Gender Persecution Again a Focus for ICC in the Said Trial

[Adrienne Ringin holds a Bachelor of Arts (International Politics) and Juris Doctor from the University of Melbourne and currently works as a research assistant to Dr. Rosemary Grey at the University of Sydney with a focus on sexual and gender-based crimes at the International Criminal Court.]

September 26 2022 saw the opening of the trial in the case of The Prosecutor v. Mahamat Said Abdel Kani (‘Mr Said’), one of several International Criminal Court’ (‘ICC’) cases  originating from the Central African Republic. Mr Said faces charges of war crimes and crimes against humanity, including a charge of persecution on intersecting political, ethnic and/or gender grounds in relation to the alleged mass killings of men and boys. Persecution is found under Article 7(1)(h) of the Rome Statute (‘Statute’).

This inclusion of gender-based persecution is part of an apparent increased interest in this crime by the ICC. Gender-based persecution, and the crucial role it features in conflict situations, is starting to be placed at the forefront of the analysis of ‘the most serious crimes of concern to the international community as a whole’.  Moreover, the Said case is one of two recent ICC cases in which gender-based persecution is charged in relation to male victims, thereby challenging a widespread assumption that gender is synonymous with women. Such trials highlight that gender as a basis for being targeted is a reality experienced by people across the gender spectrum. 

Background

This is the second trial originating from the second situation in Central African Republic (‘CAR’), opened after a referral to the Prosecutor by the government of CAR on 30 May 2014. CAR II focuses on alleged war crimes and crimes against humanity committed in 2012 and beyond.

Mr Said is alleged to have participated in the Seleka uprising of 2012, an organisation which formed to overthrow the then President François Bozizé who had held power since 2003. Achieving a coup in March 2013, Seleka appointed their leader, Michael Djotodia, as President of CAR. From then until January 2014, incessant fighting ensued between pro-Seleka and pro-Bozizé forces. A thorough account of the conflict can be found from paragraph 6 in the Warrant of Arrest for Mahamat Said Abdel Kani.

Mr Said was surrendered to the ICC on 24 January 2021 and his initial appearance was conducted from 28 to 29 January 2021 in Pre-Trial Chamber II in front of Judge Rosaria Salvatore Aitala. The Confirmation of Charges hearing took place from 12 to 14 October 2021, and on 9 December 2021, Pre-Trial Chamber II partially confirmed the charges against Said. 

Pre-Trial Chamber II, in the Decision on the Confirmation of Charges against Mahamat Said Abdel Kani (‘Decision’), limited the charges against Mr Said to crimes allegedly committed at the Office Central de Répression du Banditisme (Central Office for the Repression of Banditry, ‘OCRB’), a detention facility in Bangui between 12 April 2013 and 30 August 2013. Notably, the charges relating to the other detention facility, the Comité Extraordinaire pour la Défense des Acquis Démocratiques (Extraordinary Committee for the Defence of Democratic Achievements, ‘CEDAD’) were not confirmed.

The violations alleged to have been endured by persons detained at the OCRB are detailed at paragraph 33 of the Document Containing the Charges (‘DCC’). Incidents include, but are not limited to, the detention of victims in small, dank, dark, and unventilated cells for various periods of time; beatings administered with the use of horsehide whips, sticks with metal wires, or rifle butts; physical mutilation; deprivation of food and water for numerous days; verbal threats of death; murder; and other torture methods. Victims were often denied medical treatment and access to legal counsel.

Mr Said is charged with direct co-perpetration under Article 25(3)(a) and ordering or inducing under Article 25(3)(b) of the Statute, due to being the alleged de facto director of the OCRB facility. While Mr Louis Mazangue was appointed the director, Mr Said was ultimately responsible for the running of the facility and was referred to as the ‘Colonel’ and ‘commander’ of the OCRB, often introducing himself as the ‘appointed Head of the OCRB’ as evidenced in paragraph 70 of the Decision Confirming the Charges. The Prosecution allege that it is due to this position of authority that Mr Said is responsible for these crimes.

The Gender Persecution Charge 

Count 7 contains the charge of persecution as a crime against humanity on political, ethnic and/or gender grounds. The Prosecution alleges that males with particular religious, political or ethnic identities were systematically detained and treated inhumanely by the Seleka, and therefore Mr Said.

