Written by Lauren Thompson

Introduction

The International Criminal Court’s (ICC) judgment against the former chief of the Timbuktu Islamic Police highlights systematic violence against women and girls and stands as a pivotal moment in the fight for justice.¹Al Hassan case: a welcomed conviction that falls short of justice for victims of gender-based crimes, Int’l Fed’n Hum. Rts. (June 26, 2024), https://www.fidh.org/en/region/Africa/mali/al-hassan-case-a-welcome-conviction-that-falls-short-of-justice-for#:~:text=The%20judges%20recognised%2C%20by%20majority,war%20crime%3B%20the%20war%20crimes. This landmark case emphasizes the importance of recognizing gender-based violence as a crime against humanity and highlights how such violence, including sexual violence, forced marriage, and disproportionate rules and prohibitions for women and girls, can be understood within the international legal definitions of persecution.²Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC-01/12-01/18, Trial Judgment, ¶ 1567-68, 1572, (June 26, 2024). Despite the revolutionary legal concepts emerging from this case, several shortcomings will continue to hinder victims from receiving restorative justice. The crime of persecution was of serious gravity and carried the longest term of imprisonment (10 years) among the convicted crimes of Mr. Al Hassan.³Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC-01/12-01/18, Sentencing Judgment, ¶ 131 (Nov. 20, 2024). Mr. Al Hassan has been in ICC custody since March 2018, which will be deducted from his sentence of imprisonment.⁴Id. at ¶¶ 135-38. This leads to an important question: how is justice for the deprivation of fundamental rights measured?

Al Hassan Case and Gender Persecution

The ICC convicted Mr. Al Hassan of war crimes and crimes against humanity committed between April 2, 2012, and January 29, 2013, in northern Mali.⁵Situation in Mali: Mr Al Hassan convicted of war crimes and crimes against humanity committed in Timbuktu, Int’l Crim. Ct. (June 26, 2024), https://www.icc-cpi.int/news/situation-mali-mr-al-hassan-convicted-war-crimes-and-crimes-against-humanity-committed. Mr. Al Hassan rose to power in Timbuktu through the armed groups Ansar Dine and Al-Qaida in Islamic Maghreb (AQIM).⁶Id. This case has attracted attention for its treatment of gender persecution, which has long been sidelined in international criminal law.⁷Policy on the Crime of Gender Persecution, Off. Prosecutor (ICC), 4, ¶ 13 (Dec. 2022). In particular, the ICC focused on how violence against women and girls was used as a method to humiliate and control the population.⁸Al Hassan Trial Judgment, supra note 2, at ¶ 1572. A key finding includes the acknowledgment that the perpetration of gender-based violence, such as the imposition of disproportionate sanctions against women and violence specifically targeting women, can indeed constitute gender persecution.⁹Id. at ¶¶ 1567-68. This recognition builds upon the understanding that violence against women is not an isolated issue but part of a significant, systematic attempt to suppress and control specific groups.¹⁰Policy on Gender-based Crimes, Off. Prosecutor (ICC), ¶¶ 55–65 (Dec. 2023). This case moves beyond a narrow focus on physical violence (such as freedom of religion, expression, thought, association and assembly, movement, equality, education, privacy, personal dignity, security, and property) to include the systemic and gendered nature of persecution.¹¹Policy on the Crime of Gender Persecution, supra note 7, at ¶ 58; Prosecutor v. Al Hassan, ICC-01/12-01/18, Pre-Trial Chamber Decision on the Prosecutor’s Application for the Issuance of a Warrant of Arrest, ¶ 88 (May 22, 2018).

