About the author(s):
Valerie Oosterveld is a full Professor at the University of Western Ontario Faculty Law, Canada. Her research and writing focus on gender issues within international criminal justice. She has published widely on the interpretation of sexual and gender-based crimes by international criminal tribunals and gender-sensitive investigation and prosecution. She is the co-editor (with Indira Rosenthal and Susana SáCouto) of Gender and International Criminal Law (Oxford University Press, 2022), which was awarded the American Society of International Law Women in International Law Interest Group's 2023 Scholarship Book Prize. She was awarded the 2022 Royal Society of Canada’s Ursula Franklin Award in Gender Studies. She is an active member of the Canadian Partnership for International Justice and provides regular media commentary on international criminal law issues. She has served on the Canadian delegation to various International Criminal Court-related negotiations, including the Assembly of States Parties, the 2010 Review Conference, and the 1998 UN Diplomatic Conference of Plenipotentiaries on the Establishment of an ICC. In this latter role, she negotiated various gender provisions.
Nicole Dotson is a third-year J.D. candidate at the University of Western Ontario Faculty of Law, Canada. Her research interests include international criminal law, cyberspace governance, and state responsibility, with additional focus on jurisdiction and transitional justice. She holds a B.A. in Honours Legal Studies from the University of Waterloo, Canada.
The case of Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mahomed Ag Mahmoud at the International Criminal Court (ICC) is precedent-setting for the ICC’s Office of the Prosecutor: it is the first case in which the crime against humanity of persecution on gender grounds has been litigated by the ICC, and the ICC is the first international tribunal to have jurisdiction over this crime. The May 2023 end of the Al Hassan trial came shortly after the Prosecutor’s adoption of the ground-breaking 2022 Policy on the Crime of Gender Persecution.
In Al Hassan, the Office of the Prosecutor alleges that both gender and religious persecution took place during the ten months the Malian city of Timbuktu was under the control of two armed groups, Ansar Dine and Al-Qaeda in the Islamic Maghreb (AQIM), from 2012-2013. The prosecution argues that Al Hassan was a prominent figure in this occupation, serving as a member of Ansar Dine and de facto chief of the Islamic police.
Al Hassan is charged with thirteen counts of crimes against humanity and war crimes under the Rome Statute of the ICC (pages 452-465). Of these, six are sexual or gender-based offences (i.e., rape as a crime against humanity and war crime, sexual slavery as a crime against humanity and war crime, forced marriage as an inhumane act, and gender persecution as a crime against humanity). Other charges are also associated with gendered forms of violence as part of the actus reus of the offence (i.e., torture as a crime against humanity and war crime, the crime against humanity of ‘other inhumane acts’, and the war crime of cruel treatment). The sexual and gender-based crimes help to create the necessary framework to support the gender persecution charge.
During the period in question, Ansar Dine and AQIM sought to enforce their interpretation of Sharia law by imposing numerous conditions on the citizens of Timbuktu. Many such rules particularly targeted women and girls. For example,female citizens were required to adhere to a strict dress code covering their heads and bodies, were banned from wearing traditional clothing or jewelry, were prohibited from being alone or speaking with men other than their husbands, and were prevented from going out at night, or to school with boys (page 13, line 17-18, page 44, line 25, page 45, lines 1-6).
The prosecution also presented evidence of an Ansar Dine leader preaching that women “must not speak seductively and softly. And they must not make tinkling sounds when they walk. And they must not embellish themselves” (para. 281). Witnesses testified about being targeted for violating these discriminatory and restrictive rules – as the prosecution put it, women and girls “were hunted down in the streets, in the schools, in hospitals and, sometimes, even in their own homes” and beaten, arrested, imprisoned under inhumane conditions, and raped if they did not comply (page 48, lines 1-3, pages 49-50 in full).
1. Gender Persecution
The Al-Hassan case represents the ICC’s first-ever prosecution of the crime against humanity of persecution on grounds of gender, found in Article 7(1)(g) of the Rome Statute. [While this crime had been included in the 2010 arrest warrant against Callixte Mbarushimana, it was ultimately excluded in the document containing the charges.]
The persecution charge also includes religious persecution, recognizing that victims were targeted both for their gender and for their religious beliefs.
