e.g. article 2 of the international covenants, here and here), leaving little doubt about its customary status. As Judge Pikis noted in his separate opinion in Lubanga (para 3), the extent to which a norm is ‘incorporated in international instruments denotes comprehensive assent to its emergence as a principle of customary international law.’ The principle of non-discrimination – including on gender – underpins the whole structure of international law and is considered to belong to ius cogens (IACtHR Advisory Opinion Gender Identity paras 61,78).

The AC Decision in Abd-Al-Rahman, by suggesting the need for a legality check of the crimes under examination, creates an opportunity for the ICC to reaffirm the customary status of gender persecution in international law. This is done in full consistency with customary IHRL under article 21(3), based on the prohibitions of gender-based violence and non-discrimination.

Interpreting the Intersection of Gender, Political and Ethnic Discrimination

The PTC has confirmed persecution charges against Abd-Al-Rahman on ‘gender, ethnic and political grounds’ simultaneously in two counts (21, 31). It acknowledged: ‘The victims’ Fur ethnicity, combined with the socially constructedgender role presuming males to be fighters, underpinned theperpetrators’ perception of them as rebels or rebel sympathisers’ (emphasis added). This charging of persecution is different from ICC case Al-Hassan, where the Court is also examining multiple grounds, namely, gender and religion, although each ground belonging to a different count and being analysed separately (Confirmation of Charges paras 688-702). Therefore, it is worth noting that, while the Court´s approach to discrimination in Al Hassan is cumulative (as I explain here at 157-8), in Abd-Al-Rahman, it is compounded or intersectional, and will require examination of these grounds interlinked, compounding victims´ experiences of discrimination.

How will the Court interpret intersectional discrimination on gender, ethnic and political grounds dealing with persecution charges in Abd-Al-Rahman? A reasonable approach would be interpreting this element of the crime in consistency with IHRL, as required by article 21(3) of the Statute and underscored by the Confirmation of Jurisdiction Decision (para 89). Indeed, intersectionality is an IHRL paradigm to interpret gender-based violence, whose recognition has been led by the CEDAW Committee and is increasingly acknowledged as a tool to understand the complexity of discrimination (e.g. Human Rights Council, UN monitoring bodies, IACtHR para 290). The CEDAW´s GR Nº 28 (para 18) contains the main features of an intersectional analysis of discrimination: (a) it is a ‘basic concept’ to understand the nature of violations; (b) gender is ‘inextricably linked’ to other discrimination grounds; (c) victims´ experiences of discrimination are ‘different’ and (d) involve a ‘compounded negative impact’.

For the crime of persecution in Abd-Al-Rahman, adopting an intersectional approach to interpret the complexity of discrimination would allow a more sensitive analysis of various elements of this crime, including the specific discriminatory intent on group identity and the resulting severe deprivations of fundamental rights (Elements of Crimes 7(h)(1-3)). In so doing, by helping to understand and articulate the elements of persecution, including its causes (i.e., discrimination) and harms (i.e., fundamental rights violations), an intersectional perspective would allow the ICC interpreting and applying the law in a ‘new’ situation involving compounded discrimination in consistency with IHRL, as required by article 21(3).

Does intersectionality, an IHRL-based approach to discrimination, respect ICL´s principle of legality which requires interpreting the crimes ‘strictly’ and prohibits their extension by ‘analogy’ (article 22(2))? In other words, does intersectionality expand the definition of persecution in violation of the rights of the Accused in Abd-Al-Rahman? ICL must avoid a ‘mechanical importation or transposition’ of external standards to prevent distorting the unique traits of its proceedings (Furundzija TJ para 178). However, external interpretations are welcome if, instead of creating the law, they allow the bench ‘to impart meaning to existing law’ (Katanga TJ para 52), providing ‘clarification’ of the elements of a particular crime’ (Alekovski AJ para 127). As noted in Abd-Al-Rahman by the AC (para 89),and confirmed by the jurisprudence, an interpretation that respects the legality of the criminal conducts requires adopting standards universally recognized as CIL (Furundzija TJ para 178, Ntaganda AJ Second Jurisdictional Challenge para 54).

Intersectionality fulfils this role enhancing ICL interpretations as it involves the application of customary IHRL standards such as the prohibitions of gender-based violence and discrimination. Intersectionality is not a substantive standard to be implanted in ICL, but a tool to interpret complex discrimination processes underpinning violence through contextualization, capturing the dynamics and lines of force of discrimination (MacKinnon 1023-4). Intersectionality does not involve any concept foreign to ICL but is inherentto it. It addresses concepts such as the prohibition of discrimination and gender-based violence that (as above-mentioned) have become customary values in international law and, rather than distorting ICL, reflect binding international values for all States. The drafters of the Statute understood the growing relevance of these customary norms when they enshrined the prohibitions of discrimination and the protection of gender identity in the Statute (articles 21(3) and 7(3)). As these values are unpacked by intersectionality, adopting this approach becomes a practical way of enhancing understanding of the crimes while reinforcing the rule of law in ICL interpretations.

Conclusion

The Abd-Al-Rahman case hides a huge potential for the ICC in terms of developing the jurisprudence on gender persecution and of doing so in alignment with article 21(3), which requires interpretations consistent with IHRL and non-discriminatory. On the one hand, the Court may recognize the customary status of this crime, noting the fundamental prohibitions of gender-based violence and non-discrimination in international law. On the other, the Court may seek to understand a new situation involving intersectional discrimination underpinning persecution (gender, ethnic and political grounds), by adopting an intersectional approach which relies on the analysis of similar standards of non-discrimination – on gender and other compounding grounds.