Severe Deprivation of Fundamental Rights

Persecution addresses the systematic denial of rights, such as the right to life, freedom, and dignity, which are often the result of gender-based violence.¹²Prosecutor v. Ntaganda, ICC-01/04-02/06, Judgment, ¶ 991 (July 8, 2019) (upheld in Prosecutor v. Ntaganda, ICC-01/04-02/06 A A2, Judgment on the appeals of Mr. Bosco Ntaganda and the Prosecutor against the decision of Trial Chamber IV of 8 July 2019 entitled ‘Judgment’, ¶ 1027 (Mar. 30, 2021)). In Mali, Mr. Al Hassan and Ansar Dine/AQIM perpetrated crimes of sexual violence, forced marriages, and the imposition of disproportionate, gender-specific rules and prohibitions, such as enforcing a specific dress code for women and girls.¹³Al Hassan Trial Judgment, supra note 2, at ¶¶ 1567-68, 1572. Ansar Dine/AQIM also used religious motives to target the Timbuktu population because they were described as “ignorant” and aimed to “teach or enlighten them with what Ansar Dine/AQIM considered the ‘real faith.’”¹⁴Id. at ¶ 1562. Additionally, Mr. Al Hassan severely deprived women and girls of their fundamental rights by restricting their ability to appear in public spaces and to engage in social and economic activities.¹⁵Id. at ¶¶ 1533, 1542. The ICC highlighted how women faced significant difficulties in going to markets and engaging in their regular trade activities due to the systematic restrictions imposed on them.¹⁶Id. at ¶ 753. Thus, this case illustrates how the intersectionality between gender and religious motives was used as a tool to ostracize and stigmatize women and girls, reflecting a broader effort to control and restrict women’s freedoms.¹⁷Id. at ¶ 1572.

Widespread or Systematic Targeting Based on Gender

The Rome Statute defines gender as the two sexes, male and female, within the context of society.¹⁸Rome Statute of the International Criminal Court, art. 7, ¶ 3. However, despite the seemingly binary approach, the phrase “within the context of society”  has been interpreted to refer to social constructs and criteria used to define gender, including sexual orientation, gender identity, and gender expression.¹⁹Policy on Gender-based Crimes, supra note 7, at ¶ 17. This interpretation widens the scope of protection and aligns with the evolving understanding of gender identity in international criminal law. This judgment also emphasized that victims of these acts were specifically targeted because of their gender.²⁰Al Hassan Trial Judgment, supra note 2, at ¶¶ 1533, 1542. This recognition is crucial because it confirms that gender persecution involves a specific intent to discriminate against individuals based on their sex characteristics, perceived gender roles, and socially constructed norms. Mr. Al Hassan was not simply committing violence, but rather, targeting individuals for who they were—specifically, for being women or girls.

The ICC has also determined that persecution is not an isolated act but rather part of a widespread or systematic attack against a civilian population.²¹Policy on the Crime of Gender Persecution, supra note 7, at ¶ 34. The Al Hassan judgment is critical because it acknowledges gender persecution within the larger context of international crimes, which often involve state or organizational efforts to control or dominate the civilian population.²²Id. at ¶ 61. In Mr. Al Hassan’s case, the Court emphasized that the systematic nature of the violence committed against women and girls was integral to the overall strategy of control and domination.²³Al Hassan Trial Judgment, supra note 2, at ¶ 1566.

Recommendations

Going forward, the Court must prioritize restorative justice for victims. Restorative justice, first, focuses on compensating victims and views crimes as a harm criminal justice should seek to undo and second, envisions crime as conflict and criminal justice as a form of conflict resolution.²⁴Miram J. Aukerman, Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice, 15 Harv. Hum. Rts. J. 41, 77 (2002). For example, in the Lubanga case with 854 eligible beneficiaries as of 2020 reparation programs include mental and physical health care, projects aiming to improve the beneficiaries’ socioeconomic situation (including schooling/education/vocational training and support for incoming generating activities), and subsistence allowances and pensions.²⁵The Lubanga Case, Tr. Fund Victims, https://www.trustfundforvictims.org/en/what-we-do/reparation-orders/lubanga#:~:text=Lubanga’s%20liability%20for%20collective%20service,reparations%20at%20USD%2010%20million; Lubanga case: Trial Chamber II approves the implementation of collective reparations, ICC (Mar. 4, 2021), https://www.icc-cpi.int/news/lubanga-case-trial-chamber-ii-approves-implementation-collective-reparations. In light of this, the Court must ensure its sentencing and reparations prioritize restoring victims’ dignity and well-being, fostering long-term healing and empowerment.

Conclusion: The Global Implications of Recognizing Gender Persecution

Ultimately, this decision challenges legal frameworks to consider the specific vulnerabilities faced by women and girls and reinforces the importance of understanding gender-based violence not only as a humanitarian issue but as a fundamental human rights violation. Despite its shortcomings, by acknowledging and addressing gender persecution in international criminal law, the ICC has taken a crucial step toward ensuring justice for all those who suffer from systemic violence of gender-based persecution.