Based on the documents released so far, the Prosecution appears to be inferring an intent to discriminate on gender grounds based primarily on evidence of the pattern of victimisation. This inference is made due to the existence of the ‘Seleka Policy’, an organisational strategy utilising factors of religion, ethnicity, location, and gender to ‘identify’ likely supporters of former President Bozizé (Pre-Confirmation Brief [49]). Christians, persons residing in specific neighbourhoods and those of the Gbaya, Mandja or Banda ethnicity were deemed to automatically support the Bozizé as they shared characteristics with the former president (Pre-Confirmation Brief [193]). While religious and ethnic factors fluctuated indeterminately, perceived political support and that the persons detained were male were the two constant underpinning characteristics of victims.  

The inference that Mr Said has the knowledge and intent to commit persecution on political, ethnic and/or gender grounds is supported by Mr Said’s role at the OCRB, namely that he had the ability and authority to coordinate and direct attacks against civilians, attacks which Mr Said sometimes participated in (DCC [24]). Such an instance was described by a prosecution witness who stated that Mr Said and others ‘would run their own arrests … and bring in men to the OCRB at night’ (Pre-Confirmation Brief [29]). The Prosecution state that Mr Said used his position which ‘created a coercive atmosphere conducive to the crimes’, held power over ‘at least 60 Seleka elements’ (DCC [23]-[24]) and in doing so he was ‘well aware of the discriminatory targeting of perceived supporters’ (Pre-Confirmation Brief [91]). It is this ‘implicit and explicit approval of the crimes’ which the Prosecution is so far relying on to make Count 7 (Pre-Confirmation Brief [250]). 

Increased Attention to Gender Persecution in ICC Cases

This is the third ICC trial that gender-based persecution has been alleged by the Prosecution and confirmed by a Pre-Trial Chamber. The two other cases, that of The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (‘Al Hassan’) and The Prosecutor v. Ali Muhammad Ali Abd Al Rahman (‘Ali Kushayb’) (‘Abd al Rahman’), are also currently at trial.

In the Al Hassan case, the charge of gender-based persecution concerns the enforcement of an extreme interpretation of Sharia law on the population of Timbuktu, Mali, by the organisations Al Qaida in the Islamic Maghreb and Ansar Dine. This strict interpretation harshly punished those who were determined to have transgressed laws on topics such as dress codes and the segregation of sexes. Women and girls were the particular focus of the regime and it is this strict interpretation and resultant implementation by the organisation leaders that the Prosecution allege resulted in the persecution women and girls.

The gender persecution charge in the Said case is akin to that being examined in Abd al Rahman. Both Mr Said and Mr Abd al Rahman are accused of committing gender persecution against men and boys, and without a link to a crime of a sexual nature (Abd al Rahman charges pg. 67-70). In both cases, the Prosecution argues that gender persecution took place due to the differential treatment experienced by males due to the socially constructed norm of males as both fighters and defenders of communities. This inference is well established throughout the materials submitted so far. 

The inclusion of this crime is a clear signal that the Prosecution and the ICC are invested in exposing the motivation underpinning the committal of crimes and in particular the intention to end the impunity for perpetrators of sexual and gender-based crimes. The ICC Prosecutor is currently developing a policy paper on gender-based persecution and has called for external consultation in order to ‘generate the most comprehensive policy’. It is hoped that such a policy, an update from the 2014 Policy Paper on Sexual and Gender-based Crimes, will ensure transparency and predictability for the Court and all parties in future cases.  

It must be noted, however, that there may be gendered elements that have not been adequately captured in any of the trials currently being heard. For example, the Warrant of Arrest in Said noted reports of rape of women and girls, however no charges as either a war crime or crime against humanity were made. Similarly in Al Hassan, the targeting of those utilising ‘witchcraft’ and ‘talismans’ was reported but not included as gender-based persecution even though the victims were male.  

Reasons for the omission could be the restrictive temporal or geographic scope of the trials (Said is limited to a five-month period only concerning one detention facility) as well as evidence gathering limitations which limits the types of crimes the Prosecution is alleging occurred. There are various valid explanations for the limits experienced, however it is important to critically question whether, and if so why, the experience of some has been relegated.

In addition to this, these trials and future trials must ensure that the lived experience of all genders are adequately considered when deliberating on the evidence to provide a nuanced understanding of the impact to victims to therefore adequately address the harm caused.  

The Said trial opening is available on the ICC media channels, with transcripts to be uploaded to the trial pages when available.