The prosecution has argued that Al Hassan and other members of Ansar Dine and AQIM specifically and violently targeted women and girls for transgressing its gender-specific dress code, rules on segregation of the sexes, and other discriminatory gender-specific restrictive edicts (e.g. page 5 at lines 16-25, page 12 at line 14 to page 14 at line 24, page 44 at lines 1-12, 16-25 and page 45 at lines 1-6, page 57 at lines 2-11). These rules were based on the armed groups’ extremist interpretation of Sharia law and narrow conception of acceptable gender roles.
Persecution is defined in Article 7(2)(g) of the Rome Statute as the “intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”. The prosecution maintained throughout the trial that Al Hassan was involved in a range of gendered fundamental rights violations, such as forced marriages, sexual slavery, and rape, among others (para. 286). The prosecution also clarified that it was no defence for the perpetrators to have followed their own discriminatory rules:
A finding of persecution does not require perpetrators and victims to operate according to different rules. It requires that perpetrators should seriously deprive victims of their fundamental rights, while targeting them on the basis of discriminatory grounds and identity (page 15, lines 12-16).
The prosecution was required to demonstrate that the persecution was based on gender. The term ‘gender’ is defined in a skeletal way in the Rome Statute as “the two sexes, male and female, within the context of society”. The ICC Prosecutor’s Policy on the Crime of Gender Persecution augments this definition by indicating that ‘gender’ refers to “sex characteristics and social constructs and criteria used to define maleness and femaleness, including roles, behaviours, activities and attributes. As a social construct, gender varies within societies and from society to society and can change over time.” The ICC Prosecutor’s 2014 Policy Paper on Sexual and Gender-Based Crimes similarly indicates that the term “acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys.”
In explaining the socially-constructed gender norms forced upon the female population of Timbuktu by Ansar Dine and AQIM, the prosecution highlighted the far-reaching effects of the targeting:
This persecution which women endured … over months is symbolic of the persecution of the whole population of Timbuktu … The persecution of the women of Timbuktu affected the entire community. Any resident of Timbuktu … could have a mother, a sister or a daughter who had endured the severity and violence of the occupiers. When one strikes your wife in front of you, your sister in front of you, imprisons them, and you can do nothing, when your own mother is struck in front of you, you can’t say anything because you are unarmed, and, thereby, you lose your dignity too (page 58, lines 4-12).
The approach of the Trial Chamber to gender persecution in Al Hassan will be instructive as to how the ICC is likely to address this form of persecution in the cases of Prosecutor v. Mahamat Said Abdel Kani (pages 53, 58, 60) and Prosecutor v Abd-Al-Rahman (pages 69-70). Interestingly, both of these cases involve the targeting of males due to the socially-constructed assumption that males are fighters and defenders of communities. The analysis of persecution in the Al Hassan trial judgment will also be important for the preliminary examination of the situation in Nigeria (paras. 254, 256) and investigations in the Afghanistan (paras. 7, 20) and Myanmar/Bangladesh situations.
2. Rape and Sexual Slavery
The Prosecutor relied on evidence of rape and sexual slavery to support the gender persecution charge, but also charged these acts separately. This mode of indictment recognizes the criminality of the individual offences while also expressing their cumulative persecutory effect.
Counts 11 and 12 charge Al Hassan with rape as a crime against humanity and war crime, respectively. The prosecution brought evidence that women and girls were raped while being held in detention by the Islamic police, and within the context of forced marriages. As the prosecution stated in its closing argument, “Let me take one example, among others, where a victim narrated that she had been arrested. And what was her fault? Her veil had simply fallen or dropped. She was taken to the BMS [detention site of the Islamic police], she was raped by three men in turn. She was only 13 years old” (page 50, lines 16-18). The prosecution also relied upon defence witness D-060, who described a case of rape in which Al Hassan conducted the interrogation (page 31, lines 3-4).
The prosecution argued that these rapes “were a predictable consequence of the coercive environment” in the “occupied and overweaponised” city, and “the result of the intentional plan of Ansar Dine and AQIM who sought to impose their power and control over women and girls” (page 51, lines 4-14). The defence countered that there was no culpable link between Al Hassan and these crimes, as he neither knew about the sexual violence, nor did he play any role in precipitating or exacerbating the effects.
Counts 9 and 10 charge Al Hassan with sexual slavery as both a crime against humanity and a war crime. The prosecution relied on evidence of sexual slavery committed during the forced marriages of girls and women in Timbuktu to members of Ansar Dine and AQIM.
