Georgiana Epure joins JiC for this guest post on the trial of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud and the prospects of adjudicating gender-based persecution at the International Criminal Court (ICC). Georgiana is a fellow at the Open Society Justice Initiative. She holds an MPhil in Politics and International Relations from the University of Cambridge and an MA in Interdisciplinary Social Research from the University of Leeds. The views and opinions expressed in this article are those of the author alone and do not represent the position of any organisation.

Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud during an appearance before the ICC in July 2019. (Photo: ICC)

Yesterday marked the opening of the trial of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, the second Malian jihadist to appear before the International Criminal Court (ICC). After the ICC Prosecutor’s first investigation into the Mali situation pioneered the first conviction of destruction of religious and historical buildings as a war crime, the Court is now writing the jurisprudence on gender-based persecution as a crime against humanity. Whilst persecution on grounds of ethnicity and religion has been subject to extensive prosecutorial attention, gender-based persecution has never been adjudicated before.

Al Hassan’s alleged crimes in Mali

 One reason why the trial of Al Hassan is significant is because it concerns crimes that the Al Mahdi case left unaddressed. Al Hassan is facing charges of crimes against humanity and war crimes, including torture, persecution on religious and gender grounds, rape, sexual slavery, forced marriages, sentencing without due process, and attacking religious buildings.

The alleged crimes took place between April 2012 – January 2013. During this period, two Islamist extremist groups, Ansar Dine and Al Qaeda in the Islamic Maghreb (AQIM), occupied Timbuktu and the surrounding region in the north of Mali. Al Hassan was a de facto head of the Islamic police – one of the institutions through which the armed groups sought to impose their ideology and vision of religion. He was in charge of enforcing the new rules of a harsh version of Sharia law, by taking part in police patrols, arresting and detaining civilians, implementing sanctions imposed by the Islamic court, and participating in the policy of forced marriages. Considering that, so far, the ICC has handed down only one conviction of sexual and gender-based violence, the expectations regarding Al Hassan’s trial are high.

Gender-based persecution before the ICC

Apart from the Al Hassan case and the initial charge of gender-based persecution in the 2010 case of Callixte Mbarushimana, which was ultimately left out at the confirmation of charges stage, this crime was included in only one other investigation. The Prosecutor’s 2017 request for the authorisation of an investigation in Afghanistan – authorised by the Appeals Chamber earlier this year – alleges that, pursuant to the ideology of the Taliban, women and girls were targeted “to prevent them from studying,teaching, working or participating in public affairs, through intimidation, death threats, abductions and killings”. Due to the climate of fear, women and girls stopped working or going to school (para.116).

According to the 2018 Preliminary Examinations Report (para.225), the Office of the Prosecutor (OTP) is also considering evidence of gender-based persecution committed by Boko Haram and national security forces against female and male victims in Nigeria. The OTP found reasons to believe that the targeting of girls for attending public schools, the use of girls as suicide bombers, the targeting of males to fight for Boko Haram, and the selective execution of men of fighting age constitute acts of persecution on gender grounds.

What’s in a name?

The Rome Statute was the first international tribunal statute to include persecution on the grounds of gender as a crime against humanity. It was also the first statute to define the term ‘gender’. According to Article 7(3), gender refers to “the two sexes, male and female, within the context of society”. The definition has been criticised for conflating notions of gender and sex and for risking reinforcing binary notions of gender. As one commentator put it, the definition “awkwardly sits somewhere between a sociological and biological conception of gender […] but this constructive ambiguity also leaves room for creative lawyering”. Ultimately, it leaves much of the interpretation to the judges.

The OTP’s Policy Paper on Sexual and Gender-Based Crimes unpacks the Statute’s definition of ‘gender’, explaining that it “acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys”. As scholars who examined the preparatory work of the Rome Statute highlight, not only does the Statute’s drafting history confirm the view that gender, as defined in Article 7(3), is a social construct rather than a biological category, but this interpretation is also in accordance with international human rights law and practice.

Notably, some scholars emphasise that for the crime of gender-based persecution the term ‘gender’ describes the grounds on which a group is victimised, rather than the identifiable common feature that a group shares. Therefore, persecution takes place on the grounds of socially constructed ideas about what it means to be male or female, rather than the targeting of a group’s members because they are biologically male or female. This distinction is important because it underlines that persecution acts are motivated by discriminatory views regarding “appropriate” social behaviour for men and women.

Persecution on the grounds of gender in the Mali situation

 The Document Containing the Charges (DDC, p.378-394) notes that in addition to suffering religious persecution, enacted through rules such as banning talismans, religious practices, music, TV and alcohol, women and girls were also subjected to gender-based persecution. They were targeted for sexist reasons and severely deprived of fundamental human rights (DCC, para.1091-1092).

A set of new rules and sanctions were introduced in order to force them to conform to discriminatory gender roles and to control all aspects of their lives. Sexual and gender-based violence was strategically used as a tactic of the jihadists’ common plan to control and subjugate the people of Timbuktu (DCC, para.212, 882). Women and girls had to follow a strict dress code, including wearing gloves at the market in order to avoid touching men’s hands, were not allowed to speak in public with any men other than their husbands or brothers, had restrictions on freedom of movement, and were segregated from boys in schools. In addition to these discriminatory rules, they were raped, forcibly married, and subjected to sexual slavery (DCC, para.949, 960).

Severe deprivation of fundamental rights under international law is a key element of the crime of persecution. Given the cumulative effect of the underlying acts of persecution, women in Timbuktu were gravely deprived of fundamental rights such as: freedom from slavery, inhumane treatment and torture, freedom of religion, the right to be judged by an independent and impartial judge, physical integrity, the right to health, and the right to free assembly (DCC, para.972). These rights are enshrined in international human rights law, including in the Convention on the Elimination of All Forms of Discrimination against Women and the Maputo Protocol on the Rights of Women in Africa  – both of which were ratified by Mali.

Al Hassan’s trial and the quest for accountability for sexual and gender-based violence

 The Al Hassan trial constitutes an important moment in the adjudication of sexual and gender-based violence. The start of the trial this year is also symbolic given the anniversary role that 2020 has in the ecosystem of international women’s rights.

25 years ago, 189 states unanimously adopted the Beijing Declaration and Platform for Action – the first comprehensive blueprint document for women’s rights, including in armed conflict. Twenty years ago, the UN Security Council laid the foundation of the Women Peace and Security agenda by adopting Resolution 1325, which addressed, for the first time, the unique impact of armed conflict on women. Today, the WPS agenda recognises that sexual violence is a weapon of war, that sexual violence can amont to international crimes, and calls for enhanced criminal accountability (Resolutions 1820, 1888, and  2467).

In this context, Al Hassan’s trial is an important step in advancing the goals enshrined in the international system of women’s rights and in the adjudication of gender-based persecution. The case is of great relevance for future criminal cases on sexual and gender-based crimes, including in Myanmar regarding the crimes against Rohingya, and in Syria and northern Iraq concerning the crimes against the Yazidis.