Addressing Gender Persecution through International Law

Author: Trendys Nyagaka

What Exactly Is Gender Persecution?

Evidence of gender-based crimes can be found in modern international criminal law judgments dating back to the World War II International Military Tribunals. However, until the adoption of the Rome Statute in 1998, the crime of persecution based on gender was not enumerated. Before the Statute, the crime of persecution only applied to political, racial, or religious grounds. (Strych 2023)

Despite over two decades of official recognition, gender persecution is rarely specifically documented, which means that perpetrators often avoid accountability or are only prosecuted for the or connected or underlying crimes, none of which fully represent their criminal conduct.

The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda were the first to charge sexual violence, which led to the beginning of its international recognition, and the Rome Statute was the first international treaty to declare gender-based persecution a crime against humanity. (Strych 2023)

The ICC’s Rome Statute defines gender persecution as the intentional and severe deprivation of fundamental rights in violation of international law because of the group’s identity, (Rome Statute) and according to the ICTY, the term ‘fundamental rights’ should be broadly interpreted. (Prosecutor v Kupreskic 2000) The Policy on Gender Persecution also affirms this broad interpretation of what constitutes a “fundamental right”:

“Gender persecution may deprive a person of the right: to life; to be free from torture or other inhumane or degrading treatment or punishment; to be free from slavery or the slave trade, servitude, and retroactive application of penal law; to freedom of assembly, opinion, expression, movement, and religion, including the right to be free from religion.” (Warren 1994)

Why Does This Matter?

For a large portion of the Rome Statute’s existence, gender persecution had not previously been prosecuted, leaving a gap in the development of international criminal jurisprudence. As a result, whether in international or domestic courts, gender persecution is rarely investigated or charged, and despite its frequent occurrence, it is not documented in history. (UN Women 2021)

Furthermore, due to the global prevalence of gender-based discrimination, the path to accountability for the crime against humanity of gender persecution will remain difficult. In addition to that, societal acceptance of gender-based human rights violations as the norm and baseline, just as many states use torture tactics as punishments or as a means of gathering information, can make it difficult for investigators, prosecutors, and judges to recognise rights violations targeting or affecting genders as grave violations of fundamental rights. In some cases, gender inequality can make it difficult for victims and survivors of gender persecution to identify as victims.

A few instances of gender persecution include;

• In Iran, a fifty-five-year-old woman was arrested and imprisoned with her arms full of groceries, where she received eighty whiplashes because her headscarf had slipped back from her forehead and a lock of her hair was visible. (Goodwin 1994) 
• In India, a young widow is expected to throw herself on her deceased husband’s funeral pyre, despite the Indian government’s official prohibition, because Indian society no longer considers her to have a reason to exist without her husband. (Cipriani 1993)

Proposed Solutions

Nonetheless, accountability for gender persecution has the potential to be a powerful tool in the fight for gender equality. Redressing gender persecution would promote a survivor-centred or victim-centred approach and recognise their rights to participate in peace and transitional justice mechanisms. Finally, it would contribute to the establishment of long-term peace by disrupting the institutionalisation of gender discrimination and violence in existing law and practice.

When looking at the question of what efforts have been made in the field of gender persecution, we can turn to the 2022 Policy Paper, published to provide guidance for a specific sexual and gender-based crime: the crime against humanity of gender-based persecution. The policy paper broadens the definition of gender, provides a framework for pursuing gender persecution claims, and provides additional guidance on identifying gender persecution. (The Policy Paper on Sexual and Gender Based Crimes 2014)

The alleged gender persecution is directed at men rather than women in both Prosecutor v. Ali Muhammad Ali Abd-al-Rahman and Prosecutor v. Mahamat Said Abdel Kani, though the use of sexual and gender-based crimes to seek justice for male victims is still uncharted territory, particularly in the context of gender persecution (Strych 2023). These ongoing trials show that the Policy on the Crime of Gender Persecution is a useful tool for navigating the recent practice of prosecuting gender persecution.

Although the vast majority of the world’s societies are patriarchal, two of the three cases where gender persecution charges were confirmed involved men. The MADRE report, which found widespread gender persecution of women under Taliban rule in Afghanistan, exemplifies this prosecutorial gap. There will be no justice for many victims of gender persecution until more charges are brought and confirmed for gender persecution against women and female-presenting persons.

International law, and specifically International Criminal Law is evidently critical in addressing gender persecution. The Policy Paper already establishes a framework for pursuing gender persecution claims, and its application has already yielded positive results in gender persecution prosecutions. By recognising gender persecution as a crime against humanity, we can take a step toward a more just and equitable world.

References

1. Cipriani L, ‘Gender & Persecution: Protecting Women Under International Refugee Law’, 1993.
2. Goodwin J, ‘Price of Honour: Muslim Women Lift The Veil Of Silence On The Islamic World’, 1994.
3. ICC Office of The Prosecutor, Policy Paper on Sexual and Gender-Based Crimes, International Criminal Court, 2024.
4. ‘Identifying Gender Persecution In Conflict and Atrocities: A Toolkit for Documenters, Investigators, Prosecutors, and Adjudicators of Crimes humanity Humanity’, UN Women, 2021.
5. Prosecutor v Kupreskic et al (Trial Judgement) (2000), International Criminal Tribunal for the former Yugoslavia.
6. Rome Statute of the International Criminal Court (2002)
7. Strych K, ‘Prosecuting Gender Persecution: An Analysis Into the 2022 Policy on the Crime of Gender Persecution Through Inherited Cases’ Seton Hall Law.
8. Warren F, ‘Women are Human: Gender – Based Persecution Is a Human Rights Violation Against Women’ 5 Hastings Women’s Law Journal 2, 1994.