Sexual slavery, as both a war crime or a crime against humanity, has two consistent and essential elements. First, the accused must exercise powers attaching to the right of ownership over, or similarly restrict the liberty of, one or more persons. Second, this must cause said person(s) to engage in acts of a sexual nature.
The prosecution referred to a pattern of sexual slavery associated with the forced marriage system instituted by Ansar Dine and AQIM (page 54, lines 8-22). The system provided local women and girls to fighters as wives, circumventing the ban on sexual relations outside of marriage, and strengthened the control and integration of Ansar Dine and AQIM in Timbuktu.
The prosecution argued that Al Hassan was instrumental in facilitating sexual slavery, and personally organised a number of these ‘marriages’.
The defence, however, maintained that Al Hassan lacked the requisite knowledge and intent of these acts to satisfy the requirements for guilt.
3. Torture Charges
The prosecution also charged Al-Hassan with crimes that may not immediately appear gendered, but which were carried out as means to enforce gender discrimination. These charges included, among others, torture as war crime and crime against humanity (counts 1 and 3). For example, the prosecution put forward evidence of female victims subjected to public flogging and beating, and unfair court processes, for violating the laws imposed by Ansar Dine and AQIM such as being found in the company of a man (paras. 273, 301, 305) [see also here at page 41, line 13, and page 43, lines 3-4]. While the focus of the torture charges was not on rape and sexual slavery – as they were in the International Criminal Tribunal for the Former Yugoslavia’s Prosecutor v. Zejnil Delalic et al. case – the evidence of torture contributed to the gender and religious persecution charge.
Evidence was provided in the form of orders and reports signed by Al Hassan authorising torture, records of Al Hassan torturing prisoners for information, and videos of Al Hassan in the presence of torture being carried out (page 21, lines 3-4; page 28, lines 10-11; page 31, lines 7-8, 11-17, 24-25; page 32, lines 24-25; page 35, lines 16-21).
4. Linkage Evidence
Much of the evidence brought against Al Hassan by the prosecution is linkage evidence, intended to demonstrate indirect criminal responsibility by positioning him as the origin, or catalyst, for the charged crimes. Therefore, the success of the gender persecution and gendered crimes charges largely rests on this evidence. In its closing statement, the prosecution indicated that “Al Hassan … became omnipresent and indispensable within the Islamic police. There’s plenty of evidence of this: telephone data, witness statements, police reports, personal notes, crisis committee reports, committees representing inhabitants of the city, but also videos and expert reports” (page 22, lines 14-17). He was, in the words of the prosecution “present throughout the chain of repression”, a key figure in authority who was “personally involved in all of the tasks”, and “an important component in the overall system of persecution” (page 28, lines 21-24, page 33, line 14).
The defence contends that Al Hassan did not have the decision-making power and influence attributed to him by the prosecution, stating that “Mr. Al Hassan is not just a ‘little fish’ – he is plankton within the Timbuktu eco-system. He was part of the civilian population in Timbuktu, and had no role in the decision making apparatus of Ansar Dine: he neither influenced nor controlled the charged crimes” (para. 6).
5. Conclusion
Trial Chamber I closed evidence submissions in February 2023, heard closing statements in May 2023, and is now deliberating, with its judgement to be handed down in due course. The judgment in Al Hassan has the potential to be a landmark in the recognition of gender persecution and its underlying gender-discriminatory acts. It is the first step in operationalizing the ICC Prosecutor’s Policy on the Crime of Gender Persecution, and indicative of increased global attention to this crime. We see this in the insightful discussion of gender persecution throughout the Gender Strategy of the International, Impartial and Independent Mechanism for Syria (IIIM), and in the German case against ISIL member Sarah O, convicted of the crime against humanity of persecution of Yazidi victims on intersecting grounds of religion and gender.
As Deputy Head of the IIIM, Michelle Jarvis, recently noted, these are “signs of a growing commitment to addressing gender as a discriminatory driver of violence and atrocity” and key tools in “the quest for more inclusive justice outcomes that empower victims and survivors”. After all, she asks: “If we do not specifically identify and condemn the discriminatory drivers of crimes, what hope do we have of dismantling them as part of our quest for an atrocity-free, more peaceful world?”