On 20 November 2017, International Criminal Court (ICC) Prosecutor Fatou Bensouda formally requested judicial authorization to open an investigation into war crimes and crimes against humanity perpetrated in connection with the Afghan armed conflict. The investigation, if sanctioned by the Court’s Pre-Trial Chamber, would represent a feted shift in global justice, marking the first time in history an international tribunal has contemplated crimes allegedly perpetrated by US nationals. It would also mark the first instance, 20 years after the ICC’s establishment, that the Court is poised to interpret one of the most controversial terms in its statute – ‘gender’.
Reflective of political compromises and a tendentious negotiating history, the Rome Statute’s highly disputed definition awkwardly sits somewhere between a sociological and biological conception of gender: "For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society." But this constructive ambiguity also leaves room for creative lawyering. As much as the conservative side might emphasize "the two sexes", proponents of a more progressive and wide understanding could weaponize the words "within the context of society", which could potentially extend to members of the LGBTQ community. With the Pre-Trial Chamber III set in all likelihood to rule on the situation’s admissibility before its summer recess in July, the investigation into Afghanistan could very well be the litmus test for the Court’s gendered legacy.
Unpacking the gendered legacies of the ICC
The ICC’s unprecedented statutory emphasis on ‘gender’ led many to envision it as almost ‘feminist’ in its early days. A plethora of women’s rights NGOs and advocacy groups, united under the umbrella of Women’s Caucus for Gender Justice, played an active role in the drafting and discussions at the Conference of 1998. The outcome was the inclusion, both in armed conflict and otherwise, of a broad range of previously uncharted crimes of sexual and gender-based violence (particularly Articles 7(1)(g), 7(1)(h), 8(2)(b)(xxii), 8(2)(e)(vi)), as well as a commitment to interpreting and applying the statute without any adverse distinction founded on gender (Article 21(3)). The substantive emphasis on gender was also replicated in the Court’s institutional design. Of note is the requirement for gender expertise across the Court’s organs, including the appointment of an adviser on sexual and gender violence within the Office of the Prosecutor (OTP) (Article 42(9)).
The ICC’s statutory acknowledgement of gender was not agreed in a vacuum. Both previously and concurrently to the works of the Court, concerns about gender justice animated the jurisprudence of its ad hoc and hybrid counterparts. The International Criminal Tribunal for Rwanda, for instance, recognized in its landmark decision in Akayesu that rape is a constitutive act of genocide integral to the destruction of a group. In Furundžija, the International Criminal Tribunal for the former Yugoslavia held that rape and other forms of sexual violence can amount to war crimes. The ad hoc tribunals also recognized other forms of sexual and gender-based violence such as “sexual slavery, enforced prostitution, enforced sterilization, sexual mutilation, and public humiliation of a sexual nature”. The pioneering work of the Special Court for Sierra Leone on forced marriages and sexual slavery as ‘other inhumane acts’ has also paved the way for progressive jurisprudence, influencing the proceedings currently engaged at The Hague against Dominic Ongwen.
Be that as it may, the Court’s gender-sensitivity on paper has not exactly translated into tangible results. The ICC’s 2012 judgment in Lubanga failed to account for the widespread practice of rape in the Democratic Republic of Congo, with the OTP failing to charge any crimes of sexual or gender-based violence. A similar criticism could be made about the Court’s more recent decision in Al-Mahdi, where it failed to acknowledge sexual violence despite significant evidence to the contrary.
The tide might, nevertheless, be turning. The new Prosecutor has, since the beginning of her mandate, emphasized that she intends on taking gendered crimes more seriously. Her 2014 Policy Paper on Sexual and Gender-Based Crimes progressively defines such crimes as “those committed against persons, whether male or female, because of their sex and/or socially constructed gender roles.” In 2016, she successfully convinced the Court to issue its first and, to this date, only conviction of a sexual crime in the case of Bemba. And the proceedings currently underway against Ongwen also include the historically overlooked crimes of forced marriage and pregnancy.
How is the investigation into Afghanistan relevant to all this?
The 181-page prosecutorial request cites extensive evidence of what the OTP argues constitutes the crime against humanity of persecution on gender grounds (Article 7(1)(h) of the Rome Statute). This includes the denial of education for girls, allegedly perpetrated by the Taliban and affiliated groups in territories under their shadow governance. Notwithstanding its pervasiveness, both in war and peacetime, the crime of gender-based persecution was nonetheless not recognized in any international instrument prior to the Rome Statute, and has generally received little attention at the ICC. Aside from the initial charge of gender-based persecution in the Mbarushimana case, which then Prosecutor Luis Moreno Ocampo ultimately omitted, the crime has yet to be prosecuted by any international tribunal. This is in stark contrast to persecution on the more common grounds of ethnicity and religion, which have been subject to extensive prosecutorial attention. The investigation into Afghanistan could allow the Court to not only develop its jurisprudence on this uncharted crime, but also elucidate its understanding of the ‘g-word’.
The Pre-Trial Chamber’s decision on the admissibility of the Afghan situation appears all the more momentous, as jurisprudence on gender-based persecution appears imminent following the arrest of Al-Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud in March 2018. Allegedly a member of Ansar Dine (‘defenders of religion’), an Islamist armed militant group that controlled the region of Timbuktu, Mali between 2012 and 2013, Al Hassan is believed to have been the de facto chief of Islamic police that oversaw the group’s brutal imposition of religious rules. The arrest warrant, issued a mere two weeks before his surrender to the Court, mentions charges of persecution on the grounds of religion alone, as well as religion and gender.
With the Al Hassan confirmation hearing scheduled to start on 24 September 2018, the Pre-Trial Chamber’s decision on the Afghanistan situation offers the first opportunity for the Court to interpret the term ‘gender’, which could help shape the Court’s imminent jurisprudence on the issue. Though imperfect, the Rome Statute’s definition leaves plenty of wiggle room in-between understandings of gender as a social construct, the acknowledgement of intersectionality, as well as the potential inclusion of crimes against the LGBTQ community. In its 2011 annual report, for instance, the United Nations High Commissioner for human rights acknowledged that “homophobic and transphobic [attacks] constitute a form of gender-based violence, driven by a desire to punish those seen as defying gender norms”.
The following months could potentially be a significant step forward for gender justice, and could bring about an important clarification of crimes of sexual and gender-based violence. If sanctioned, the investigation into Afghanistan could also fulfill the corollary expressive function of registering worldwide condemnation of a historically sidelined and overlooked crime, signaling that, alike persecution on the traditional grounds of ethnicity and religion, gender-based persecution shocks the conscience of humankind.
Tiran Rahimian is a graduating BCL/LLB candidate at the McGill Faculty of Law and is currently a legal intern at the International Justice Department of Human Rights Watch in New York. Parallel to his studies, he clerks for the Chief Justice of the Quebec Court of Appeal, serves on the editorial board of the McGill Law Journal, and works as a research assistant. The views and opinions expressed in this article are exclusively those of the author.
 International Criminal Court, ‘Request for authorisation of an investigation pursuant to article 15’, 20 November 2017, para. 112 and following.